A major coordinated campaign to decriminalise abortion in NSW was launched today by a new advocacy coalition - the NSW Pro-Choice Alliance. 

The NSW Council for Civil Liberties is a foundation member of this new broad-based Alliance and will continue our half century of advocacy for abortion law reform through active participation in the Alliance campaign.

The formation of this Alliance around a renewed campaign to achieve the long overdue decriminalisation of abortion in NSW is an exciting and significant development.

There is reason to hope this alliance of over 60 organisations will be able to persuade members of the NSW Parliament across political divisions to remove the current archaic and cruel law criminalising abortion and allow the women of NSW the right to make their own decisions about their reproductive health.

After all, this is a right which is available to women in every other state and is supported by a clear majority of the community in NSW.

Pro-Choice goals 

The NSW Pro-­Choice Alliance represents expert legal, health and community voices across NSW. We are campaigning to remove abortion from the NSW Crimes Act and to ensure that abortion is regulated like any other health procedure.

 We recommend the repeal of sections 82­-84 of the NSW Crimes Act 1900 and the implementation of legislation similar to Queensland’s Termination of Pregnancy Act 2018 and Victoria’s Abortion Law Reform Act 2008. 

We seek changes so that the law will:

• Regulate abortion as a health procedure
• Ensure consistency with contemporary clinical practice, and public health standards
• Empower women with the right to choose what happens to their own bodies, and guarantee equal access to safe, high quality healthcare, and
• Align with international human rights obligations

Next steps

The Alliance will be discussing the proposed reforms with the Government, Opposition and other members of Parliament as well as seeking further community support.

NSWCCL urges CCL members and supporters to contact their local members and members of the Legislative Council and discuss the urgent need for decriminalisation of abortion in NSW.  

PCA media statement 2/5/19

List of supporting organisations

29 April 2019

The New South Wales Council for Civil Liberties (CCL) has welcomed a pledge by the Australian Labor Party to invest $107 million to address the disproportionate incarceration rates of Aboriginal and Torres Strait Islander peoples.

The announcement by Labor’s shadow Indigenous Affairs spokesperson Pat Dodson and shadow Attorney General Mark Dreyfus includes $44 million in Aboriginal and Torres Strait Islander legal Services, $21.5 million for family violence prevention legal services, $21.75 million for justice reinvestment programs in NSW, Western Australia, Queensland, and the Northern Territory. Labor has also committed to adopting justice targets as part of the Closing the Gap framework.

A controversial Local Court judgment in Western Australia in relation to indecent assault has been upheld by the Western Australia Supreme Court. The judgment turned on an agreed set of facts. After a charity wheelchair basketball event, members of the police team prepared to take a group photo. One of the men in the photo said something like “don’t take this the wrong way”, and as the photo was about to be taken, pinched a woman on the side of her right buttock. The woman accepted that this action was intended to be “in some way humorous" and was done "in order to provoke a startled reaction”.

It was agreed that there was an unlawful assault, however the prosecution needed to also show the assault was indecent. Indecent assault carries up to 5 years imprisonment, and a fine of $24,000. For an assault to be indecent, it must have a sexual connotation, and offend against prevailing contemporary community standards of decency and propriety. The Magistrate made a series of findings, concluding that touching a person’s bottom was not necessarily or inherently indecent and the pinch in this case was an example of unlawful but not indecent touching.

On Thursday 11 April 2019, Wikileaks founder and editor-in-chief Julian Assange was arrested by British police after the Ecuadorian embassy withdrew Assange’s asylum. Assange is currently facing two charges – one concerns failing to surrender to the British courts in 2012. The other charge is at the behest of the United States government, which is seeking to extradite him in relation to an alleged conspiracy between Assange and Chelsea Manning over the leaking of secret documents in 2010.

NSW Council for Civil Liberties President, Pauline Wright, said “No matter what our personal views of Julian Assange may be, there are important matters of principle at stake that go beyond the personalities involved. We must condemn the decision of the United States to seek the extradition and prosecution of a non-citizen who published truthful information about US war crimes. This has clear implications for the protection of whistle-blowers into the future and the independence of the press.” She said “What is to stop more authoritarian regimes claiming a similar right to prosecute Australians in the future, including journalists exposing war crimes or corruption? The Australian government should urge the United Kingdom to block Assange’s extradition to the United States.”

High Court protects women’s safe access to abortion clinics

Today the High Court of Australia made a decision which maintains greatly needed legal protections for women seeking reproductive health care - including abortion- in Tasmania and Victoria.  NSWCCL welcomes this unanimous upholding of the current laws in these states.  

