PUBLIC STATEMENT

The NSWCCL has written to the NSW Attorney General Mark Speakman SC to acknowledge the strong leadership shown by taking swift and decisive action to amend the Crimes (Administration of Sentences) Act 1999 to create a power for early release to conditional parole in some circumstances. If this power is exercised to substantially reduce the number of people held in detention in NSW, this will be a significant step towards slowing the spread of COVID-19 and saving lives.

March 24, 2020

MEDIA RELEASE

The NSW government has now passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020. The NSW Council for Civil Liberties (NSWCCL) appreciates the government’s rapid response in introducing emergency public health measures, at this time. The government has a broad range of public health and emergency response powers available under current legislation, for responding to public health emergencies. Although some elements of individual liberty and equity may be overridden to protect the wider community, when exercising those powers, the government must remain vigilant to avoid the grave human rights violations likely to affect the most vulnerable in our society. Those vulnerable include those who are unable, because of disability; poverty; their migrant status; or incarceration, to access emergency economic or health services. If unprecedented numbers of job losses ensue, as predicted, then the number of vulnerable in our society will swell.

It is for these reasons that the NSWCCL wishes to highlight a number of disturbing aspects of and omissions from the Bill:

1. Pre-recorded evidence in criminal trials does not give the opportunity for the defence to cross-examine the prosecution witness which is an essential component of criminal justice process. While acceptable, in some limited specific special circumstances, this provides for a much broader range of witnesses, if the class of persons is revised by regulation.
2. Evidence given from a remote location, by video link, would provide the same protections, in terms of disease, but would have the benefit of allowing cross-examination. If it is considered that this cannot be achieved, due to a lack of resources, that is not a sufficient reason, where the integrity of the justice system in achieving fair trials is at risk.
3. The possibility of a 12 month, or longer period, for the emergency measures to be determined by the Attorney-General, is not satisfactory.  There should a be a firm sunset date, so that parliamentary approval is required, for any extension.
4. The Bill invokes powers, in s747B of the Local Government Act, that allow legislation to be amended or repealed without going back to Parliament for consideration. Although emergency situations may be a valid exception to the principle, the NSWCCL generally opposes these as they produce less scrutiny and Parliamentary control over legislation. This is not considered a necessary measure in these circumstances.
5. The Bill should include strong whistleblower protection for health workers. In a health crisis of this kind, it is more important, than ever, to ensure that the public can have access to accurate information, in a timely way. Health workers are obviously in a position where they will often be first to know, and they should be protected from persecution, and prosecution, if they genuinely see a need for public disclosure of information.

Finally, NSWCCL has released a statement specifically addressing COVID-19 and prisons which can be accessed at the following link https://www.nswccl.org.au/statement_covid_19_and_prisons. 

ENDS

PDF version

NSWCCL contact: [email protected] or Michelle Falstein 0412 980 540

About NSW Council for Civil Liberties

NSWCCL is one of Australia’s leading human rights and civil liberties organisations, founded in 1963. We are a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression. We also listen to individual complaints and, through volunteer efforts; attempt to help members of the public with civil liberties problems. We prepare submissions to government, conduct court cases defending infringements of civil liberties, engage regularly in public debates, produce publications, and conduct many other activities.

Media coverage: 9 News

Staff at a detention centre in NSW are ignoring fears cramped conditions will aid the spread of coronavirus, detainees and advocates say. 

The NSW Council for Civil Liberties says overcrowded detention centres are ripe for the spread of infectious diseases.

Read more

March 24, 2020

PUBLIC STATEMENT

Reducing the risk of COVID-19: reducing the number of people in custody 

The risk of transmission of COVID-19 in correctional centres and youth detention centres demands urgent action to reduce the number of people in those centres.

Overcrowding of gaols is a well-known condition which renders the prison population more vulnerable to the spread of infectious diseases. Many people in custody present with pre-existing and chronic health conditions which may increase the risk to their health if infected with COVID-19. 

We are deeply concerned that failing to significantly reduce prison numbers will lead to a rapid spread of the infection which would unacceptably compromise the health and safety of inmates, young people and the families and communities to whom they are released. This is particularly concerning for Aboriginal and Torres Strait Islander people who are overrepresented in the criminal justice system and who suffer poorer health outcomes. We are also concerned for the health and safety of corrections and justice health staff, lawyers, cleaners other gaol workers and the families and communities they go home to.

