Newsletter June-July 2014

Welcome to the June-July 2014 issue of the Civil Source

In this issue:

Message from the Secretary | National issues | Racial vilification legislation | Independent monitor of counter-terrorism laws abolished | Senate election reform | Telecommunications interception and access | NSW issues | Police powers - safeguard weakened | Mandatory minimum sentencing | Independence of attorney general and police ministries | Racial vilification report deferred | Police consorting law reform | Oversight of police critical incidents

Message from the Secretary

Lesley LynchThe first half of this year has been torrid on the civil liberties front and NSWCCL has been very active around a large number of issues.  A lot of our energy has been directed to opposing a flurry of disturbing policies from both the NSW and the Australian governments. 

A major focus has been the extreme amendment to the Racial Discrimination Act proposed by Senator Brandis. Hopefully, the Attorney General will have heard the vehemence of community opposition and withdraw his proposal.

 We continue to advocate a rethink of the Abbot government’s covert and unheralded abolition of the Independent National Security Legislation Monitor under the guise of removing ‘red-tape’. The monitor provides much needed independent advice on our extensive and, in parts, extreme counter-terrorism legislation and how these powers are used by ASIO and other intelligence agencies.   

The ongoing issue of government surveillance and data collection is very much on the national government’s agenda.  We have responded to a comprehensive review of the Telecommunications (Interception and Access) Act and the Government intends to bring forward significant new counter-terrorism and security proposals relating to surveillance in Australia and overseas in the next few weeks. These are likely to raise very serious civil liberties issues and we can only hope the Government will allow the Australian public adequate time to consider them before they are legislated. .

We entered new territory by engaging with the national debate on the 2013 Senate Election processes.  The Senate election process in 2013 seriously breached core democratic principles and major reform is both necessary and urgent. 

At the state level we have put forward detailed argument against ill-considered laws on mandatory minimum sentencing for alcohol or drug affected violence, argued against further extensions of police powers and the  weakening of the  requirement for police to identify themselves when exercising powers. Those with long memories will recall that one of the issues leading to the formation of NSWCCL in 1963 was the refusal of police to correctly identify themselves when raiding a private party.  It is an unwelcome surprise that this important safeguard and accountability provision is to be abandoned.

While the political environment for civil liberties at the state and national level is generally hostile, thankfully the profile and reach of NSWCCL remains strong.  We are systematically strengthening our contacts within parliaments and our views have been  positively referenced in recent parliamentary debates. Our media profile is strong. President Stephen Blanks has terrific media access and NSWCCL is exploiting its new website to publicise civil liberties issues. 

The new website has made it easier for members and supporters to link with and contribute to our activities. This has quickly generated a significant growth in people  willing to volunteer assistance. Our interns program attracts strong local and international interest and our work is increasingly invigorated by their input.

Overall the mood of the organisation is pretty positive –notwithstanding the magnitude of the current threats to civil liberties and rights in Australia.

Lesley Lynch

Visit the new website

National Issues

NSWCCL condemns Government proposals on racial vilification legislation

NSWCCL has strongly registered its opposition to the amendments to the Racial Discrimination Act 1975 (Freedom of Speech Repeal of S.18C) Bill 2014 proposed by Senator Brandis in March.  

The amendments would dramatically narrow the definition of unlawful racist speech and the contexts in which racial vilification will be allowed are so broad as to include almost every circumstance in which public racist abuse could occur. These proposals would effectively destroy vital protections against racial vilification that have worked well in Australia for 20 years.  

NSWCCL was not opposed to minor amendments to the current Act. We share the perspective of other human rights and civil liberties groups that the giving of ‘offence’ in itself should not be unlawful behaviour. However, the provocative and divisive way in which Senator Brandis conducted this debate and the overreach of his proposals destroyed the context for constructive debate about minor amendments.  

There were over 5000 submissions on the bill and it is rumoured that they are overwhelmingly in opposition. Astonishingly, the Attorney-General has refused to publish the submissions as is the norm in parliamentary inquiries. NSWCCL shares the widespread expectation that the Attorney will respect the community response and withdraw the exposure bill in its entirety.