The provisions, which provide these protections within a 150-metre safe access zone, had been challenged by anti - abortion campaigners who argued they infringed their right to free speech and political protest.

In rejecting this line of argument, the High Court found that any impediment to free speech or political protest caused by its prohibition within this limited 150 metre zone was ‘negligible’.

This accords with the position NSWCCL took in supporting the passage of the NSW Safe Access to Reproductive Health Clinics legislation in 2018. We took this position as an organisation which has defended civil liberties for over 50 years and approaches any law which limits free speech or political freedom with great caution.  We considered the NSW legislation to be necessary and reasonable. 

The High Court decision today provides a very welcome level of certainty as to the constitutionality of the NSW safe access zone provisions.

The decision not only provides clarity as to the constitutionality of existing provisions it also provides a context which should facilitate the extension of these much-needed legal protections to women in Western Australia and South Australia.

We extend our thanks to the Human Rights Law Centre and the Melbourne Fertility Control Clinic for their submissions to the High Court in defence of the safe access zones.

In NSW we must now turn our attention to the achievement of abortion law reform in this term of government. 

NSWCCL Public Statement on HC decision 

Detailed analysis of HC judgement

5 April 2019

NSW Council for Civil Liberties (CCL) condemns political interference in the ABC, in the wake of a Senate Report finding political interference in the ABC by the government.

On 1 April, on the eve of the Federal Budget, the Senate Standing Committee on Environment and Communications published its report on “The allegations of political interference in the Australian Broadcasting Corporation (ABC)”. The committee found that “political interference or the prospect of political interference, and all that that entails, is experienced to varying degrees throughout the ABC.” It also found that “the Coalition Government has been complicit in the events of 2018 and beyond, by using funding as a lever to exert political influence in the ABC.”

4 April 2019

NSW Council for Civil Liberties (CCL) has urged the Iranian authorities to release Nasrin Sotoudeh, a human rights lawyer.

Originally arrested in June last year, Sotoudeh has been sentenced to 38 years imprisonment and 148 lashes. The allegations against her include “assembly and collusion against national security,” “propaganda against the state,” membership in various human rights groups, “disturbing public peace and order” and “publishing falsehoods with the intent to disturb public opinion.” Amnesty International has adopted her as a prisoner of conscience.

George Williams

My talk relates to a long-standing problem:

how to protect the community from terrorism, while at the same time respecting fundamental human rights, such as freedom of speech and the right to a fair trial

3 April 2019

CQX18 is the boat identification of an Iranian man, who applied for a visa in March 2018. This request was rejected, and that decision was reaffirmed in April. He appealed that decision in the Federal Circuit Court in July 2018. Judge Street heard the Iranian man’s appeal that day. Judge Street ruled against him, and ordered him to pay the Minister’s costs of $7328. Judge Street delivered his ruling orally. This presented a significant challenge to the Iranian man. He was not in the courtroom, but connected by video link from Yongah Hill Immigration Detention Centre.

1 April 2019

After upholding an application by the NSW Police Commissioner to prohibit a Stop Adani protest scheduled to take place in Newtown in February, the NSW Supreme Court rejected an application by the Police Commissioner that the organizer of the protest pay his legal costs for going to Court. 

The Stop Adani protest was intended to proceed along King St, Newtown on 17 February, the same day as Fair Day organized by Mardi Gras in nearby Victoria Park.  The Court considered that the level of disruption which would be caused by closing King St for the duration of the Stop Adani protest on the same day as Fair Day justified the making of a prohibition order.

26 March 2019

The High Court of Australia has refused to hear an appeal from the NSW Attorney-General in relation to trying the man suspected of murdering three Aboriginal children in Bowraville. The saga of the Bowraville murders has lasted for almost 30 years, beginning with the deaths of the children over a period of five months from 1990 to 1991. The disappearances were originally treated with minimal concern by the police, who suggested the children had gone “walkabout”. The police failure to gather evidence in the crucial early period doomed the attempt to gain justice for the children. In 1994, a man was tried for the murder of one of the children, Clinton Speedy-Duroux. He was acquitted.

According to Professor Larissa Behrendt, the police began to rebuild their credibility with the local Aboriginal community by appointing detective inspector Gary Jubelin to investigate the case. He gathered new evidence to try the same suspect, and presented it before a coronial inquest in 2004. It was regarded as compelling, and this led to a new trial of the suspect, this time for the murder of one of the other children, Evelyn Greenup. Once again, the man was acquitted. The prosecution argued for admitting the new evidence in relation to the deaths of the other children, but this submission was rejected.