The risk of infection will inevitably be exacerbated by the significant delays in finalising cases which will result from important measures being put in place by the courts to limit face-to-face contact of court users, such as the suspension of jury trials. On 23 March 2020 a restriction was placed on new criminal cases commencing in the NSW District Court (other than sentences and appeals) and directed that trials currently listed be vacated and be re-listed after October 2020 (with the exception of Judge alone trials and current trials). The Supreme Court announced that from Tuesday, 24 March 2020 ‘there shall be no personal appearances in any matters save in exceptional circumstances’ 

Reducing prison numbers can be done by:

• Urgently considering legislation to enable early release of prisoners who are not considered high risk or who are soon to be released as has been done in some other countries
• Amending the Bail Act and the Crimes (Sentencing Procedure) Act to require courts (and police in relation to bail) to take into account the potential impact of COVID-19 upon the accused and the community.
• Police and the courts taking into account the impact of COVID-19 upon the accused in the context of the current bail framework, including the accused’s potential risk of exposure, the length of time in custody (including the impact of the delays), the vulnerability of the person and the likelihood of a custodial penalty (which may more appropriately be a community based option if the person is vulnerable to infection by virtue of their incarceration or the person has a vulnerability which increases the risk to their health).

We urge that courts refrain from imposing sentences of full-time custody unless assurances are provided by corrective services that:

• the offender will not be forced to share cells or spaces which are inconsistent with the government guidelines in relation to distancing; and
• that offenders will not be exposed to persons who corrective services are aware may be infected or at risk of carrying the virus.

Transparency and Accountability 

The information currently available on NSW Corrective Services and NSW Justice Health websites is inadequate. Inmates, young people in detention, their families, the public, the legal profession and the courts are entitled to know essential information and policies including:

• In what circumstances are inmates and young people being tested for COVID-19?
• In what circumstances are staff being tested for COVID-19?
• What arrangements are being made in relation to vulnerable members of the prison population: the elderly, those with pre-existing conditions, Aboriginal and Torres Strait Islander people?
• What are the arrangements for isolating any inmates who test positive for COVID-19, including the length of time they are to be isolated and in what conditions?
• How are accused persons who are arriving from overseas (such as those who may have been arrested for importing drugs) being isolated?
• the impact on inmates who share a wing, pod or gaol with an inmate who tests positive for COVID-19 and what arrangements or changes will occur to the conditions of their incarceration?
• the number of beds at Long Bay hospital that are available for treating any inmate or young person testing positive who requires hospital care;
• what alternative arrangements would be available if Long Bay hospital reached capacity?
• the arrangements, if any, for any inmates who are released in relation to testing and, if positive, whether inmates are provided transport and transmission to appropriate health services?
• the availability or cancellation of rehabilitation programs as a result of the risk posed by COVID-19.

We urge NSW Corrective Services and NSW Justice Health to publish this information on their websites to ensure accuracy. 

As at 22 March 2020, NSW Corrective Services’ website indicated that “We have no confirmed cases of the virus within any of our correctional centres”. On 20 March 2020, The Sydney Morning Herald reported “two staff members at a high-security mental health facility in Sydney's south have been diagnosed with COVID-19 and dozens of staff and patients have been placed into isolation”. We urge NSW Corrective Services and NSW Justice Health to publish accurate information on their websites. It is understood that the forensic hospital is under the jurisdiction of NSW Justice Health, however, sections 55 and 56 of the Mental Health (Forensic Provisions) Act provide for transfer of persons between the hospital and correctional centres. For this reason, we urge disclosure on the NSW Corrective Services website. It should also be made clear whether there has been any potential transmission by Justice Health staff spending time in either the hospital or a correctional centre or whether any forensic patients have been transferred to correctional centres within the relevant time period. 

Unprecedented times require the courage to make decisions which are consistent with evidence and the wellbeing of the whole community. We call on the government to urgently reduce the number of people incarcerated to lessen public health risks. We call on NSW Corrective Services and NSW Justice Health to provide clear and detailed information to the public.   

