Submissions (blog)

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: Review of NSW Data Sharing (Government Sector) Act 2015

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Department of Customer Service in read to the Review of the NSW Data Sharing (Government Sector) Act 2015.

Recommendation 1
NSWCCL considers that it is a misuse of information to use it for a purpose other than that for which it was obtained. All information whether personal or not should not be shared unless consent for that secondary or repurposed use has been obtained. Personal information should not be shared if the limitation for specific purpose cannot be guaranteed.

Recommendation 2
The Act should encompass provisions for independent assessment of the appropriateness of the purpose for which data is proposed to be shared and used. The assessment should have regard to its necessity, use, value to the public and whether there is a risk of loss, harm or other detriment to the community if the sharing and use of the data does not occur.

Recommendation 3
An assessment regime should be included in the Act to ascertain the appropriateness of:

  1. a)  the information to be shared, including whether it is appropriate to be shared at all, or

    stay with the authoritative source,

  2. b)  the agency to receive the information, having regard to the whether the agency has the

    appropriate skills and experience and will restrict data appropriately.

Recommendation 4
Personal information should be shared only in exceptional circumstances, in a safe and controlled manner and provided that it can be established that privacy interests should be outweighed.

Recommendation 5
If personal information is shared that information needs to be anonymised or deidentified according to a strict protocol which includes an assessment as to whether data may be reidentified.

Recommendation 6
The Act is inadequate in terms of its privacy safeguards. The Act should include necessary technical, operational and legal data governance and data management provisions.

Recommendation 7
To minimise the social implications of privacy violations and maintain accountability there should be auditing and reporting provisions in the Act. Those provisions should address, at the least, details of:

  1. a)  the nature of data being collected,

  2. b)  data destruction in accordance with agreed time limits,

  3. c)  compliance with consent provisions,

  4. d)  details of any complaints.

Recommendation 8
NSWCCL considers that there should be developed and included in the Act a set of transparent and consistent standards so that privacy is not circumvented during an emergency.

Recommendation 9
The definition of Government Sector Data is too broad and limitations on the type of data to be shared should be set out in the Act.

Recommendation 10
The number and type of agencies included in the definition of government Sector agencies is too broad. Data recipients should be assessed independently as to their appropriateness to receive the data.

Recommendation 11
NSWCCL considers that the Act relies too heavily on the PPIP Act which may be overridden by other statutes and has too many exemptions in its operation. NSWCCL strongly recommends a review of the PPIP Act.

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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 Recommendations

Recommendation 1: The Committee’s role should be expanded so that it can analyse legislative instruments which are not subject to parliamentary disallowance, disapproval or affirmative resolution of the Senate, and to scrutinise the justification for the existence of delegated legislation of that substance and form in the first place.

Recommendation 2: All delegated legislation should be subject to parliamentary disallowance in normal times, with the Legislation Act 2003 (Cth) amended to reflect this.

Recommendation 3: Delegated legislation may only be exempt from parliamentary disallowance in exceptional or emergency situations, with clear criteria established in the Legislation Act 2003 (Cth) in relation to sunset periods for such legislation and the use of Henry VIII clauses.

Recommendation 4: An investigation be initiated by either this Committee or some other authority to determine, pending an authoritative statement by the High Court of Australia, whether the practice of exempting legislative instruments from parliamentary disallowance amounts to an unconstitutional abdication of legislative power, as has been suggested by leading constitutional commentators.

Recommendation 5: Parliament should use all means possible to continue sitting, even during emergencies, in order to provide its scrutiny and supervisory functions over delegated legislation. Parliament should investigate further the possibility of meeting virtually by electronic means and have regard to the arguments of constitutional experts such as Professor Twomey in this process.13 This recommendation echoes previous public statements made by NSWCCL.

Recommendation 6: As PIAC recommends, implement recommendation 18 of the 2019 inquiry into delegated legislation, recommending that legislative instruments, subject to limited exceptions, commence 28 days after registration.

Recommendation 7: As PIAC recommends, implement recommendation 16 of the 2019 inquiry into delegated legislation, recommending that the Office of Parliamentary Counsel modify the Federal Register of Legislation to enable instruments which are exempt from disallowance to be readily identified.

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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.

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Submission: Regional Processing Cohort Bill 2019 - August 2019

The Bill proposes to ban permanently from Australia any person who entered Australia as an unauthorised maritime arrival after 19 July 2013, was transferred to the Republic of Nauru (Nauru) or Papua New Guinea (PNG) for “regional processing”, and was at least 18 years of age at the time of their first (or only) transfer (the Cohort). Such people were forcibly transferred to Nauru or PNG against their will, detained indefinitely, and subjected to serious human rights violations after their transfer.

Recommendation: The Bill should be rejected.

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Submission: Migration Amendment (Repairing Medical Transfers) Bill 2019 - August 2019

The New South Wales Council for Civil Liberties (NSWCCL) thanks the Legal and Constitutional Affairs Legislation Committee for its invitation to make a submission concerning the Migration Amendment (Repairing Medical Transfers) Bill 2019. 

Recommendation: All three proposals under the Bill should be condemned, and the Bill itself should not be passed.

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Submission: Inquiry into the Reproductive Health Care Reform Bill 2019 - August 2019

The NSW Council for Civil Liberties welcomes the opportunity to make a submission to the NSW Parliament Standing Committee on Social Issues inquiry into the Reproductive Health Care Reform Bill 2019.

The passage of the Reproductive Health Care Reform Bill 2019 through the NSW Legislative Assembly with a vote of 59 to 31 is a long awaited, historic moment for NSW women and the NSW Parliament. We are hopeful this will be followed by the its passage through the Legislative Council without amendment leading to the removal of abortion from the criminal law in NSW.

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Submission: Free and Equal, Human Rights in Australia - July 2019

A NSW Council for Civil Liberties Submission to the Australian Human Rights Commission’s Free and Equal: An Australian conversation on human rights project. This submission argues that human rights have not been respected in Australia, are not protected, and suggests some methods to improve human rights in Australia.

This submission intends to address the following questions from the Issues Paper:

2. How should human rights be protected in Australia?
3. What are the barriers to the protection of human rights in Australia?

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Submission on Migration Amendment (Clarification of Jurisdiction) Bill 2018 - April 2018

In relation to the Amendment, it is submitted that: Avenues to commence actions in the Federal Court should remain open; The Federal Court is more suitable for hearing class actions than the Federal Circuit Court; The Federal Court is more suited to hearing significant migration appeals; The amendment is likely to affect human rights; There is concern about the complexity of the Migration Act provisions

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Supplementary Submission relating to AG’s amendments to National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 - March 2018

Having examined the AG’s amendments, the CCLs maintain their initial view that they are significant steps in the right direction and improve some of the most dangerous aspects of the Bill. However, we also maintain our view that the problems with the secrecy offences go beyond the issues identified by the AG

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