Media coverage: Sydney Morning Herald

A NSW Supreme Court judge has condemned the treatment of a 35-year-old Indigenous man with a mild intellectual disability who has been subjected to a tough supervision order restricting his movements for more than a decade, saying he has not been a "truly free man" since his teens.

The five-year extended supervision order (ESO) made by the court in 2009 was "still current, 11 years later" because the clock stopped running every time he was imprisoned for even minor breaches of conditions.

Former NSW Director of Public Prosecutions Nicholas Cowdery, QC, who is now president of the NSW Council for Civil Liberties, said the legislation introducing ESOs and other orders "was radical and controversial at the time" and was based on "a risk of future offending of a serious kind" that was difficult to predict.

"It is a form of punishment for future conduct that may not occur. Nevertheless, Parliament has the power to legislate this way in order to protect the community, but within limits," he said.

Mr Cowdery said the laws provided "a powerful rod for the backs of disadvantaged or excessively targeted groups in the community, including Indigenous people, who may be subject to such orders".

"They become an easy tool for law enforcement to use to unreasonably seek to control such people."

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Media coverage: Canberra Times

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The Australian Government has released the Privacy Amendment (Public Health Contact Information) Bill 2020 (COVIDSafe Bill) which will be considered by Parliament this week. The COVIDSafe Bill largely reproduces the biosecurity orders which made it possible to begin to download and operate the COVIDSafe App (App).

The NSW, Queensland and South Australian Councils for Civil Liberties, along with the Australian Council for Civil Liberties, support the introduction of effective digital contact tracing if it is underpinned by robust privacy and transparency legislation.

The joint statement has been sent to the Prime Minister, the Attorney General and Opposition Leader, along with all MPs and Senators. 

Media coverage: Sydney Morning Herald

The Councils for Civil Liberties in NSW, Queensland, South Australia and the Australian Council for Civil Liberties issued a joint statement that backed the case for digital contact tracing but called for stronger safeguards.

'"More needs to be done to ensure that the app does not compromise data protection and thereby increase the risk of illegal and inappropriate use of data or surveillance of Australians," they said.

"It is also disappointing that the government has opted for centralised data storage in a national COVIDSafe data store rather than adopting the widely supported and more privacy-friendly decentralised option.

"Cyber attacks and accidental and illegal data breaches will continue to occur on Australian government databases. This storage choice creates a real risk of such breaches and will undermine users' confidence as to the safety of their private data."'

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Police officers who conducted strip searches of children hadn't been properly trained and didn't understand the law on what they were doing, a series of landmark watchdog reports has found.

The conduct of NSW Police officers in carrying out strip searches of teenagers at music festivals has been found to be unlawful in a series of landmark reports by the NSW Law Enforcement Conduct Commission.

New South Wales Council for Civil Liberties announces that nominations are now open for two awards for excellence in civil liberties journalism for an article or series of articles, or a radio, television or podcast presentation, promoting civil liberties. The two awards are:

• for young journalists under the age of 30 on 2 June 30, 2020, and
• the open category.

Submissions are welcome, whether by self-nomination or third-party nomination. Submissions must include copies or links to the material that is the subject of the nomination. 

To be eligible, nominations must have been published or broadcast in Australia between July 1, 2019 and June 30, 2020, and must be received by the NSWCCL by 11:59pm, on 14th July 2020.

Nominations should be made online, to [email protected].

Nicholas Cowdery AO QC
President NSW Council for Civil Liberties

Read about last year's finalists and award winners HERE

The Supreme Court of Victoria has found that the Victorian Government has prima facie breached their duty to take reasonable care for the health of a person behind bars during the COVID-19 pandemic.

The case, an urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that people in prison are sitting ducks for COVID-19, and that it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.

While the Court didn’t make any findings of fact given the case was heard as an interlocutory hearing, the Court did find that there was a prima facie case that the prison authorities breached their duty of care to safeguard the health of the person in prison, and that the Government must act compatibility with the Victorian Charter of Human Rights.

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This is an excerpt from a news article originally published by the Human Rights Law Centre, 2 May 2020.

4^th May 2020

The right to protest should not be curtailed

The NSW Council for Civil Liberties has grave concerns with the actions of the Victorian Police in the arrest of Chris Breen. To our understanding Mr Breen has been charged with incitement under section 321G of the Crimes Act 1958 for involvement in a protest car convoy. We are equally concerned with the issuing of infringement notices and fines of $1652 to 26 other participants.