Independent monitor of counter terrorism laws covertly abolished

NSWCCL was appalled to discover that hidden in the bundle of over 10500  regulations to be tossed into the Government’s great ‘red tape bonfire’ in March was the abolition of the role of the Independent National Security Legislation Monitor. In our view – and that of many other prominent experts in the counter-terrorism field- this was not only a covert but a foolish action.  The Independent Monitor has broad review functions relating to the intensely sensitive and complex area of counter-terrorism laws: whether these laws remain proportionate to the threat of terrorism in Australia and whether they contain appropriate safeguards to protect the rights of individuals whether the intelligence agencies are using them appropriately. NSWCCL lobbied federal politicians and, when the parliament referred it to a committee for advice, we argued strongly for the continuation of the role.

While the Government has given no indication of changing its position, there has recently been increased public opposition to the abolition of the role in the context of Government's imminent new counter-terrorism agenda. The shadow Attorney-General Mark Dreyfus has strongly  registered his opposition opposed: "I can't think of a worse time to be repealing this agency'. (SMH 24/6/14) 

We will continue our lobbying to block the repeal bill. The committee report is due in mid August.  .

Read the NSWCCL submission    

NSWCCL supports urgent reform of Senate election process

Since the 2013 elections NSWCCL has actively campaigned for reform of the Senate election process. This is a first for NSWCCL but, as core democratic and civil liberties principles were breached by the 2013 processes, we considered it imperative to engage with the issue. An essential principle of democracy is that the electoral outcome is consistent with the intentions of voters. In our view the 2013 Senate election cannot be said to have delivered on this.

NSWCCL argued its position in a submission supporting a bill put forward by Senator Xenophon in December last year and appeared before the Joint Standing Committee on Electoral Matters in February. As a follow up to questioning by the Committee, we put forward a broader supplementary submission. We argued our position from the basis of core democratic and civil liberties values. This led us to support two reforms as pivotal: optional preferential voting and abolition of group voting tickets. These interlinked reforms will remove the major distorting factors by making it easier for voters to cast a vote that reflects their preferences.  

While we supported some reforms relating to stronger party registration we were adamant that these requirements must not erect material barriers to new candidates and parties contesting an election. 

In early May the  Committee released its report on the Senate voting practices.  It is an excellent and hugely important report. NSWCCL supports its recommendations for urgently needed reform to the Senate electoral process.

Unfortunately the current political climate is not likely to be conducive to the Government wanting to take any action which might upset key cross bench members.  This might be a long public debate.

Read the NSWCCL submissions and Committee report 

Senate review of Telecommunications (Interception and Access) Act

NSWCCL made a lengthy submission to the Senate’s review of the Telecommunications (Interception and Access) Act (the TIA Act) and subsequently gave direct evidence to the Committee. We emphasized the importance of privacy as a fundamental right, central to the maintenance of democratic societies and essential for the formation of dissent and the exercise of freedom. Surveillance is a tool of tyranny.

NSW Issues

NSW police powers - safeguards further weakened

Once again NSWCCL tried to block an unnecessary and dangerous weakening of safeguards and accountability provisions around police exercise of their significant powers.

The community bestows great powers to its police force in the interests of public safety and crime prevention. It is hugely important that these powers are balanced by strong safeguards to protect our civil liberties and rights.

Post the 1990s Wood Royal Commission into the NSW Police Service and its revelations of systemic police abuse of powers, the Law Enforcement (Powers and Responsibilities) Act 2002 was enacted to consolidate and clarify police powers and also strengthen and clarify responsibilities and protections. It aimed to ‘strike a balance between the need for effective law enforcement and the protection of individual rights.’  The then Attorney-General Bob Debus was confident that the new Act achieved this balance ‘admirably’ and represented the ‘ideals of transparency, accountability and legitimacy’.  (2R speech, 17/9/02 Hansard p4846)   

Sadly, in the last decade or so NSW, driven by a law and order auction between the major parties, has seen a significant skewing of the balance back towards police powers. 

The views of the police seem highly privileged and are increasingly fast-tracked into law and policy.  Thus in 2009 NSWCCL unsuccessfully opposed the introduction of exceptional and unprecedented powers allowing police covert search warrants and in 2013 there was a disturbing extension of police powers of warrantless arrest.

Recently the NSW Government introduced more changes to the Act. Some are positive and clarify powers or improve police operational efficiency with no negatives for civil liberties. However, as usual, part of the package is less benign. NSWCCL was  concerned about several proposals, but our strongest opposition was to the weakening of the requirement that police must identify themselves, their place of work and their reason for exercising a power-such as making an arrest. Currently failure to do this renders police exercise of the power unlawful. The proposed amendment reverses this so that failure to so do will NOT render the exercise of the power unlawful!

This is a dangerous amendment as it removes a powerful incentive for police to abide by an important safeguard and accountability requirement. 