Nicholas Cowdery AO QC

President, NSW Council for Civil Liberties

Rebecca McMahon & Eugene Schofield-Georgeson

Convenors, Criminal Justice Action Group

NSWCCL recently joined other organisations and individuals in reaffirming our support for Julian Assange in the context of his fight against extradition to the USA. We spoke at the Assange rally in Sydney in February and subsequently sent a public letter to the Prime Minister urging the Australian Government to take effective action to support Assange in his fight against extradition and assist his return to Australia.

Assange’s situation is desperate and dangerous. His mental and physical health have been seriously compromised. He is imprisoned in a London gaol with limited capacity to communicate with his legal team. If he is extradited to the USA, he will face charges which will expose him to a likely outcome of life imprisonment in a high security gaol.

The relentless pursuit of Julian Assange over the last decade has been politically motivated, cruel and unjustifiable.  In our view he has not engaged in criminal activity. Assange and wikileaks published truthful information about shocking and wrongful activities - including war crimes - which had been kept secret. 

Australia’s recent bushfire season of unprecedented scale, foreseen years ago by climate scientists as a likely result of a warming planet, lays bare the urgent need for climate justice. With this context in mind, NSWCCL wishes to affirm its support for the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”), to be introduced to Parliament by the independent MP for Warringah Zali Steggall.

Modelled on similar legislation passed by several developed nations, including the UK, Germany and France, the Bill attempts to provide policy certainty, transparency and accountability in relation to emissions reduction targets and climate adaptation. Amongst other innovations, the Bill:

• creates an independent Climate Change Commission (CCC) to help prepare emissions reduction plans and budgets, report on progress, conduct climate change risk assessments, and advise the government in relation to climate adaptation;
• sets a statutory emissions reduction target of zero net emissions by 2050 which cannot be varied without the consent of the CCC;
• institutes five-yearly whole-of-economy emissions budgets; and
• establishes a number of guiding principles which administrative decision-makers, as well as the CCC itself, must consider.

11 March 2020

PUBLIC STATEMENT

NSW Council for Civil Liberties considers the Minister for Police and Community Services, David Elliott, should stand down while a NSW police investigation into whether he has committed a criminal offence is ongoing.

Ministers have a responsibility to maintain the public trust that has been placed in them by performing their duties with honesty and integrity, in compliance with the rule of law.

It is untenable for the Minister for Police, with responsibility for the conduct of the NSW Police Force, to maintain public confidence in the NSW Police Force while he himself is under investigation for a serious offence, in this case an offence which carries a maximum penalty of 14 years imprisonment.

While Mr Elliott is entitled to the presumption of innocence and says that he acted in good faith and fired a semi-automatic weapon and pistol "under the strict supervision of the range master",  that does not properly address the question of whether the public can have confidence in the integrity of the police investigation while Mr Elliott remains Minister for Police.

NSWCCL contact: Stephen Blanks, Treasurer - [email protected]

Dr Lesley Lynch, co-convenor of the NSWCCL Civil and Human Rights Action Group spoke briefly on behalf of NSWCCL at the Assange rally on Monday 24^th February 2020. The event was held in solidarity with global events in support of Julian Assange on the first day of his extradition hearing at Belmarsh Prison, London. 

Speech Notes:  Assange Rally Martin Place, Sydney

The NSWCCL across its 57 years has always fought to protect whistle-blowers and a free and independent press as fundamentals to democracy.

NSWCCL has long supported Assange: initially as a facilitator providing transformational protection  for whistle-blowers -  and then as a publisher/journalist (and a prize winning one at that)  in his own right.

Media coverage: Information Age, Australian Computer Society

Home Affairs minister Peter Dutton has once again invoked the spectre of paedophiles and terrorists in calling for an expansion of the Australian Signals Directorate (ASD)’s powers that would allow the foreign-focused agency to conduct domestic investigations for the first time.

A long-simmering policy change, the ABC reports, would allow the Australian Federal Police (AFP) to enlist the services of the ASD – the government’s overseas surveillance and signals-intelligence unit, which “operates in the slim area between the difficult and the impossible”, as its Web site puts it – to investigate certain matters within Australia’s borders.

Privacy advocates such as the Law Council of Australia and NSW Council for Civil Liberties, labelled metadata laws “indiscriminate and excessive” warned about the “cumulative chilling and intimidatory impact of the Government’s expanded surveillance powers and secrecy offences”.

