NSWCCL has made a submission to the Parliamentary Joint Committee on Intelligence and Security Review of the National Security Legislation Amendment (Comprehensive Review and Other measures No. 1) Bill 2021.
The Bill would amend several acts and would increase the powers of Australian intelligence agencies.
These changes raise a number of questions about what this entails for Australians and, in particular, the work of journalists and media organisations. CCL is concerned that the proposed amendments will carry undesirable consequences.
Our concerns include:
- The breadth of circumstances in which heads of intelligence services can act without Ministerial approval, as well as their capacity to then delegate powers to junior staff members.
- Could baking for a lamington drive or turning chipolatas at a sausage sizzle held by a local community group constitute ‘support’ for a listed organisation? Such support could be relied upon by the Minister to authorise activities to enable intelligence to be produced - despite having been provided innocently by someone unaware that the group is listed.
- The proposed amendments have the potential to limit the freedom of journalists and media organisations and inhibit the provision of information to the public. They could be misused and weaponised against media organisations to hinder journalists’ abilities to freely report on legitimate news.
- Is it appropriate for staff immunities to extinguish the rights of affected Australians to obtain a legal remedy in respect of any loss or damage they may suffer if their computer or device is affected during intelligence activities?
We fear that the proposed amendments have the potential to add to an incremental erosion of the civil rights and freedoms of Australians.Read more
NSWCCL made a submission to the Australian Human Rights Commission welcoming its plan to develop a National Anti-Racism Framework.
In particular, we support:
- building a stronger legal framework to improve protections against racial discrimination
- constitutional recognition of First Nations peoples
- implementation of the UN Declaration of the Rights of Indigenous Peoples
- effective anti-racism and racial equality initiatives
NSWCCL has made a submission to the Joint Standing Committee on Migration Inquiry into the Ending Indefinite and Arbitrary Immigration Detention Bill 2021.
In our view, passing the Ending Indefinite and Arbitrary Immigration Detention Bill into law is morally and legally necessary. The Bill corrects the deviation from human rights and international norms in the course the government has taken in its treatment of refugees and unauthorised arrivals under the domestic legislative framework.
There are 1,513 people in immigration detention facilities, including 1,276 in immigration detention on the mainland and 237 people in immigration detention on Christmas Island. There are also 137 people effectively in detention on Nauru and another 145 people effectively in detention on Manus Island and PNG. The suffering of unauthorised entrants to this country under Australia’s system of indefinite mandatory detention is well documented. Indefinite detention is inhumane and cruel. Loss of liberty is one of the greatest punishments that humans bestow on each other. As a nation, we are guilty.Read more
NSWCCL has made a submission to the Inquiry into Religious Discrimination Bill 2021 and related bills.
It is our view that the suite of bills, in their current form must be withdrawn for reconsideration and redrafting, or opposed. They do not get the balance right between the important task of protecting religious adherents and non-believers from religious discrimination; and protecting others from discrimination by religious adherents and non-believers.Read more
Update: The Privacy Act Review Report was released on 16 February 2023. NSWCCL was pleased to see that many of the recommendations the Council made in our submission were supported in the review.
A key recommendation in the review is ensuring the collection of, use and disclosure of personal information is fair and reasonable, including whether the “impact on privacy is proportionate to the benefit”. The Council supports the inclusion of non-exhaustive legislated factors that are relevant to determining whether the collection, use, or disclosure of personal information is fair and reasonable in the circumstances. However, it considers that clear guidance and examples of how these factors may apply in practice must be provided.
The standard of ‘fair and reasonable’ must be assessed by reference to the perspective of the individual, rather than being assessed from an APP entity’s perspective. We consider that having clear guidance from the outset, rather than waiting to see how the courts interpret such new provisions, will empower APP entities to appropriately assess whether any proposed data collection, use or disclosure would be unfairly prejudicial to, or unreasonable having consideration to the expectations of, the individual. In particular, to the extent that these factors do require consideration of what is ‘fair and reasonable’ from the perspective of the individual, the APP entity should be required to consider and satisfy each factor. This is because the protection of personal information and right to privacy should be fundamental to the Act, and should not be readily outweighed by business considerations.
