NSWCCL Submissions

Submission: Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

NSWCCL made a submission to the Legal and Constitutional Affairs Committee Inquiry into the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 [Provisions].

If passed, this bill would cripple the ability of litigants to have access to information that is critical for their cases for retaining a visa, becoming citizens or retaining their citizenship.

While it protects the constitutionally guaranteed powers of the High Court, the Federal Court and the Federal Circuit Court to know whatever information is relevant to their reviews of ministerial decisions, it would prevent other courts and other bodies from having such access. And vitally, it not only would allow what it defines as ‘Protected Information’ to be concealed from litigants and their counsel, it would allow them to be denied even the information that such information exists. In effect, only the Minister could use the information in court.

This is unacceptable. It is contrary to Australia’s international obligations. But most importantly, it is a severe intrusion on the rights of a person to a fair hearing. It overturns the basic legal principle of equality before the law.

More information: read our full submission


Submission: Review of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Update 4 September 2021:

NSWCCL is disappointed that once again Government and Opposition have caved to unnecessary additional powers demanded by law enforcement. By passing the Identify and Disrupt Bill, the two major parties have introduced an unprecedented incursion onto civil liberties, giving law enforcement agencies the power to take over, copy, alter and delete the social media and other online accounts of ordinary people without proper oversight.

While justified under the guise of fighting child sexual abuse, the powers can be used to "disrupt" a broad range of offences including minor offences and to investigate whistleblowers.

The once science fiction notion ("Minority Report') that law enforcement should have extraordinary powers with a new type of "warrant" in order to prevent possible future crimes from being committed is now a reality in Australia - the latest in a two decades long process of expanding powers of law enforcement and spy agencies.

The Identify and Disrupt Bill hands sweeping new powers to the AFP and the Australian Crime and Intelligence Commission (ACIC) to hack into the devices and networks of suspected criminals. 

NSWCCL made a submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) review into the Bill, in which we argued that the Bill is a catch-all formula for abuse of power without demonstrated need or regard for proportionality. 

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Submission: Review of Section 293 of the Criminal Procedure Act 1986

The Council for Civil Liberties (NSWCCL) thanks the Department for Communities and Justice for its invitation to make a submission concerning the Review of Section 293 of the Criminal Procedure Act 1986.

Excerpt:

'It is submitted that rather than providing a specific exception in relation to false complainants (as proposed by option 2) it is more desirable to consider what the principles and objectives that are sought to be achieved by this reform, rather than reactive reform in relation to a single factual scenario. Each case will bring its own unique factual issues and circumstances. Specific exceptions will often fall short of adequately dealing with the breadth of circumstances and issues of particular cases. Rather, an appropriately drafted discretion has the capacity to deal with a broader range of cases, provide protections in relation to the factors which must be taken into account and prevent piecemeal reform as other issues and factual scenarios arise in the future.'

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Submission: NSW Department of Education 2020 Code of Conduct Review

The right to free speech and the right to openly participate in political debate are rights which must be available to all residents of NSW whether or not they are employed by the Department of Education. NSWCCL is concerned that the proposed changes to the Code of Conduct by the NSW Department of Education (the Department) has the potential to reduce the civil liberties of Departmental Employees through a restriction on their rights to communicate through personal social media channels.

In this submission the NSWCCL has chosen to concentrate on question 2 in the discussion paper:

2. Where should the department set standards in respect to recognising an employee’s choice to engage with social media but ensuring the reputation of the department and public sector?

In the opinion of the NSWCCL any standards regarding the use of social media by Departmental employees should ensure their right to free speech including the right to participate in political discourse, by not going further than absolutely necessary in limiting such rights.

The proposed social media guidelines should be restricted to matters where an employee is conducting illegal behaviour, such as committing criminal offences, through their speech. No further burden on free speech is necessary for the public interest, nor justified in this context.

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Submission: Anti-Discrimination Amendment Bill 2020

NSWCCL submission to the Joint Select Committee Inquiry into the Anti-Discrimination Amendment Bill 2020 - 22 August 2020

The NSW Council for Civil Liberties [NSWCCL] considers it is very important to respond in some detail to this Joint Select Committee’s inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 [the Bill].

The issues encompassed by this Bill religious freedoms and protection from discrimination on the grounds of religion - are of great significance in a democracy such as ours. They are also extremely complex and potentially deeply contentious issues. Legislation on human rights must always be carefully considered and balanced, and this is especially so in relation to religious rights and protections. If all rights are not considered in a fair and balanced way the outcome is likely to be discriminatory and harmful to some groups and individuals and to over-privilege the rights of others.

 

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Submission: Exemption of delegated legislation from parliamentary oversight

INQUIRY INTO THE EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT

The New South Wales Council for Civil Liberties welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight.

NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.

The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.[1]

The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.

The NSWCCL submission makes 7 recommendations to the Standing Committee.

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Submission: COVID-19 Senate Committee

NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.

We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers.

