2020 NSWCCL AGM

Item 8.3        Policy on Human Rights and Technology

Human Rights and Digital Technology

Australia has experienced an exponential uptake and increased sophistication of surveillance methods, AI informed decision making, and other modern technologies collecting vast amounts of data (Digital Technology). At the same time, laws protecting individuals against breaches of their privacy rights have not kept pace with those technologies. There has been a “drift towards self-regulation in the technology sector, as laws and regulators have not effectively anticipated or responded to new technologies” [1]. While there will always be some degree of regulatory lag with regards to policy design and implementation, capacity-building programs should specifically target policy makers to ensure the development of a policy framework that is remains relevant as technology progresses.

NSWCCL acknowledges that “digital technologies have the potential to facilitate efforts to accelerate human progress, to promote and protect human rights and fundamental freedoms” but also that “the impacts, opportunities and challenges of rapid technological change […] are not fully understood”.[2] In fact, surveys have shown that community trust in new and emerging Digital Technologies has been diminishing, for example, with most Australians concerned about their online privacy.[3]

Safeguards are necessary to ensure that the liberties and rights of Australians are not unreasonably curtailed by Digital Technology. As a society, we need to avoid the possibility that people feel unable to go about their normal business because they are constantly being watched or tracked.  Once collected, used and stored by third parties, personal private information becomes increasingly difficult to protect and regulate. Often that personal private information is collected or used in a manner that is without the knowledge, or consent, of the individual.

NSWCCL policy, in the face of the expansion of Digital Technology, includes:

1. A national strategy on new and emerging Digital Technologies that promotes effective regulation, consistent with Article 22 of the EU General Data Protection Regulation (GDPR).
   
   Australian government policy on Digital Technology has tended towards self-regulation which is also, inevitably, fragmented. The Australian Productivity Commission has called for fundamental, systematic change in the way governments, businesses and individuals handle data.[4] As a starting point, the substance of Article 22 of the GDPR, should be adopted by Australian legislators, as best practice. Article 22 of the GDPR provides for the right not to be subject to a decision based solely on ‘automated processing, including profiling’ which has a legal or significant impact on the individual.
   
   
2. A National Bill of Rights. One of the most significant gaps, from a policy perspective, with regards to the protection of human rights, data collection and AI informed decision making, is the absence of legislated human rights protection, particularly through a national Human Rights Act or charter. As a corollary, international policies and treaties around human rights and Digital Technology protection need to be more effectively implemented.
    
3. Implementation of legislative framework with a human-rights centred approach.
   
   Australia needs “greater statutory clarity regarding the ambit of responsibility and consequence of automated decision making”.[5] The overarching framework should provide for Digital Technology being designed and applied around principles of transparency, accountability, responsibility, mitigation of risk, fairness and trust. It should provide for clear and enforceable laws as a main means to ensure and promote an accountable and responsible use of Digital Technology, aiming at fostering innovation while also protecting human rights.
   
   
4. Accountability of institutions for decisions that are made using Digital Technology and liability for the consequences of those decisions.
   
   Exclusion and discrimination can be exacerbated  by the “feedback loop of injustice”.[6] For example, if AI is tasked to make a decision it will base its decision on past data, and if a person if affected that is part of a group sharing a characteristic such as race, age, gender or other, it is therefore likely to replicate past imbalances and injustices that that group was involved in.
   
   This problem concerns society defining areas, such as capital distribution (who gets the home loan?), employment (who gets the job?), and criminal justice (who goes to jail?). While the public discussion of the human rights implications of Digital Technology has tended to focus on the right to privacy and non-discrimination, other areas are also engaged, such as the right to equality, the right to work, the right to justice, and the right to health.
   
   
5. Notification to the individual impacted when Digital Technology facilitated decision making occurs.
   
   The Council of Europe, Commissioner of Human Rights, considers that those who have had a decision made about them by a public authority, that is solely or significantly informed by the output of an AI system, should be promptly notified.[7] In the context of public services, especially justice, welfare, and healthcare, the individual user needs to be notified in clear and accessible terms that an AI system will be interacting with them and that there is hasty recourse to a complaints person. Specific information about processing, purpose and the legal basis for processing, should be available to the individual whether that information is retrieved directly, or from other sources.
   