On Good Friday the Refugee Action Collective planned a peaceful demonstration to highlight the living conditions for the refugees being held in the Mantra Hotel, Preston, The Mantra is being used as an Alternate Place of Detention (APOD). The purpose of the demonstration was to bring attention to the difficulties of maintaining social distancing and other hygiene concerns in the facility. NSWCCL has already voiced their concerns  with the conditions in APODs.

Acknowledging the social distancing laws in place at the time, the protestors organised a car convoy with no more than two people in each car. The previous day a similar convoy had been held by the United Voice Union and although there were threats made in the media by the Victorian Police, no arrests were made, as was appropriate for a peaceful protest

On Good Friday the Victorian Police acted otherwise, by arresting Refugee Action Collective member Chris Breen in his house, holding him for nine hours at Preston police station, seizing his electronic devices (including his son’s) and charging him with incitement under section 321G of the Crimes Act 1958 for involvement in the car convoy. Police also issued infringement notices and fines of $1652 to 26 participants in the convoy.

NSWCCL has a number of concerns with the actions of the Victorian Police.

We are concerned by the use of public health measures to respond to matters of political action.

We are concerned with the precedent these actions could have for future rallies, protests or picket lines.

In order to maintain the civil right to protest in Victoria we make the following demands:

1. The charge against Chris Breen to be dropped.
2. The infringement notices be revoked.
3. The Victorian Police and Government approve future car convoys and other safe forms of political protest.

NSWCCL has also written to Victorian Police Commissioner, Graham Ashton AM regarding this matter. View the letter HERE.

Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to [email protected].

See this statement as a PDF

NSWCCL Statement to the 2020 ECOSOC High Level Segment for NGOs 26^th April 2020

The New South Wales Council for Civil Liberties (NSWCCL) recognises that the human rights and civil liberties of all people cannot be fully realised unless, and until, the global community meets the targets set by the Sustainable Development Goals (SDGs). However we recognise that development, particularly economic, need not necessarily take place in a way that is human rights based.

 In times of accelerated progress towards any goal, it is clear that states can sometimes all too quickly pursue acceleration at the expense of human rights and equality. This is not to say that acceleration is itself problematic. In line with the recommendations of the Inter-Governmental Panel on Climate Change, acceleration of sustainable development in relation to climate change (SDGS 7, 11- 15) is vital to prevent the most catastrophic climactic changes. Climate change will only entrench vulnerability and marginalisation. We strongly endorse rapid acceleration of the response to climate change, particularly within Australia.

We emphasise the importance of attaining progress towards meeting the SDG targets in a way that centres human rights obligations at the core of development. The United Nations Human Rights Council has resolved that attainment of the SDGs and implementation of human rights obligations by states should be ‘mutually reinforcing’, and a state should implement the SDGs consistently with their pre-existing human rights obligations (A/HRC/RES/37/24). This is also recognised in SDG 10 and SDG 16.

Turning to an example from Australia, the longstanding inequality between Indigenous and Non-Indigenous Australians is a deplorable stain on Australia’s history. The 2020 Closing the Gap report identifies that the child mortality rate for Indigenous Australians is slightly over double the child mortality rate for Non-Indigenous Australians (p. 15). Numeracy and literacy rates for Indigenous school students are well below national standards (p. 45). Whilst we acknowledge that some progress is being made, such progress is slow and does not comply with the spirit of the SDGs and should be accelerated alongside economic development.

To ensure that the crucial acceleration of progress responding to the SDG targets takes place in a way that advances human rights we call upon states to:

• Ensure that justice, integrity and accountability bodies within states are strengthened and properly resourced.
• Adopt domestic legislation which enshrines fundamental human rights and affords citizens with personal remedies to protect their rights.
• Ensure that the rights of marginalised and minority groups are given equal, if not greater, importance than the rights of others within society to remedy past injustices.

Michelle Falstein

Secretary

NSW Council for Civil Liberties Australia

NSWCCL are asking members and supporters to urgently write to a group of Federal Ministers warning them of the risks involved in keeping 100 refugees in the Kangaroo Point Central Hotel, an alternative place of detention (APOD) in Brisbane, and 50 in the Mantra Hotel APOD in Melbourne.  We are calling for their immediate release into safe places in the community as part of the public health response to the COVID-19 emergency.