Read more

Media coverage: Sydney Morning Herald

One in 10 children at a Sydney under-age music festival faced random drug testing that has been labelled by legal experts "potentially unlawful" and an infringement on civil liberties.

Despite the rain, NSWCCL Committee member, Lydia Shelly (pictured) spoke at Sydney's No Right to Discriminate: Religious Discrimination Bill protest rally this month. Lydia spoke to the CCL position on the bill, how religious groups have been co-opted, and the implications of the proposed bill.

CCL supports the need for a law against religious discrimination, but this Bill subverts key principles as to the ‘indivisibility and equality’ of human rights. It grossly over-privileges religious rights to the detriment of other rights. It seriously weakens existing anti-discrimination laws. It will cause harm to many groups and generate dissension and ill-will in our community.

It is CCL's view that the Government must withdraw this Bill and start again with a better and more cohesive process. More detail on CCL position HERE.

*Lydia Shelly is a lawyer and student in terrorism and security studies, and  a Committee Member, NSW Council for Civil Liberties.

 Here we share the speech Lydia gave at the rally.

NSW Council for Civil Liberties vice president Dr Eugene Schofield-Georgeson on the weekend expressed concern the inquiry was effectively being "scrapped" by the government because it "stands to be embarrassed by the commission's findings".

Media coverage: The Saturday Paper

In New South Wales, police now have quotas to search people and move on others. They call these “proactive strategies”. This financial year, they will conduct 237,089 searches. Some will be strip-searches. Some will be conducted against minors. Few will turn up results.

Police set these targets. They hoped for 241,632 searches last financial year, but fell short by a couple of thousand. There is no evidence the targets reduce crime. If anything, they distract police and malign the community.

On Thursday, Nicholas Cowdery, QC, told The Sydney Morning Herald that the quotas created a “great potential for abuse of power”. The state’s former director of public prosecutions said the “natural human response will be to seek to meet the target by proper or improper means – by fudging, by exercising power where it is not properly warranted”.

Most potently, he said the targets were “a political exercise on the part of the police and, consequently, on the part of the government”.

Read more

Media coverage: Sydney Morning Herald

NSW Police aimed to conduct almost a quarter of a million personal searches last financial year as part of a quota-driven system slammed as a politically motivated "numbers game" by the state's ex-top prosecutor.

Figures revealed under freedom-of-information laws show individual police area commands are set targets for the execution of powers such as searches and move-on orders, as well as addressing an array of crimes, with people in some areas targeted for searches at nearly 13 times the average rate.

Former director of public prosecutions Nicholas Cowdery, QC, who is now the president of the NSW Council of Civil Liberties, said the use of targets meant there was "great potential for abuse of power."

"If a target is set by superior officers, especially a target that will be relevant to performance assessment, natural human response will be to seek to meet the target by proper or improper means - by fudging, by exercising power where it is not properly warranted," he said.

Read more

In 2018, CCL endorsed the recommendations of the Final Report of the National Constitutional Convention, held at Uluru in 2017. CCL resolved to call on the Australian Government/Parliament to respect and act on the recommendations of the Report and to progress the Uluru Statement From The Heart recommendation for a constitutionally enshrined First Nations a Voice to the Commonwealth Parliament. The Convention also called for the establishment of a ‘Makaratta Commission’ to oversee the process of truthtelling and agreement making, referencing the notion, 'nothing about us, without us'. 

CCL also supports extra-constitutional recognition of the unique role played by First Nations communities in Australia. This would be a clear assertion of self-determination, with the potential to profoundly benefit First Nations Peoples.

In late 2019 we founded our First Nations Justice Action Group to plan and guide our work in this space.

CCL joins advocates and community leaders to talk First Nations Justice

Recently, CCL was invited to join a meeting at Australia Hall with advocates and First Nations community leaders to talk about paths forward for recognition of truth, for self-determination, and First Nations justice. Present were representatives from Reconciliation NSW, Change the Record, Australians for Native Title and Reconciliation (ANTaR), Metropolitan Local Aboriginal Land Council, Aboriginal Catholic Ministry and the Jewish Board of Deputies. Also attending were community members who are passionate about progress on justice for Aboriginal and Torres Strait Islander people. 