   
6. A Consumer Protection approach to Consent. While consent of the user is a necessary condition for the use and decision-making processes of Digital Technology, it is not sufficient. A user should not be able to consent to waive rights under consumer law; laws which provide that the data controller must do certain specified things. Where consent is required and sought, that consent needs to be express, voluntary, specific and unambiguous;[8] not bundled consent, nor opt out. Any changes in use of information collected or stored should prompt a requirement for renewed express consent.
   
   
7. Reform to more easily assess the lawfulness of decision-making by Digital Technology. Accessing technical information used in decision-making or having open source AI are methods for doing so.
   
   
8. Easily accessed complaints and independent appeal processes, and remedies for the benefit of the adversely affected individual user.
   
   Digital technologies are still developing and high error margins need to be accounted for. At any stage, a user affected by automated decision making should have the right to human intervention.[9] The appeal system(s) that will need to be established must be easily and cheaply accessible, so that those in vulnerable positions have the chance to contest contentious decisions.
   
   
9. A moratorium on the use of the technology should be implemented in any situation where the use of a technology in a specific situation is not regulated clearly enough by the policy and/or legislative framework.
   
   Digital Technology needs to be continuously assessed for accuracy and reliability, as software behind, for example, facial recognition can still show high error margins and substantial system bias. Misidentification and bias affecting citizens have led to various city and state governments, international organisations and software companies, to either impose or call for a moratorium on the technology’s use, until its functionality and the laws around it meet certain conditions.[10]
   
   
10. The establishment of a Digital Regulatory Body (DRB) tasked with developing policies around the design and application of big data, AI informed decision-making systems and advanced surveillance technologies. Its powers including:
    
    a) Enforcement of policies. The DRB should be tasked with supervising compliance with data protection regulations by government and the private sector. [11] The powers invested in the body, like European models, should include investigation and access to premises and data processing equipment, for the purposes of compliance with regulations. There should be authority to impose a fine and/or a ban on processing.[12] 
    
    b) Regular auditing of public and private organisations’ systems to ensure high rates of policy compliance. Regular auditing also serves to detect potential bias in Digital Technologies. The DRB, given the appropriate expertise, should be able to keep intellectual property confidential and yet recognise where algorithms reinforce social differences and discrimination.
    
    c) Advocacy, encouraging laws and practices around technologies to be human rights compliant and used for the public good. Soft measures could take the shape of offering targeted education and training for decision makers and leaders, in the Australian private and public institutions, to build capacity around existing and new laws in the context of new technologies.
    
    d) Fostering innovation and technological progress. In order to achieve both human rights compliance and technological innovation and progress, the regulatory body could be tasked with the implementation of ‘regulatory sandboxes’. In these regulatory sandboxes “new products or services can be tested in live market conditions but with reduced regulatory or licensing requirements and exemption from legal liability, and with access to expert advice and feedback”[13].
    
    e) Research into making AI more privacy friendly. Privacy friendly AI systems can more easily comply with regulations, use anonymisation techniques and explain how data is processed.[14]
    
    
11. A limited statutory cause of action to sue for serious breach of privacy, where there is a reasonable expectation of privacy. The existing privacy legislation at Commonwealth and State levels does not provide protection, or remedy, for many kinds of invasion of personal privacy. Any cause of action needs to be broadly formulated to capture future forms of privacy infringement.[15]
    
    In 2019, the Australian Competition and Consumer Commission recommended that a new statutory cause of action be created to cover serious invasions of privacy with the aim to reduce the “bargaining power imbalance” between individuals and digital platforms.[16]

Resolution

That the proposed policy on Human Rights and Technology be adopted.

Moved at the NSWCCL AGM October 21st 2020 by: Michelle Falstein

Seconded by: Stephen Blanks

[1] Farthing, S., Howell, J., Lecchi, K., Paleologos, Z., Saintilan, P. and Santow, E., 2019. Human Rights and Technology: Discussion Paper. <https://humanrights.gov.au/sites/default/files/document/publication/techrights_2019_discussionpaper_0.pdf> [Accessed 13 September 2020] at p.38

[2] UN Human Rights Council, 2019. New and emerging digital technologies and human rights: 41st session. [online] Available at: <https://documents-dds-ny.un.org/doc/UNDOC/LTD/G19/208/64/PDF/G1920864.pdf?OpenElement> [Accessed 13 September 2020] at p.2

[3] Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020

[4] Australian Productivity Commission (2017) Data Availability and Use Report, p. 12 in Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. pp21-22 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020 

[5] Murray, A., 2019. Legal technology: Computer says no …but then what. The Proctor, 39(8), 48-49.