The risk in APODs is that they are crowded, and social distancing is impossible. Moreover, guards, service staff and others go in and out, generally without personal protective equipment. 

There are 9,900 members of I Have a Room, who have declared their willingness to look after asylum seekers and refugees in their own homes.  In APODs and Detention Centres, here, in Nauru and Manus Island, there are a few more than 1,400 asylum seekers and refugees. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it.

We thank you for taking this action to help protect asylum seekers and refugees in Australian care during the COVID-19 health crisis.

- Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to [email protected].

Please write in your own words, or copy and paste the example letter below into an email, and send to:

The Hon. Alan Tudge, Acting Minister for Immigration [email protected]

The Hon. Peter Dutton, Minister for Home Affairs [email protected]

The Hon. Anne Ruston, Services Minister [email protected]

The Hon. Greg Hunt, Minister for Health [email protected]

The Hon. David Coleman, Minister for  Immigration, Citizenship, Migrant Services and Multicultural Affairs. [email protected]

Dear Ministers,

You will be aware of the concerns expressed by Mr. Ed. Santow about the COVID-19 health risk due to overcrowding inside two alternative places of detention (APODs) for refugees and asylum seekers - that is, in the Kangaroo Point Central Hotel in Brisbane and the Mantra Hotel in South Preston, Victoria.  According to Mr. Santow, social distancing is not possible while so many are detained there, and the lives of the detainees are at risk.

APODs are not isolated from the wider community--guards, service staff, cleaners and others go in and out.  They can carry infection in, and others will carry it out.  Mr. Santow's warning should be treated seriously and the response should be urgent.

I remind you of the consequences of Donald Trump's dismissal of warnings about the novel coronavirus as fear-mongering.

I am writing therefore to urge you to rescue the people detained in those two places from their almost inevitable infection with the SARS-2 virus if they stay there, and the likely deaths of some of them.   I urge you  to act swiftly and place them in community detention, or release them to safe places in the community. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it. 

There are 9,900 members of I Have a Room who have declared their willingness to take an asylum seeker or refugee each from detention into their own homes. 

I urge you to take up their offers, and act before it is too late

Yours sincerely,

(SIGN HERE)

Download the letter as a PDF to print, sign and scan/photograph and send via email.

Media coverage: 9News/AAP

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Media coverage: MamaM!a

Podcast interview: The Government needs at least 14 million Australians to download the COVID19 tracing app, and if we do, they've promised we could get some of our freedoms back. 

So how will it work? What information of yours will it have access to? What will it mean for your privacy? We find out the facts on Covidtrace. 

Guests: Nigel Phair, Director of UNSW Canberra Cyber; Michelle Falstein, Secretary of the NSW Council of Civil Liberties. 

Listen

20^th April 2020

CONCERNS RE PRIVACY AND DIGITAL COVID-19 CONTACT TRACING

Prime Minister Scott Morrison has confirmed that the Australian government is progressing with Singapore-style digital options for contact tracing. The proposed app tracks, via Bluetooth technology, the previous close contacts of an individual who subsequently proves to be COVID-19 positive.  This applies to any contact (also with the app) who had spent 15 minutes or more in close proximity with the infected person.

NSWCCL is concerned with the potential of the app to compromise data protection, increasing illegal and inappropriate use of data and facilitating surveillance and stigmatisation of Australians. Any collection or use of a person’s sensitive personal data for digital contact tracing must come with the imposition of strict limitations.

Today the High Court unanimously found the AFP warrant to enter  journalist Annika Smethurst’s home in search of information relating to the publication of classified information, was invalid on a technical ground:

“that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful”

Costs were also awarded to the plaintiffs.  

NSWCCL welcomes this limited victory for Annika Smethurst today - but we remain deeply concerned that freedom of the press and effective investigative journalism continues to be under serious threat in Australia.  This decision does nothing to alleviate those concerns.

Media coverage: Sydney Criminal Lawyers

Except for those brief moments when it has been chided during the COVID-19 crisis – think Bondi Beach – the Australian public has done extremely well in completely changing the way it goes about its everyday life, with the implementation of lockdown measures.

And in amongst the rollout of prohibitions, penalties, and stimulus packages, the Morrison government saw fit to close down federal parliament for months on end. This was sold to the public as a necessary safety measure, at the same time government was recommending schools stay open.

However, as the initial pandemic shock began to clear, the opposition, judicial officers and civil liberties advocates began to question whether the removal of parliamentary oversight at the time of an unprecedented health crisis was really the correct avenue to take.