A better – and hardly difficult- remedy would be for police to comply with the law and for the safeguards of identification and explanation to remain in place!   

Numbers of speakers in the parliamentary debate referenced our views positively and in the Legislative Council both Labour and the Greens unsuccessfully supported a fall-back amendment  proposed by NSWCCL. The bill was approved without amendment on the 19th June.

Read NSWCCL comments on bill 

Mandatory minimum sentencing-bad and ineffective policy        

Since January this year NSWCCL has been engaged in a major argument with the NSW Government over its ill-conceived proposals for an extraordinary expansion of mandatory minimum sentencing (MMS) laws in response to public concern and media criticism about alcohol fuelled violence in Kings Cross. The Government initially proposed 10 alcohol/drug related offences which would have mandated minimum sentences including the new ‘one punch’ assault. The whole process was somewhat of a shambles with no consultation, bad policy and poor drafting forcing the Government to defer all but the ‘one punch’ law and rework its other provisions. NSWCCL mounted a strong campaign against the proposals but the ‘one punch’ law was unfortunately passed in January with the ALP voicing its opposition but not voting against it.

Subsequently, the Government brought forward a reworked second tranche of offences which were to attract mandatory minimum sentences. NSWCCL again registered its strong opposition on both pragmatic and principled grounds- it leads to unjust outcomes and is ineffective in reducing violence. On this occasion, the ALP opposed the package but offered the alternative of a single new offence which would attract the mandatory minimum sentence.  The Government rejected the ALP compromise. The ALP , the Greens, the Shooters opposed the Governments package in the upper house. The Government's bill lies dormant at the moment. It should remain so.  

Premier urged to restore independence to Attorney Generals and Police ministries

NSWCCL has written to the Premier urging the NSW Government to reverse its recent unwise amalgamation of the Attorney Generals and Justice portfolio with the Police and Emergency Services portfolio into a single cluster named 'Police and Justice'. For a short time the Police Minister was designated the senior coordinating minister over the Attorney-General and Justice Minister until this was reversed following the unexpected resignation of Police Minister Gallacher.

The amalgamation of these important ministries and functions central to law and order, the rule of law, our justice system and protection of freedoms is totally inappropriate - regardless of nomenclature or the relative status of ministers. In a democracy, robust debate between these portfolios on matters of policy is to be expected. These administrative arrangements are likely to have a constraining impact on such debate occurring and, more importantly, coming to public awareness.  

Neither minister nor portfolio should be subservient to the other-nor appear to be so. The Premier needs to restore separate administrative arrangements to these important ministries immediately. 

Let the Premier know your views.

NSW Government defers racial vilification report

It seems the toxic effect of the national debate on racial vilification laws has sadly spilled over into NSW. The new AG Brad Hazzard surprised and disappointed many with an unexplained deferral of the awaited NSW Government response to an important and largely positive parliamentary committee report on NSW’s racial vilification laws.  The deferral was particularly puzzling because the NSW government has expressed strong and consistent opposition to the Brandis proposal and the new Premier Baird had swiftly made it clear that he would not be moving NSW from this strong opposition.

So why this deferral of action on widely supported, modest proposals to improve the NSW legislation?  We can only assume that the strength of the community fury against the Brandis proposals and the sharp contrast between the NSW and the Australian Governments’ views on such a fundamental rights and freedoms issue has put the NSW Premier - and therefore his AG -  in a difficult position with their federal colleagues.   

NSWCCL urges Premier Baird and AG Hazzard to be brave and proceed with implementation of their report’s recommendations- on this matter it won’t do them any harm to be sharply differentiated from their federal colleagues.

Read more 

NSWCCL Annual Fundraising Dinner

Friday 26th September 2014

Ben Saul

The 2014 key note address will be given by Professor Ben Saul.

Dr Saul is Professor of International Law and Australian Research Council Future Fellow at the University of Sydney and an internationally acclaimed expert on global counter-terrorism and human rights. He is also a practising barrister, media commentator and high profile human rights advocate. 

For your diary. Gather a table of friends.
Bookings open in July

Breaking News


New counter terrorism laws

Cabinet has approved new surveillance powers for ASIO and its sibling organisation ASIS as a further enhancement of Australia’s extensive counter-terrorism regime. The Government has indicated it will implement most recommendations of the Joint Intelligence and Security Committee's report on Nicola Roxan's 2012 controversial national security proposals.