[6] Eubanks, V., 2017. Automating inequality: How high-tech tools profile, police, and punish the poor/Virginia Eubanks. New York, NY: St. Martin's Press.

[7] Council of Europe Commissioner of Human Rights (May 2019) Unboxing Artificial Intelligence: 10to protect Human Rights https://rm.coe.int/unboxing-artificial-intelligence-10-steps-to-protect-human-rights-reco/1680946e64; Also Art 13 GDPR

[8] The Norwegian Data Protection Authority (January 2018) Artificial Intelligence and privacy Datatilsynet, p.29

[9] Art 22 GDPR

[10] Conger, K., Fausset, R. and Kovaleski, S. F., 2019. San Francisco Bans Facial Recognition Technology. The New York Times. [online] 14 May. Available at: <https://www.nytimes.com/2019/05/14/us/facial-recognition-ban-san-francisco.html> [Accessed 14 September 2020]; Kelion, L., 2019. MPs call for halt to police's use of live facial recognition. BBC. [online] 18 Jul. Available at: <https://www.bbc.com/news/technology-49030595> [Accessed 14 September 2020]; Larson, N., 2020. UN urges 'moratorium' on facial recognition tech use in protests. [e-book]: AFP. <https://news.yahoo.com/un-urges-moratorium-facial-recognition-tech-protests-142542401.html> [Accessed 26 June 2020].

[11] Shaping Europe’s digital future -Report/Study (8 April 2019) Ethics guidelines for trustworthy AI <https://ec.europa.eu/digital-single-market/en/news/ethics-guidelines-trustworthy-ai>

[12] The Norwegian Data Protection Authority op.cit. p.23

[13] Op.cit. Farthing, et al., 2019 p.118

[14] The Norwegian Data Protection Authority op.cit. p.28

[15] Witzleb, Normann (2011) A statutory cause of action for privacy? A critical appraisal of three recent Australian law reform proposals 19 Torts Law Journal 104-134 DOI: 10.13140/2.1.3159.1684

[16] Australian Competition and Consumer Commission (June 2019) Digital Platforms Inquiry- Final Report <https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf>

2020 NSWCCL AGM

Item 8.2        Policy on visa cancellation on character grounds.

Preamble

Section 501 of the Migration Act enables the Minister for Home Affairs or his delegates to cancel the visa or to refuse a visa of any person who is decreed to have failed what is termed ‘the character test’.  The grounds on which this can be done are many:  they include inter alia serving a total of 12 months’ imprisonment; conviction for any offence, no matter how inconsequential, while in immigration detention; being a person who has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person, and that group, organisation or person has been or is involved in criminal conduct; being a person whose criminal or general conduct is such that the person is not of good character; or having been ordered by a court to participate in a drug rehabilitation scheme.  If a court has found a person guilty of an offence against a child, or found a charge against the person proved for an offence against a child, whatever the penalty or  even if the person was discharged without a conviction, they fail the character test.  Persons can also be found to have failed the character test if there is only a risk that that they may engage in criminal conduct, vilify a section of the Australian community,  or incite discord in a section of that community.   Harassment, which is defined as including threats to the property of a person, also constitutes a failure of the character test.

Persons are taken to have been sentenced to twelve months of imprisonment if they have received sentences for separate crimes which add up to twelve months or more, even when a court has ordered that two or more sentences be served concurrently.

If the Minister suspects one of these conditions apply to a visa holder, he may cancel the person’s visa, and the rules of natural justice apply.  Such decisions are subject to review by the Administrative Appeals Tribunal.  But the Minister is able to overrule the Tribunal.

But if he thinks it is in the national interest to cancel the visa as well, the rules of natural justice do not apply.  But under subsection 501 (3A), if the Minister is satisfied (as opposed to suspecting) that the character test has been failed, he must cancel the visa, and the rules of natural justice do not apply. 

Section 500A enables the Minister to refuse a Safe Haven visa on similar grounds.  So refugees are explicitly included.

Under section 499 of the Act, the Minister the Minister may give written directions  to a person or body having functions or powers under this Act if the  directions  are about the performance of those functions or the exercise of those powers. 