The review has also proposed “direct right of action” that allows individuals to seek compensation in the Federal Court for a breach of privacy, which privacy advocates have long called for. To access the action, a claimant would first need to make a complaint to the Office of the Australian Information Commissioner (OAIC).
The Council supports the creation of a direct right of action. The NSWCCL considers it important that individuals can personally litigate a claim for breach of their privacy under the Privacy Act. However, the ability of individuals to do so is currently limited. The creation of a direct right of action would therefore give individuals greater control over their personal information by providing an additional avenue of redress under the Privacy Act. This, in turn, would encourage better compliance by APP entities of their privacy obligations under the Act.
However, the expansion of the OAIC’s funding is critical given that several proposals contained within the Discussion Paper involve the broadening of the OAIC’s current remit. Chronic underfunding will erode the effectiveness of any privacy protections the OAIC seeks to implement and support. To properly conduct both its existing and proposed activities, the OAIC must be adequately funded and consulted in respect of the resources it requires. The OAIC received limited funding to support its privacy initiatives in the 2021-2022 Federal Budget, despite a significant expansion in its activities with the onset of its Digital Economy Strategy.
NSWCCL made a submission to the Review of the Privacy Act 1988 advocating for urgent reform to modernise the Act and ensure it is fit for purpose in the digital economy. Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. In this regard, the NSWCCL submits that the right to privacy should be the paramount object of the Act and considers the two primary areas of concern in debates relating to privacy are:
- (a) the intrusive observation of one’s actions (whether by surveillance, listening, data analysis or other mode); and
- (b) the discussion and the misuse of personal information.
NSWCCL supports in-principle many of the proposals outlined in the Discussion Paper and commends the Attorney General’s Department for reflecting the legitimate privacy concerns of a broad spectrum of society. Many Australians are concerned about gaps and ambiguities in the existing privacy regime that undermine the right to privacy. This is especially important in the context of unprecedented integration of digital technology in our everyday lives.
Submission to Legal & Constitutional Affairs Committee re Migration Amendment (Strengthening the Character Test) Bill 2021
NSWCCL made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions].
This is the third time that such a bill has been presented to Parliament. We made an extensive submission to the 2019 version of this bill, and those criticisms stand.
Australia has moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting people because a minister cannot be sure that they are not a danger to the community.
In fact, it we now accept deporting people to their likely death:
'counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there'1
Criticisms made by the Australian Human Rights Commission, the Australian Law Council, The Federation of Ethnic Communities Councils of Australia, the Parliamentary Joint Committee on Human Rights, the Scrutiny of Bills Committee and the Visa Cancellations Working Group also still apply.
We are disappointed that the Bill has been reintroduced without those criticisms being answered.Read more
Update 17 August 2022: The Commonwealth Government has completed its 2021-2022 review of the Legislation Act 2003. NSWCCL continues to hold the view that the recommendations of the committee could have and should have gone much further. Read our blog post here.
It is extremely concerning that the Government has chosen - in the wake of the powerful arguments made in the Committee report on the overreach of exemptions to disallowance - to double down on the notion that the Executive should have untrammelled powers to rule by decree without parliamentary oversight.Read more
On 18 November NSWCCL made a submission to the Inquiry into the Provisions of the Voluntary Assisted Dying Bill 2021.
We encourage NSW residents to let the Inquiry know how you feel via its online questionnaire (closing date Monday 22 November).
NSWCCL strongly supports the Bill, which has very strong public support and is long overdue. Death may be inevitable, but it need not be cruel.Read more
On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.
NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.Read more
NSWCCL and the Sydney Institute of Criminology have made a joint submission expressing concern about the Commonwealth’s continuing detention scheme for terrorist offenders and its lack of compatibility with human rights law and fundamental principles of criminal law.
We argue that serious consideration should be given as to whether the scheme is necessary. If the scheme is to continue, we argue that the scheme should be amended in substantial ways to enhance (to the extent possible) its compatibility with human rights law.Read more