NSWCCL condemns the premature closure of the inquiry into potentially illegal strip searches conducted on minors by police in NSW. The Guardian has revealed that the Law Enforcement Conduct Commission (LECC) confirmed it will no longer hold further hearings as part of the inquiry, which last year uncovered evidence of the widespread misuse of strip search powers by police in NSW.  

The LECC had been due to hold more public hearings in either late January or February into the psychological impacts of strip searching on minors, but in a brief statement a spokeswoman for the LECC said it now had “no intention to call further evidence at this stage”.

The decision to cut the inquiry short comes just a month after the NSW government announced it would not renew the term of its chief commissioner, Michael Adams QC, which prompted accusations his removal was a “cynical” attempt to cut the inquiry short.

NSWCCL has made a submission on the Government's second exposure draft of the Religious Discrimination Bill 2019. This follows our highly critical, but nonetheless, slightly hopeful submission on the first exposure draft of the Bill in October last year. We had been hopeful that the many problems civil liberties and human rights groups had identified in the Bill might be addressed, so that this second version would provide much needed protections against religious discrimination -particularly for minority religions - which are appropriately balanced with the rights of other groups in the Australian community. 

The draft Bill's up-front objectives are spot-on: to eliminate discrimination on the grounds of religious belief; to ensure everyone has the same rights to equality before the law and that people can make statements of religious belief- all subject to reasonable restrictions. Most significantly they affirm the 'indivisibility and universality of human rights and their equal status in international law.' (Clause 3) 

However the new draft  Bill fails to deliver on these objectives - it dangerously expands the over-privileging of religious rights in relation to other rights, weakens existing protections available for other groups under current state and federal anti-discrimination laws.  If it becomes law, this Bill will increase  discrimination against and harm for many groups in the Australian community. 

It seems clear that the objects of the draft Bill have been distorted by the insertion of numerous provisions for the sole reason of conceding to the demands of major religious groups for both exceptionally broad rights and protections from discrimination by others and an extraordinary range of exemptions and exceptions amounting to an extensive right to discriminate against others with legal impunity.

In summary, NSWCCL considers this second exposure draft Bill privileges religious rights to the detriment of other rights and weakens existing anti-discrimination laws much more seriously than did the first exposure draft. We are firmly of the belief that the Government must withdraw the Bill and start again with a better and more cohesive process. 

 NSWCCL submission on the second exposure draft RDB

Media Coverage: The Guardian

- Article by NSWCCL Committee Member, Lydia Shelly, lawyer and student in terrorism and security studies.

'‘For Muslims, this bill is a Trojan horse. It will enshrine prejudice and discrimination into law."

This article brings to light the very real challenges that the Religious Discrimination Bill 2019 raises for people of minority faiths and the LGBTQI community.

Freedom of speech and protest are fundamental to a democratic political process. NSWCCL affirms support for urgent action, at the federal and state levels, to combat the severe, climate change threat.

On January 31st, we joined climate defenders at the Downing Centre before they headed into court. They were arrested in December at Kirribilli House while protesting in favour of climate action. Those arrested included Greens MP David Shoebridge. He was charged with disobeying a police direction to move on.

NSWCCL Secretary Michelle Falstein spoke to those gathered saying that citizens of this state should not fear the police when exercising their constitutional rights and that, change in the policy of intimidation by the NSW police force, is clearly required.

David Shoebridge told the crowd, "Most of us will be pleading not guilty today because we refuse to bow to police and government pressure - they cannot police their way out of the climate crisis". 

We will keep you updated as to the date fixed for hearing of the charges.

NSWCCL President Nick Cowdery AO QC appeared on ABC The Drum on 28th January 2020, speaking from his expertise as previous Director of Public Prosecutions. 

Adam Spencer joined Dr Ngiare Brown, Nicholas Cowdery and Erin Watson-Lynn to discuss the impact of coronavirus plus an ABC investigation revealed a pattern of failure by police to take action on sexual assault complaints.

Are police failing some survivors of sexual assault? New data reveals a significant lack of action on assault claims lodged.

"I’ve been told it took years for your researchers to get these figures, and it was very difficult, and in the Northern Territory they wouldn’t even play ball."

On the broader effects of #coronavirus in Australia:

"We must be very careful not to treat this as an ethnic issue. The virus doesn’t discriminate against different ethnicities and neither should we."