The NSW Council for Civil Liberties wrote to the Crossbench Senators urging them to vote against the reintroduced Migration Amendment (Strengthening the Character Test) Bill.
If passed, this bill will further expand the grounds on which a person’s visa may be cancelled under section 501, especially on character grounds. This would include where a non-citizen has been convicted of a crime punishable by over two years’ imprisonment, regardless of when the person was actually sentenced to a term of imprisonment. This bill is a disproportionate response to visa holders who have committed minor crimes.
- This bill will subject people who are of no danger to society to the rigours of indefinite detention, or to being deported. Families will be split. There is no evidence that “the community” would want such outcomes.
- The bill would allow the Minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence, or no sentence at all.
- The bill presupposes that careful decisions of the courts, made after proper process, input by experts and the experienced judgement of judges, are inferior to decisions made by the Minister with the aid of his Department. Sentences, after all, take account both of the seriousness of the crime and of the desirability of deterrence—both of the individual and of others. That is, they take into account the dangers to the community.
- The bill contains no exceptions for children.
- The bill ignores the processes of rehabilitation.
- A determination that a person fails the character test, depending on how it is made, means either that their visa must be, or may be, cancelled or refused. There right to merits review is available only in some cases. (The courts can only deal with errors of law.)
More information: read our letter to the Crossbench senators
And the winners were:
- Excellence in civil liberties journalism - open:
- Excellence in civil liberties journalism - young journalist:
- The Kafka award for the most egregious public statements or acts offensive to civil liberties and human rights:
Clubs NSW for demanding via their lawyers that an ex-employee whistleblower facing financial ruin over court costs stop crowd funding to finance his court case and return donations already received - or face further court action.
This is a transcript of a presentation given by President Pauline Wright at a Centre for Public Integrity webinar.
There are a number of civil liberty and rule of law concerns raised by the prosecutions of Witness K and Bernard Collaery including:
- Freedom of speech in the public interest
- Open justice
- Abuse of the notion of ‘national security’
- The rule of law – everyone is equal before the law and no-one is above the law
- Independence of the legal profession
The 58th Annual General Meeting of the New South Wales Council for Civil Liberties (NSWCCL) will be held electronically, in accordance with Article 29(1) of the Constitution and as approved by the Committee, at 6pm on Wednesday 27th October 2021.Read more
Writing for Mondaq, Paul Gregoire notes one positive outcome of the pandemic is that it's brought human rights and civil liberties to the fore.
"For some in the community, the fact that rights protections in this country are fairly weak might come as a surprise. For others – such as First Nations peoples, refugees and asylum seekers – this was well understood long before COVID-19 ever disembarked at an Australian airport."
"Civil liberties advocates have been warning of a general erosion of rights that's been occurring due to the passing of numerous national security bills over the past two decades, with the last such piece of legislation – the Identify and Disrupt Bill – being passed during the extended NSW lockdown."
The article notes NSWCCL's clear support for those who do not wish to get a vaccine, balanced by its recognition that a requirement to demonstrate vaccine status to, for example, cross a border is not unreasonable in the circumstances.
- Read the full article: COVID-19 restrictions and the Civil Liberties - Human Rights quagmire Mondaq 6 Oct '21
- Vaccine passports NSWCCL 5 Aug '21
Our President Pauline Wright was a guest on today's Hack for an interesting discussion about vaccine passports: how will they work? What about our privacy and rights?
It goes without saying that it's unacceptable for police officers to wear symbols associated with white supremacy on their standard issue Police uniforms.
However, over the past couple of years, our members have observed, consistent with increasingly frequent media reports, NSW Police Officers displaying symbols and icons associated with white supremacy.
Today we wrote to the Police Commissioner and Minister asking them to explain:
1) What policies and processes are in place to respond to members of the NSW Police Force who are found to be displaying symbols and icons associated with white supremacy?
2) What steps are being taken to ensure that NSW Police Force members do not hold white supremacist ideologies, participate in white supremacist groups or display their symbols or icons?
More information: read our letter
(The photos sent with our letter showed identifying details of the officers in question - you can see cropped versions on the right of this page).
We're looking at doing more work around displays of white supremacy and NSW Police as a result of recent complaints, so please get in touch if you have examples or stories that you could share: [email protected]
Political columnist Michael Moore examines planned legislation to ensure definitions of cabinet includes the national cabinet, and therefore keep its deliberations secret.
"While a small number of protestors are using the streets and violence to make a point about their right to freedom from vaccination, much more important civil liberties are being eroded. Should this legislation be successful, the reasons behind decisions taken in the “national cabinet” will remain secret for 30 years."
