NSWCCL News

NSWCCL on the application of COVID fines by NSW Police

Media coverage: 9News/AAP

Some NSW police are handing out fines arbitrarily to people confused about COVID-19 restrictions, with "already over-policed" marginalised groups being penalised unfairly, a lawyer says.

Under COVID-19 measures, police officers have the power to fine individuals $1000 and businesses $5000 breaching public health orders or ministerial directions.

As of April 20, state police had issued 95 court notices and 736 penalty infringement notices, with on-the-spot fines, since March 17.

And while some of these cases are for people legitimately refusing to comply with social-distancing measures, solicitor Peter O'Brien says people are confused about what they are allowed to do and are being penalised unfairly.

"The lack of real clarity from the political masters who put in place this legislation is leading to an arbitrary application in the streets. People are genuinely and sincerely not certain of what a reasonable excuse is," Mr O'Brien told AAP.

"I'm concerned it's being applied to people who are already over-policed, the mentally ill, those fairly marginalised in society, most of whom can't afford to pay those penalties," he said.

NSW Council for Civil Liberties president Stephen Blanks questions why some of these fines are in areas of NSW where no known COVID-19 infections exist.

"The ultimate purpose of these regulations is for protection of community health," Mr Blanks told AAP.

"There was a couple in Cobar who were fined for being outside their home. The police should take into account if the activity engaged by the couple did put the community at risk. I'm not sure there are currently any infections in Cobar."

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Privacy and trust: The COVID-19 tracking app

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. 

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Privacy and digital COVID-19 contact tracing

20th 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.

Despite assurances that the proposed app is opt-in and therefore voluntary, NSWCCL has grave concerns over the safety and privacy of information gathered, stored and shared, along with the potential for abuse of that information. Widespread uptake of any contact tracing app and effective contact tracing will be dependent on whether the Australian people trust the government to take their privacy concerns seriously. It is possible that, as with the My Health Record, the app is transitioned to opt-out, or worse, becomes mandatory because of insufficient uptake. Equally concerning is the possibility that individuals could be excluded by their workplaces or schools if not using the app.

The Minister has said If an individual registers COVID-19 positive status, that information is sent to a national health storage and then sent to State governments to notify the individual’s contacts. Cyber-attacks and accidental and illegal data breaches have and will continue to occur on Australian government databases. It is therefore desirable that mobile device contact tracing be decentralised, with contacts registered in encrypted form on the local mobile device, and not identifiable to others or the government. Such measures reduce the fallout should a data breach occur.

In convincing the community that restrictions can be eased with faster contact tracing, the government should be reminded that privacy and health are not tradeoffs, one for the other. Both are possible with well-designed technology.

NSWCCL recommends that the Australian government consider the use of alternative more privacy friendly digital contact tracing options which are currently under development. These options are rapidly becoming available. The Apple/Google collaboration is opt-in contact tracing which generates transitory arbitrary IDs processed locally on the device and not uploaded onto a central server. Bluetooth anonymous identifier beacons notify persons who have been in contact with a COVID-19 subject.  MIT and the EU are developing similar apps. The EU DP-PPT model uses a backend server to push information through to notify the contact of a risk of infection and has purpose-limiting dismantling of the app at the end of the emergency.

NSWCCL recommends that the Australian government, at least, adopts the following privacy protections in the implementation of the proposed digital COVID-19 app:

  • Consideration of reasonable digital alternatives to the proposed model of digital contact tracing
  • Transparency and accountability, providing information about the development and use of any mobile device tracking technology and how rights of the individual will be affected and protected,
  • The technology must be opt-in after the provision of accurate and complete information about the extent of its use, with the requirement to renew consent periodically,
  • The ability to opt out or terminate participation at any time, accompanied by built-in destruction of personal data,
  • The use of best practice privacy and security measures, including:
  • short, clear and accurate privacy policy;
  • strict and express data retention and destruction policy, linked to a short period of application;
  • limits on the type of data collected and how it can be accessed;
  • anonymisation of data;
  • strict limits on data sharing, in particular no sharing of information between government agencies except for public health purposes,
  • Decentralisation of anonymised data on users’ mobile devices,
  • Strict limitation in relation to the purpose and objects, for which users have expressly consented. Personal data should not be retained for any new purpose,
  • A clear, short period of application – (the sunset period for Israel’s contact tracing app is 30 days)
  • An easily accessible complaints system and independent judicial oversight, to address any grievances,
  • No ability to subpoena data through court proceedings, and
  • An independent oversight role for the Office of the Australian Information Commissioner (or other government office) and the new Senate COVID Committee, with regular public reporting of data collected by the technology.

Beyond these specific recommendations it has been longstanding NSWCCL policy that the Australian Government should legislate for a Bill of Rights and a statutory cause of action for serious invasion of privacy.

 

Nicholas Cowdery AO QC

President NSW Council for Civil Liberties  

------------------

Contacts

Michelle Falstein Secretary NSWCCL: Michelle.falstein@nswccl.org.au

Dr Lesley Lynch: Lesley.lynch@nswccl.org.au

 

 

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High Court decision - limited win for journalist Annika Smethurst

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.

The unprecedented raids on both Smethurst and the ABC offices occurred in the context of widespread community concern about the proliferation of draconian secrecy laws and the impact of these laws on the free press and investigative journalism in Australia - especially in relation to reporting on national security matters. 

The motive for the raids was clearly to warn off journalists and whistle-blowers.   The publications posed no threat to national security and the revelation of the information was in the public interest.

The High Court finding that the warrant lacked ‘sufficient precision’ identifies an apparent lack of competence in the AFP’s drafting, but has no wider implications for any protections for investigative journalism or freedom of the press in Australia.

The AFP -with the agreement of the Minister – is still able to press charges against Annika Smethurst.

Divided HC views on return of the unlawfully seized information

Surprisingly - even though the “entry, search and seizure” were declared unlawful – a majority of the High Court Justices refused the plaintiff’s application for the return of the information copied from the journalist’s mobile phone onto a USB stick. 

This was a particularly disappointing majority (4-3) decision.

A key agenda for the raids was the identification of the journalist’s sources which this information is likely to enable.

Whistle-blowers underpin much investigative journalism. If journalists are no longer able to guarantee their informant’s anonymity, investigative journalism and an effective free press will be greatly weakened.

The minority views of the three dissenting Justices (Gageler, Gordon and Edelman) on this issue provide a more positive perspective.

Justice Gordon was of the view that:

165 The law would take a seriously wrong turn if this Court held that it could not grant an injunction to restore a plaintiff, so far as possible, to the position they would have been in had power not been exceeded without the plaintiff demonstrating that, in addition to the excess of power, a private right is also breached by retaining what was seized. To require demonstration of some further or additional private law wrong as the only basis on which injunction may go treats the excess of power as irrelevant and ignores the constitutional purpose of s 75(v) of the Constitution.

Justice Gageler took a similar position:

117…I do not share their Honours' doubts as to the existence of a juridical basis for the final mandatory injunction which Ms Smethurst seeks, requiring the AFP to deliver up the USB drive on which the copied data is stored to enable that data to be deleted. And I disagree with their Honours' view that such an injunction should be refused in the exercise of discretion.

122 For so long as the information remains in the hands of the AFP, the direct effects of the infringement of her rights to possession of her home and of her mobile phone are serious and ongoing. There being no suggestion that the value of the information embedded in the data to her is wholly commercial, money alone cannot restore her to the position she would have been in had the trespasses not been committed. 

All three Justices ordered the return of the USB drive to Annika so the data could be deleted. Gordon and Edelman also required the AFP to delete any copies. Gageler was silent on this but flagged the obvious fact that nothing stopped the AFP from seeking a new and valid warrant for the information.

