The NSW Council for Civil Liberties (NSWCCL) congratulates the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (the Special Rapporteur) on his appointment and thanks him for the opportunity to make a submission on his mandate priorities for 2024-26, and in particular on which of the 'new issues' identified by him should be a priority.

The Sentencing Council released a consultation paper in September 2023 seeking further submissions on key issues identified in preliminary research and analysis.  The NSW Council for Civil Liberties (NSWCCL) was grateful for the opportunity to make a submission in response to this consultation paper.

Our submission focussed on offences involving custody of knives and questions raised in relation to items 5 and 6 of the Terms of Reference, namely:

• consider whether offences for which penalty notices are available remain appropriate;
• consider whether the maximum penalties for the offences are appropriate with reference to other jurisdictions.

The NSW Council for Civil Liberties has made a submission to the Duty of Care Bill (Climate Change Amendment - Duty of Care and Intergenerational Climate Equity Bill 2023) inquiry.

Australia’s climate change framework currently leaves the Commonwealth unable to properly manage the development of emissions intensive activities. We need decision makers to be compelled to consider the health and wellbeing of current and future children when determining what is acceptable.

We are making our submissions on this Bill on the same day as the “School Students 4 Climate Strike” and are proud to endorse and support the voices of young people on this issue. The Council supports this Bill, and we urge the Commonwealth Government to support it as well.

The NSW Council for Civil Liberties has lodged a submission to the NSW Ombudsman with respect to the review of the Mandatory Disease testing Act 2021.

The Mandatory Disease Testing Act came into force in July 2022 and provides for mandatory testing of a person whose bodily fluid comes into contact with a health, emergency or public sector worker.

The making of a “mandatory order” compels a person to provide a blood sample, under the threat of prosecution for a failure to comply. If convicted, it carries a maximum penalty of twelve months imprisonment and/or a maximum fine of $10, 000.

NSW Council for Civil Liberties strongly opposes the Counter-Terrorism and Other Legislation Amendment Bill 2023 and we consider the Bill to be a serious threat to civil liberties and the rule of law in Australia. We are deeply concerned that the Bill seeks to extend the operation of two highly problematic regimes: the secrecy provisions and the control orders. Both of which have been widely criticised for undermining fundamental rights and principles of justice.

Having regard to the serious implications the Bill has to the rule of law and to the principle of democracy, we submit that the Bill is unjustified, disproportionate, and should be rejected in its entirety. We are not persuaded by the arguments put forward by the government to justify the continuation or extension of these regimes. These arguments fail to show that the Bill is necessary, proportionate or effective in addressing the threat of terrorism.

19 December 2023 Update: The Review of the Modern Slavery Act 2018 Report was published on 19 December 2023 and acknowledged the significant extent and impact of modern slavery in NSW. The committee was particularly concerned to learn that an estimated 80 to 98 per cent of victim-survivors remain unidentified out of a possible 16,400 cases each year in New South Wales.

The Modern Slavery Act 2018 is therefore an important piece of legislation enacted to address the issue of modern slavery by requiring NSW Government agencies, local councils and state-owned corporations to report on how they are addressing modern slavery risks in their supply chains, and providing for the establishment of the NSW Anti-slavery Commissioner, the first such position in any Australian jurisdiction. The Act also creates modern slavery offences.

This review examined whether the Act is adequately addressing modern slavery risks and whether the Commissioner is effectively equipped to do so. The committee acknowledged that there is clear evidence highlighting areas where the Act can be strengthened, particularly in relation to the detection and exposure of modern slavery, compliance and enforcement, support for victim-survivors and the role of the Commissioner. This aligns with the evidence from NSWCCL in both our submission and our evidence to the committee. 

Finding 1 
That the committee needs to involve people with lived experience expertise in its review of the Act before making further recommendations, noting that this has not been possible given the requirement to complete the report within 24 months of the commencement of the Act.

Recommendation 1 
That the Modern Slavery Committee continue to review the Modern Slavery Act 2018 in the next six months specifically seeking evidence from people with lived experience expertise and considering the evidence already received.
Recommendation 2 
That the NSW Government seek to amend the Modern Slavery Act 2018 to explicitly provide for the Anti-slavery Commissioner's annual and other reports to be tabled out of session or made publicly available immediately after being furnished to the Presiding Officers, as provided for in the original Modern Slavery Bill 2018.

The report can be found here. Our submission can be found here.

The Global Slavery Index 2023 estimated there are 41,000 victims of modern slavery in Australia. In financial year ended 30 June 2022, authorities received 294 modern slavery reports in Australia, which was an increase of 31% from the prior year. It is also reported that an estimated 16.400 people in NSW are victims of modern slavery.

Even with these numbers being 'low' in comparison to other jurisdictions, it is estimated only 1 in 5 victims are detected in Australia. Roughly 1670 modern slavery cases have been referred to the Australian Federal Police but only 31 offenders convicted.

The NSW Council for Civil Liberties (NSWCCL) welcomes the long-overdue review of the NSW Anti-Discrimination Act 1977. In its nearly 50-year history, this legislation has had only one review, the recommendations of which were not fully implemented.

In our submission, the NSWCCL provides tangible recommendations that would ensure the Act is modernised to make it simpler and more efficient but also to ensure it reflects changing community attitudes.

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Department of Infrastructure, Transport, Regional Development, Communication and the Arts (the Department) in regard to the exposure draft of the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 (the Draft Bill).

The NSWCCL acknowledges the harms caused by misinformation and disinformation, particularly as they relate to: the erosion of trust in democratic processes; the weakening of trust generally between and among public and private entities; and, the undermining of an informed populace.

However, the NSWCCL is concerned that the Draft Bill does not sufficiently consider freedoms of expression and assembly, nor take into account the potential for misinformation to be spread by means and entities that are outside the Draft Bill's scope.

In our submission we highlight that the proliferation of Artificial Intelligence, AI, could pose significant risks to the civil rights of the Australian public. As it stands, Australia’s regulatory system fails to fully address these risks – an issue that will grow with increased use of these technologies.

We support the Government’s ambition to reduce hate speech, violence and threats against diversity in Australia. However, we hold concerns about the Bill in its present form.

The amendments to the Criminal Code 1995 (Cth), in the Bill offer in part a symbolic solution to the risk posed by neo-Nazi and other extremist groups in Australia, and in part over-reach by over-generalised application. Criminalisation of harmful ideologies can only be part of the response – what is required is an appropriately resourced whole of government response to extremism and radicalisation. Whilst the criminal law may be the bluntest instrument at the disposal of the State, it is one of the least useful.