The NSW Council for Civil Liberties was calling for the launch of the senate committee in order to maintain at least some democratic process during the crisis. And the council has been keeping its usual keen watch over developments affecting the freedoms of Australian citizens.

Sydney Criminal Lawyers spoke to NSWCCL president Nicholas Cowdery about the need to increase parliamentary scrutiny during a crisis, rather than eradicate it, as well as the issues around the gaping holes in the emergency provisions that are leading to the ambiguities in their enforcement.

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Resources for those in mandatory quarantine

As many of those who have been in mandatory quarantine are coming to the end of their periods of isolation, many in city hotels, there are others returning from overseas and entering mandatory quarantine.  NSW Health describes mandatory detention as an “inconvenience”. It is more than that. Yet, those corresponding with NSWCCL have not complained about the fact of having to be quarantined. They did not mind being inconvenienced. They had other concerns about it.

Policy about quarantine was announced without sufficient time and briefing and understanding by those who were required to provide and enforce it. It has been unnecessary for those quarantined to be the subject of arbitrary and, often, meaningless rules, seemingly made on the run, uncertain and inconsistently applied. If the government expects voluntary compliance with its policies, those policies have to be perceived as fair.

The NSW Government says that it is “determined to make the 14-day period as comfortable as possible”.[1] However, many are not being treated respectfully and with consideration and compassion. Many have no ability to have access to fresh air and daily exercise, appropriate meals and cleaning supplies. Special dietary requirements are not being met and physical and mental health needs are not being addressed appropriately. In some cases, packages are not allowed to be delivered by family and friends or arbitrary limits are placed on what they may contain. Others complain that there is no easy access to medical services or other simple requirements that have no bearing on one’s ability to be quarantined.

If you have any issues:

1. Ensure that you take advantage of the facilities that you are entitled to according to the NSW Health page on quarantine. There are a number of resources listed in that website. https://www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx

The website states that “Each hotel is being staffed with experienced doctors, nurses and mental health professionals. Every day travellers will have access to:

• registered nurses
• assistant nurses
• a general practitioner (doctor) will do a daily round of the hotel
• medical practitioners are on-call 24/7 with the same doctor for continuity.”

1. Contact your local Federal and State Members of Parliament and make them aware of your situation.
2. Contact the Attorney General, Health Minister and the Police Minister in the State or Territory in which you are quarantined.
3. Publicise your complaint to Australian media outlets.

[1] https://www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx

Media coverage: Straits Times/Sunday Times

The NSW Council for Civil Liberties has called on police to be more restrained regarding COVID-19 restrictions. "There is widespread community observance of the laws," said a spokesman for the council, Mr Stephen Blanks.

"If the police are seen to be enforcing them in a heavy-handed way, it will result in a loss of community support," he added.

Australian police have come under criticism for being too heavy-handed in enforcing social distancing rules after officers targeted mothers with babies and individuals sitting alone in parks.

Despite the rules being quickly and readily accepted by most Australians, there are concerns that the overzealous approach by some officers risk jeopardising community support for the measures.

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More than 200 not-for-profit and community organisations have backed a major report calling on the Australian Government to strengthen its commitment to human rights in its laws, policies and practices.

The report has been prepared ahead of a United Nations Human Rights Council review of Australia in a process known as the Universal Periodic Review, which each member of the UN must undergo every four years.

Edwina MacDonald, a Legal Director at the Human Rights Law Centre and one of the report coordinators, said it offers a comprehensive insight into the state of human rights in Australia, at a crucial time with the COVID-19 crisis set to exacerbate existing inequalities and create a host of new human rights challenges.

“The human rights that many Australians have taken for granted are suddenly front and centre in public consciousness – essential rights like healthcare and education are coming under enormous strain and structural economic inequalities will hit disadvantaged communities hard. This report provides a snapshot of the existing problems and is a stark reminder that Australians will not face this pandemic on equal footings,” said MacDonald.

Read/Download Australia’s Human Rights Scorecard: Australia’s 2020 UN UPR NGO Coalition Report.

Australia’s Universal Periodic Review by the UN Human Rights Council will take place early 2021. The NGO Report was coordinated by the Human Rights Law Centre, the Kingsford Legal Centre and the Caxton Legal Centre, working with an Advisory Group comprised of 16 NGOs, and authors from 57 NGOs.