Legal and constitutional implications

The one application by the plaintiffs which may have had significant legal and constitutional implications was that:

the warrant was invalid on the ground that s 79(3) of the Crimes Act, as it stood on 29 April 2018, infringed the implied freedom of political communication.

This matter was not addressed by the High Court as it was not necessary given their decision that the warrant was invalid on technical reasons.

Therefore the huge issue relating to the encroachment of draconian secrecy laws on the freedom of the media in Australia will have to wait the outcomes of the pending report of the Parliamentary Joint Committee on Intelligence and Security on this broad issue.

This now very overdue PJCIS report will be very significant and carries a weight of expectation that it is not likely to be able to meet given the constraints of its terms of reference.  

In our view, the only effective remedy for the current immense constraint on the media’s capacity to deliver quality investigative journalism and to provide the reporting the community needs to hold governments accountable is a major rollback of Australia’s excessive secrecy laws and a strong human rights charter which includes an effective right of the media to freedom of expression.

NSWCCL Public statement 

Smethurst v Commissioner of Police 

 

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Closures of Parliament Unwarranted: An Interview With NSWCCL President

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 COVID-19 quarantine

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.
  4. Report your complaint to websites, such as https://covidpolicing.org.au/.

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

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COVID-19 restrictions, NSWCCL calls for police to be restrained

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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United Nations Universal Periodic Review: Australian NGO Report 2020

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. 

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Senate establishes Committee to scrutinise responses to COVID -19 crisis

The NSW Council for Civil Liberties welcomes the unanimous decision by the Senate to establish a Select Committee on COVID -19 matters.

The Committee has a wide scope. It is empowered “to inquire into and report on:

  1. a) the Australian Government's response to the COVID-19 pandemic; and
  2. b) any related matters.”

It has strong powers to gain information, hold public or private hearings,  publish evidence, findings and recommendations and a direction that it be “provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President”.

It will have a core membership of 7 being: 3 nominated by the Leader of the Opposition in the Senate; 2 nominated by the Leader of the Government in the Senate; 1 nominated by the Leader of the Australian Greens; and Senator Jacqui Lambie. Other Senators will be able to be nominated as participating – but not voting - members.

On the face of it, this new Select Committee should be able to make a significant contribution to democracy in oversighting the Government’s responses to the COVID -19 pandemic.  In so doing it will hopefully provide some much-needed scrutiny of Government decisions and their implementation to fill an astonishing accountability vacuum created by the closure of the Australian Parliament until 11 August 2020.

The Government’s continued refusal to amend the Parliament’s sitting schedule to provide for sittings over the intervening months is a betrayal of the people’s rights to transparency and accountability in government.

 

NSWCCL public statement


Previous statement: 6 April 2020, Call for senate committee scrutiny of government responses to COVID-19

Previous statement: 30 March 2020, Statement: COVID-19 and Government oversight - Prolonged Parliamentary Adjournment unacceptable and Dangerous for Democracy

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NSWCCL calls for Chief Medical Officer to be consulted on COVID-19 laws

Media coverage: The Canberra Times

The NSW Council of Civil Liberties has called for the state's chief medical officer to be consulted about fines issued under extraordinary laws designed to prevent the spread of COVID-19.

It follows concern that police may be issuing infringement notices to people who do not pose a risk of spreading the virus.

NSWCCL spokesman Stephen Blanks disputed whether going for a drive should be classified as an offence. "That activity has negligible community risk, of course there could be a risk if there was an accident, but it's very remote," he said.

"The experience of the past week suggests the commissioner should be getting some guidance from the chief medical officer of NSW as to whether particular activities involve community health risk."

Mr Blanks warned maintaining community support for the laws would be essential in the weeks and months ahead.

"It's unprecedented, the idea that everyone is confined to their homes unless they have a reasonable excuse to leave. The fact is there is widespread community observance of the laws, but the most important thing is the community support for them is maintained," he said.

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

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