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Submission: Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2020

The Council for Civil Liberties (NSWCCL) thanks the Legal and Constitutional Committee (the Committee) for its invitation to make a submission concerning the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the bill). The bill is a modified version of a bill that was introduced in 2017 (the 2017 bill).

NSWCCL would like to speak further to these arguments when the bill is considered by the Committee.

Recommendations:

This bill should be rejected.

If the bill is to proceed, it should limit the general power to search for and seize things to those which are intrinsically harmful, such as guns, knives and unprescribed narcotics. It should stipulate that items that do not present inherent risks to safety and security should only be prohibited to specified individuals where there is evidence that the person has used or is reasonably likely to use the item in a manner that presents clear risks to safety or security, and where those risks cannot be managed in a less restrictive way.

If the bill is to proceed, dogs should not be able to be used for searches in immigration detention centres.

View submission


Submission: 2020 ECOSOC High Level Segment for NGOs

NSWCCL Statement to the 2020 ECOSOC High Level Segment for NGOs 26th April 2020

The New South Wales Council for Civil Liberties (NSWCCL) recognises that the human rights and civil liberties of all people cannot be fully realised unless, and until, the global community meets the targets set by the Sustainable Development Goals (SDGs). However we recognise that development, particularly economic, need not necessarily take place in a way that is human rights based.

 In times of accelerated progress towards any goal, it is clear that states can sometimes all too quickly pursue acceleration at the expense of human rights and equality. This is not to say that acceleration is itself problematic. In line with the recommendations of the Inter-Governmental Panel on Climate Change, acceleration of sustainable development in relation to climate change (SDGS 7, 11- 15) is vital to prevent the most catastrophic climactic changes. Climate change will only entrench vulnerability and marginalisation. We strongly endorse rapid acceleration of the response to climate change, particularly within Australia.

We emphasise the importance of attaining progress towards meeting the SDG targets in a way that centres human rights obligations at the core of development. The United Nations Human Rights Council has resolved that attainment of the SDGs and implementation of human rights obligations by states should be ‘mutually reinforcing’, and a state should implement the SDGs consistently with their pre-existing human rights obligations (A/HRC/RES/37/24). This is also recognised in SDG 10 and SDG 16.

Turning to an example from Australia, the longstanding inequality between Indigenous and Non-Indigenous Australians is a deplorable stain on Australia’s history. The 2020 Closing the Gap report identifies that the child mortality rate for Indigenous Australians is slightly over double the child mortality rate for Non-Indigenous Australians (p. 15). Numeracy and literacy rates for Indigenous school students are well below national standards (p. 45). Whilst we acknowledge that some progress is being made, such progress is slow and does not comply with the spirit of the SDGs and should be accelerated alongside economic development.

To ensure that the crucial acceleration of progress responding to the SDG targets takes place in a way that advances human rights we call upon states to:

  • Ensure that justice, integrity and accountability bodies within states are strengthened and properly resourced.
  • Adopt domestic legislation which enshrines fundamental human rights and affords citizens with personal remedies to protect their rights.
  • Ensure that the rights of marginalised and minority groups are given equal, if not greater, importance than the rights of others within society to remedy past injustices.

 

Michelle Falstein

Secretary

NSW Council for Civil Liberties Australia

 


NSWCCL calls for withdrawal of revised religious discrimination bill

NSWCCL has made a submission on the Government's second exposure draft of the Religious Discrimination Bill 2019. This follows our highly critical, but nonetheless, slightly hopeful submission on the first exposure draft of the Bill in October last year. We had been hopeful that the many problems civil liberties and human rights groups had identified in the Bill might be addressed, so that this second version would provide much needed protections against religious discrimination -particularly for minority religions - which are appropriately balanced with the rights of other groups in the Australian community. 

The draft Bill's up-front objectives are spot-on: to eliminate discrimination on the grounds of religious belief; to ensure everyone has the same rights to equality before the law and that people can make statements of religious belief- all subject to reasonable restrictions. Most significantly they affirm the 'indivisibility and universality of human rights and their equal status in international law.' (Clause 3) 

However the new draft  Bill fails to deliver on these objectives - it dangerously expands the over-privileging of religious rights in relation to other rights, weakens existing protections available for other groups under current state and federal anti-discrimination laws.  If it becomes law, this Bill will increase  discrimination against and harm for many groups in the Australian community. 

It seems clear that the objects of the draft Bill have been distorted by the insertion of numerous provisions for the sole reason of conceding to the demands of major religious groups for both exceptionally broad rights and protections from discrimination by others and an extraordinary range of exemptions and exceptions amounting to an extensive right to discriminate against others with legal impunity.

In summary, NSWCCL considers this second exposure draft Bill privileges religious rights to the detriment of other rights and weakens existing anti-discrimination laws much more seriously than did the first exposure draft. We are firmly of the belief that the Government must withdraw the Bill and start again with a better and more cohesive process. 

 

 NSWCCL submission on the second exposure draft RDB