He quotes CCL:
“This cannot be seen as anything other than a blatant and cynical attempt to avoid transparency by including within the definition of cabinet something that cannot properly be called a cabinet at all.” (Read our full piece The 'National Cabinet' should not be above scrutiny)
Read the full article: More secrets being hidden in national cabinet
Eric Meijer reports that Australia's spreading pilot programs to let travelers quarantine in the privacy of their own homes are drawing criticism from some quarters for invading that privacy.
"Across Asia and elsewhere, countries have deployed various technologies to help fight COVID-19, from contact tracing apps to QR-code check-ins for entering establishments. But some see Australian authorities' use of facial recognition and geolocation to enforce home quarantines as a step down a slippery slope, even as efforts to reopen borders come as a relief."
The article quotes NSWCCL's Secretary Michelle Falstein:
"We would be concerned greatly at how facial recognition information is shared amongst other government departments, how it's stored, how easily it's hacked, a number of issues about how the information is dealt with and how it's also used for other purposes. So those sorts of things are really not covered off under legislation in this country at the moment."
Read the full article: Australia border relief brings unease over 'Orwellian' quarantines
Chip Le Grand asks whether in our singular determination to protect life from the spread of a virus, we were at risk of losing something just as precious.
This opinion piece for The Age quotes our Victorian sister organisation"
"Liberty Victoria president Julia Kretzenbacher says the pandemic has exposed the weakness of Australia’s human rights protections and the toothless nature of Victoria’s 15-year-old human rights charter, which doesn’t enable individuals to sue for damages when their human rights are unlawfully breached."
"Kretzenbacher says a central problem with the Victorian government’s public health response is the lack of transparency surrounding its decisions and their compatibility with human rights. She says it is difficult to draw a line between public health orders which are reasonable and those which are not because of the lack of information made publicly available about them."
It also notes that "The NSW Council of Civil Liberties has also warned about the overreach and disproportionality of stay-at-home orders imposed on some of Sydney’s most ethnically diverse suburbs".
Read the full article: Freedom, interrupted: Will the liberties we lost to COVID be regained?
A diverse group of community organisations has come together once again to continue efforts to stop One Nation from harming our education system and the wellbeing of our children.
In our joint media release, we condemn the inquiry into the Bill, which was run by Mark Latham himself in an abuse of democratic process.
We are fighting One Nation's Education Legislation Amendment (Parental Rights) Bill 2020 because it is:
discriminatory and cruel.
incompatible with existing laws and protections.
injurious to fundamental human rights, including freedom of expression.
harmful to teachers, students and education in NSW.
unnecessary and, in some areas, incoherent.
- Today's media release
- Latham Inquiry makes a mockery of the committee process - NSWCCL 8 Sept '21
- NSWCCL joins public statement opposing NSW One Nation Education Bill - NSWCCL 18 Aug '20
Channel 10 considers the road map out of lockdown, looking at planned restrictions on unvaccinated people.
Our President Pauline Wright called for rapid testing: “If [people] can prove that they are covid free they should be able to go about their normal business just as you or I can”.
She also commented that, while restrictions on the unvaccinated are legal for now, “when they cease to be proportionate, if they outlast the crisis and outlast the threat, then that might not be the case any more.”
More: view the Channel 10 coverage. The content we linked to is no longer available
According to an ABC report, people who have tested positive for COVID are being forced to stay inside their homes for weeks longer than the typical 14-day isolation period because of delays in paperwork, according to a member of a NSW public health call centre in a Sydney hotspot.
We wrote to Health Minister Brad Hazzard about this and our concerns about vaccine passports.
More information: Read our letter to the Health Minister
UPDATE 1 October: The Secretary of NSWCCL met with representatives of the Department of Customer Services yesterday (31 Oct 21) and received assurances about some of the matters raised in our letter.
Significantly the vaccination certificate as part of the Service NSW check in tool (QR code) is just one option to use as entry to hospitality venues and events. For example, vaccinated residents of NSW will be able to show the vaccination certificate on their phone and use paper alternatives. It is envisaged that the venue will only register a tick without any sensitive health information being imparted.
Medical exemptions will be catered for and children under 16 will not require any evidence for entry to venues otherwise accessible by them.
Other assurances were given in regard to certain privacy safeguards including non-retention or collection of data which will only be held on the personal device and the temporary nature of the scheme. Push of data from the Australian Immunisation Register remains of concern, however detailed information about the scheme will be available next week for greater scrutiny ahead of its introduction.