21 March 2019

On 13 March, the High Court of Australia handed down what is widely considered one of the most significant cases on native title since the famous Mabo 2. The case considered the rights of the Ngaliwurru and Nungalli peoples to compensation in relation to their traditional lands in the Northern Territory.

The basic principle of native title is that where Aboriginal people can show that they have traditionally used land in a particular way, they have acquired a kind of right to that land to continue their usage. That right is called native title. Native title can be extinguished in various ways. An example of extinguishment is what happened in Timber Creek. Between 1980 and 1996, the Northern Territory government engaged in 53 acts, such as granting tenure to land, and constructing public works. These extinguishing acts occurred over 127 hectares, to which Aboriginal people up to that point had exercised their native title.

As the NSW state election approaches on March 23, and the federal election approaches in May, abortion law reform is finally on the political agenda. Most significantly, the Deputy Leader of the Opposition Tanya Plibersek announced the ALP’s National Sexual and Reproductive Health Strategy. Part of this Strategy will include tying federal health funding of public hospitals to their provision of abortion services. The effect of this will be to place significant pressure on states like NSW, where abortion is currently illegal, to provide abortion services in public hospitals. Labor has said it intends to “work closely with the states” to progress decriminalising abortion across Australia.

Queensland decriminalised abortion in October 2018. NSW is currently the only state or territory in Australia where abortion is a criminal offence. There are restrictions on when abortion is legal in other states and territories, including varying conditions on gaining the approval of doctors.

On Wednesday 27 February, at about 4 pm, the Queensland State Parliament passed its Human Rights Bill into law, by a series of vote 49 to 43. There are now three individual human rights acts in Australia: one in Queensland, one in Victoria, and one in the Australian Capital Territory.

The three acts operate in broadly similar ways. They require courts and tribunals to interpret legislation in a way consistent with human rights, except where doing so would be inconsistent with the purpose or plain meaning of the legislation. If the Supreme Court is asked to find whether a particular law or statute is incompatible with human rights, declaring that there is an incompatibility does not result in the law being struck down. The declaration simply means that the relevant Minister or Attorney General has to table a written response to this declaration in parliament. These declarations have been further defanged in Queensland and Victoria, whose human rights acts provide for their parliaments issuing override declarations. Where these are made, the human rights acts have no bearing in relation to the relevant provisions or legislation.

The New South Wales Council for Civil Liberties (CCL) has condemned the NSW Premier Gladys Berejiklian’s plan to give police powers to search people’s homes and cars without warrants.

The new powers, as reported in the Daily Telegraph, would allow police to seek court authorisation to permit searches for prohibited drugs and drug paraphernalia in a person’s home or car during a two year period. These powers would operate on a pilot basis across four police commands, including Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western police districts. They are intended to target drug offenders.

NSW CCL President Pauline Wright said “The Courts act as a check on the possible abuse of the enormous powers that we give to the police. If there is a reasonable basis for a search, the courts will grant the warrant. If the police can’t show a reasonable basis for a warrant, then it shouldn’t be granted. These new powers are not needed, and offer an unacceptable prospect of being abused.”

The NSW Council for Civil Liberties condemns the appalling act of terrorism that was inflicted last Friday upon people peacefully at prayer in Christchurch.

On Friday night, President of the Council, Pauline Wright, said “Our thoughts are with the people of Christchurch in all their diversity. NSW Council for Civil Liberties supports the rights of people of faith to observe their religions, no matter whether in a synagogue, temple, church or mosque. It is a dark day for our sisters and brothers across the Tasman and our hearts go out to them.”

In December last year, Wentworth MP Kerryn Phelps advanced a bill to provide for emergency medical evacuations for people on Manus or Nauru. After negotiations with the crossbench, she agreed on amendments with independent MP Tim Storer and the Greens. These amendments were passed by the Senate with Labor’s support.

The bill provided that if two doctors agreed a person needed medical attention, they should be brought to Australia.  The Minister can refuse to do so for security reasons related to ASIO assessment. If the Minister believes that the person does not need medical evacuation, an Independent Health Advice Panel would evaluate the question. The Minister could not overrule their conclusions on medical grounds: the Minister could only refuse medical evacuation if the person was judged prejudicial to Australia’s security. The Bill also provided for 24 hour limits on each step of the process, in recognition of the medical emergency involved.

Labor and the cross-bench found sufficient common ground to achieve a significant victory for decency and humanitarian values in the Australian Parliament yesterday. The medical evacuation amendment was further amended and then passed in the House of Representatives by a vote of 75-74. It was also an historic victory in that it is the first time in 75 years that a Government has lost a substantive vote in the lower house.  