Bail review 

Following ill-informed media agitation led by the Daily Telegraph, Premier Baird has set up a review of the new bail law which has been in operation for only one month.

This is a distressing development. There is no reason for a review at this time. The bail law reforms were moderate and well ‘supported including by the Director of Public Prosecutions, Police and Legal Aid NSW. It is too soon for any meaningful data to inform the review. 

At the broader level this is another depressing manifestation of the destructive law and order auction syndrome that bedevils state politics. 
Read more 

Get Involved

NSWCCL in the Media

Privacy Taking Flight? (30/6/14, Channel 7 News)

The call to name and shame pedophiles (23/6/14, A Current Affair)

Social networking to be made available to inmates (22/6/14, SMH)

King's Cross venues to save Patron's IDs (13/6/14, ABC Radio)

Privacy concerns over Kings Cross scanners (Australian, 11/6/14)

Mike Baird's response to hate speech inquiry delayed (5/6/14, SMH)

'Great debate' right to privacy (25/5/14, Channel 9)

Australia asked Americans for more help to spy on Australian citizens (14/5/14, Guardian)

Ombudsman to review migration lawyer blacklist
(3/5/14, SMH)

Are you being watched? NSWCCL's Stephen Blanks interviewed regarding govt. surveillance (19/4/14 2SER Radio)

Privacy in a digital age

Stephen Blanks

The NSW Law Society brought together a fascinating panel of experts - NSWCCL's President Stephen Blanks, the Inspector General of Intelligence and Security, Dr Vivienne Thom,  privacy lawyer Gordon Hughes and Professor Ben Saul - to discuss  privacy in the digital era.

The conversation ranged across the general impact of  social media on privacy including  the fast emerging issue of the ‘the right to be forgotten’ as well as the tensions between the need for surveillance by security agencies  and individual privacy and whether, post Snowden, Australians could be confident  our intelligence agencies are not engaging in unlawful surveillance and data gathering.

It was a welcome and rare opportunity to engage in public discussion with the IGIS and Stephen’s comments on the ‘right to be forgotten’ generated significant media follow up. (Photo courtesy of NSW Law Society)

Asylum Seekers Amnesty Forum


In May NSWCCL’s committee member Jo Murphy joined the panel for a forum addressing  Australia’s current policies on asylum seekers, the international implications and alternatives.

Jo spoke about the impact on the rights and lives of the 40,000 odd asylum seekers currently living in the Australian community.  Most (about 33000) have not had their claims processed, barely survive without work rights, and are denied access to migration advice. The remaining 7,000 arrived before the government stopped processing claims, have been found to be refugees and are owed Australia’s protection, but are suffering because of the policy changes which will deny them a permanent visa.

Cameron's honorary life membership party

Cameron Murphy was presented with his NSWCCL Honorary Life Membership certificate at a large gathering of friends and colleagues at the Harold Park Hotel in April. The award oration was given by long time civil libertarian and friend of Cameron - Dr Meredith Burgmann.  Cameron has continued to collect awards. He was made a member of the order of Australia in October and is currently campaigning as the  ALP candidate for the state seat of East Hills.


Can you help?

NSWCCL is looking for a volunteer able with design skills to help us produce a terrific and professional online newsletter.

Can you help? Contact the Secretary

Oversight of police critical incidents

The NSW Government in 2013 commissioned an important review of the oversight of critical incidents in which police are involved.

NSWCCL considers it imperative to move  from the current situation where police reviewing themselves to a independent process. We strongly argued this case in a meeting with the former Commonwealth Attorney-General Robert McClelland who was appointed by the NSW Government to conduct the review.

NSWCCL was greatly disappointed with the report, Oversight of Police Critical Incidents, which was released in January. The report not only rejected the calls for reform of the current investigative process, which involves police investigating police, but made recommendations which have the potential to undermine the two regulatory bodies set up following the Wood Royal Commission to protect the public: the Police Integrity Commission and the NSW Ombudsman.

Effective independent oversight of police critical incidents is a imperative for the protection of the public and for community trust in the police force. Sadly the McLelland report has not helped resolve this issue. 

Read more 

NSWCCL argues for radical reform of consorting laws

NSWCCL made a strong and detailed submission to the NSW Ombudsman's review of the use by police of consorting provisions in NSW law. The current NSW consorting laws impinge on human rights to a degree that far exceeds any benefit that may be obtained from them. Our position is that should be repealed and/or radically amended.

Submission no longer available.

Get Involved

NSW Council for Civil Liberties