At the National Cabinet meeting on 17 September 2021 all states and territories agreed to include people's COVID-19 vaccination status in their check-in apps, meaning the apps will act as vaccine passports.
Urgent action is required in response to the news of the worsening outbreak of COVID cases in prisons and the tragic death of a NSW youth corrections officer.
We understand from media reports on 17 September 2021, that more than 40 NSW corrections staff were Covid-positive (not including staff at the privately-run Parklea prison, where the outbreak began) as well as more than 300 inmates across the prison system also testing positive, including 84 First Nations people.
The risk we flagged in August, of Covid spreading rapidly in prisons, is becoming more likely by the day and it is crucial that all necessary measures be taken immediately to mitigate the risk of this happening.Read more
We are increasingly concerned with the policing practice of the NSWPF as it responds to the pandemic. Watching the escalation of violence in Victoria, we are also concerned with the possible possession and use of pepper pellets and hard squash-ball like missiles.
Disproportionate police response
In a series of recent media clips members of the NSWPF have approached and/or arrested several young men visibly of racial and/or ethnic minority backgrounds. In these incidents, the NSWPF have alleged the young men have not been wearing face masks. Police intervention of this nature directly undermines the common law principle that arrest is indeed a sanction of last resort.
Possession and use of pepper pellets etc
Prompted by recent events in Victoria, the NSWCCL is alarmed about the possible possession and use by the NSWPF of pepper pellets and hard squash-ball like missiles in the community.
NSWCCL wrote to Commissioner Fuller to urge him to ensure that NSW Police use the powers granted to them under the Public Health Act 2010 in a manner that respects human rights. We also asked whether equipment similar to that seen deployed in Victoria is being held in reserve in NSW and in what circumstances we are likely to see it used.
CCL has been concerned about the treatment in Immigration Detention Centres, and particularly in Villawood, of detainees who are put into quarantine for fourteen days when they return from medical or dental appointments outside of the centres.
Now The Saturday Paper reports that a detainee who was identified as a contact of a guard at Villawood who contracted COVID-19 has similarly been put into isolation in a room with no view outside and minimal furniture. Even worse, this time the light has been left on all night. This, as he complains, is a recognised form of torture.Read more
Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support
Update 20 October 2021: see also our joint media release prompted by the news of a decision to increase the commercial take.
Members of the Aboriginal community who have a right to fish under the Native Title Act 1993 are being prosecuted under the Fisheries Management Act 1994 (NSW) (FMA) contrary to those rights. Mounting a native title defence is both time consuming and expensive, meaning that a number of Aboriginal men have been incarcerated as they have been unable to defend themselves.
A legislative amendment that would resolve this situation was passed 11 years ago, but hasn't yet commenced. NSWCCL has written to the NSW Minister for Agriculture to urge him to immediately rectify this situation - rights that require a costly legal defence to enjoy are not worth the paper on which they're written.Read more
Four academics writing in The Conversation criticised Mark Latham's report into his own bill saying that the "inquiry ignores scientific research in supporting changes to the Education Act. These changes are likely to add to the risks of harm that transgender and gender-diverse young people face".
The piece quoted our Tweet stream calling out the inquiry and commending the minority report rather than the majority.
Full article: NSW inquiry rejects expert advice on Parental Rights Bill, and it will cause students to suffer The Conversation 14 Sept '21
Public Health Orders to manage the COVID-19 pandemic are being made and amended on the fly.
Given the speed at which they are drafted, the constant amendment and possibly the lack of care taken in their drafting, they have proven to be incredibly confusing.
They are almost impossible to understand - new evidence of the confusion that the Orders are causing emerges every day. Is sitting on a park bench or a beach eating something considered outdoor recreation? Is light walking a good enough reason to take one's mask off?
NSWCCL asks: how can the rule of law prevail where its subjects cannot ascertain the relevant law?
Lack of oversight
These Orders have a significant impact on our individual rights and liberties, effectively introduce serious offences, and are controlling the lives of millions of NSW residents - they should be subject to intense parliamentary scrutiny.
However, that isn't happening. The Orders are made by the Health Minister under section 7 of the Public Health Act 2010 and are effective immediately, with no review required. The checks and balances that usually apply to legislation are not in place.
The Regulation Committee
Since 2017, NSW's Regulation Committee has had a power to review "any instruments of a legislative nature regardless of its form, including the policy or substantive content of the instrument". Since last year, it has had the power to self refer.
NSWCCL has written to the Committee urging it to take on the scrutiny and review of the Orders, whether that is through the establishment of an inquiry, public or private communications with government or otherwise.
More information: Read our letter to the Regulation Committee