This was achieved in the face of an extraordinary and increasingly desperate onslaught by the Government.

The saga is however ongoing. The Bill must return to the Senate today. It’s passage there is not guaranteed. The Government may repeat its December tactics and filibuster to block its consideration. Derryn Hinch is reported as ‘considering his position’ on the amendments. His vote is crucial.  

It will be another tense day for supporters of the amendment.

The positives so far

Under extreme pressure the cross bench and Labor were sufficiently sure-footed to negotiate a workable amendment.

The agreed amendment remains strong enough to achieve speedy medical evacuation for those requiring urgent medical care which cannot be provided in Manus or Nauru – albeit with several caveats.

The amendment addresses the central scare-mongering Government claim- a renewed wave of asylum seeker boats – by restricting the provisions to persons on Manus and Nauru at the commencement of the legislation.

Tony Smith brought some dignity and propriety to the house and enhanced his status as a fair and non-partisan speaker by refusing what reads like an instruction from the Attorney General Christian Porter to block discussion of the amendment on constitutional grounds and by making this ‘instruction’-  and the underpinning advice from the solicitor general -  public despite a specific request from the AG to keep it private.

Some caveats

Minister Dutton retains greater discretionary power to exercise his veto on medical transfers than initially proposed in the cross-bench amendment which leaves open the possibility of misuse/abuse of the provisions.

The restriction of the provisions to only those detained at the commencement of the legislation leaves an obvious future problem if we continue with off- shore processing of asylum seekers.

We are also left with an ethical/moral issue in relation to those who will be excluded from the new provisions because they are deemed a threat to national security and have committed serious crimes. Do we think it is acceptable to allow them to die or suffer from serious illness?

Desperate government tactics

The Government ran an all-out attack on the amendment (in fact on any amendment to the existing legislation) and on Labor yesterday. There was little or no mention of the cross-benchers who were the initiators of the amendment. Though we are all familiar with disregard for truth or logic in parliamentary debates, the Government pushed the boundaries on such behaviour yesterday. Their tactics seemed to be driven both by increasing desperation about losing the vote and ‘smart’ forward thinking about effective election tactics.

As the commentators say, we are getting a preview of the pivotal role border protection will have in the forthcoming election- if the Government has its way.

The surprise of the day was the revelation by the speaker at the end of question time that he was in receipt of a letter from the AG - including advice from the solicitor general that there was an argument that the underlying amendment passed in December 2018 was unconstitutional and that the AG considered that on these grounds the speaker should not allow the amendment to be considered at this stage. And that he should keep the advice private.  

The speaker’s calm rejection of both these requests was a high point in the parliamentary day.

The extreme scare-mongering rhetoric of the Government’s attack on the Labor Party for supporting any version of the medical evacuation bill is a disgraceful performance which will further damage the standing of the Australian Parliament.

Facts have been brushed aside in favour of absurd, illogical and totally fabricated threats to public safety allegedly posed by refugees. Wild and unfounded allegations about refugee murderers, rapists, pedophiles and bad characters abound, as do supposed threats to national security from the wave of refugee boats that temporary medical evacuations of seriously ill refugees will allegedly generate.

What a disappointment that Bill Shorten and Labor have again been spooked by a blatantly dishonest and scaremongering attack from the Government and are now seeking to water down the Bill they voted for in the Senate in December- when they know the Government’s arguments are ridiculous and dishonest.

Again they have failed to engage with and refute an absurd and extreme Government attack  which, given its patent dishonesty, should not have been beyond their capacity. And do they never learn the futility of succumbing in this way? Caving in and agreeing to weaken the Bill will not make any difference to the Government’s ongoing attack - they will just amend the line of attack as they have already this morning.

Last minute negotiations continue between Labor and the cross bench including the Greens. Hopefully a position can be agreed which will gain the support of all without significantly weakening the Bill - which would be the case if Labor's initial amendments were incorporated.

If this Bill is defeated today and the constructive cross bench initiative comes to nothing, Labor may have future cause to regret their lack of fortitude.

Australians will be deeply disappointed if this Bill fails or is seriously weakened today.

The New South Wales Council for Civil Liberties (CCL) has signed an open letter urging Members of Parliament to support the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. This Bill includes amendments advanced by MP Kerryn Phelps to provide for medical evacuations from Manus and Nauru.

CCL President Pauline Wright said “In the last five years, we have seen 12 deaths on Manus and Nauru. There are human beings who have died because Australian officials have refused to permit urgently needed medical transfers until it was too late. Medical treatment should be a medical question, not a political one. Doctors should be able to determine how to treat their patients, and what kind of care is needed.”