Under section 116, visas may be cancelled where they have been granted on the basis of misinformation; but also where  the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

In many respects, this legislation is unjust.  A person who has served their time after a criminal conviction should not be subjected to a second penalty or other forms of harm; and though the High Court has found that having a visa cancelled and subsequent detention do not count as a punishment, the effect on the person is the same as if it was.  A person who has reformed while in prison should not be treated as a risk to the Australian community.  A person who has been found by a parole board not to be a risk should not be treated as though they are such a risk.  It is unjust to deprive a family of a close member on whom they depend for financial or emotional support.  And while there is a case for sending persons who were criminals before they entered Australia back to the countries where they became criminals, it is not just to send back people who became criminals during their time in Australia.  

The ability of the Minister to overrule the AAT is contrary to the rule of law, and should be abolished.  

Congratulations to the winners of NSWCCL's 2020 Awards for Excellence in Civil Liberties Journalism. The standard of those nominated has been exceptionally high, which made the task of the judges so much more difficult.

From the nominees, the judges named shortlists of 3 in the Young Journalists category and 4 in the Open category. We compliment all entrants on their work and hope that you will continue in similar vein in the future.

The winner of the Young Journalist's category: Luke Henriques-Gomez of The Guardian for a series of articles on the Robodebt scheme.

'This young journalist’s articles on the Robodebt debacle exposed federal governmental policy inadequacy and ministerial failure regarding the use of technology and data management in social support programs. They opened a window on current approaches to welfare policy and their failure to observe the principles of democratic governance by being evidence-based and according procedural fairness to affected persons. This failure and indifference led to official cruelty which the articles helped to change by opening up broad debate on the issues raised.'

Congratulations Luke.

The winner of the Open category is shared: Kate McClymont and Jacqueline Maley of the Sydney Morning Herald for their piece on the Dyson Heydon affair.

'These journalists’ exclusive article on the Dyson Heydon affair demonstrated how deeply entrenched attitudes towards the abuse of women remain in our social and employment structures. They also raised wider critical questions concerning professional transparency, governance and power in the legal profession. This was courageous reporting that was respectful of sources and affirmed freedom of the press in Australia.'

Congratulations to Kate and Jacqueline.

NSWCCL’s online First Nations justice panel discussion was held on 11 September 2020, and featured Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC. Our panelists generously shared their knowledge, expertise and heart in speaking about over-incarceration of Indigenous Australians, systemic racism, 'just' policing, the Uluru Statement from the Heart and the black lives matter movement.

The panel discussion was a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

The NSWCCL First Nations Justice panelists:
- Nicholas Cowdery AO, QC, President of the NSWCCL
- Judge Myers AM, lead Commissioner of the ALRC’s inquiry into Incarceration rates of Aboriginal and Torres Strait Islander Peoples
- Sarah Hopkins, Co-Chair of Just Reinvest NSW and the Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW
- Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist

The webinar discussion was moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM. The 2020 NSWCCL Awards for Excellence in Civil Liberties Journalism were also announced.

Watch the panel discussion with the President's speech below or a trimmed version for educational institutions HERE:

Some useful links following the panel discussion -

Just Reinvest NSW

Aboriginal Legal Service NSW/ACT

Justice Reform Initiative

Not a member of NSWCCL?

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If you would like to make a donation to NSWCCL you can do so HERE.

 8 September 2020

 Systemic racism and the over-incarceration of Indigenous people must be addressed.

NSWCCL’s upcoming online panel discussion, on 11 September 2020 at 6:30pm, featuring Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC is a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

In 2018 the Australian Law Reform Commission (ALRC) was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander adults make up around 2% of the national population, but constitute 27% of the national prison population. The ALRC Report was released in March 2018 and includes 35 recommendations, most of which have simply not been addressed.

His Honour Judge Matthew Myers AM, Commissioner in charge of the ALRC Inquiry, said that while the problems leading to the over-representation of Aboriginal and Torres Strait Islander peoples in prisons are complex, they can be solved,

“Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will  improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.”

Since 2011 Just Reinvest NSW has been working to support communities to explore and establish justice reinvestment initiatives, including in Bourke, NSW. The focus is to reduce imprisonment rates by directing resources into building strong and safe communities, rather than funding prisons.

Sarah Hopkins, Chair of Just Reinvest NSW, believes that what is required is a shift in the way we view prevention, intervention and justice:

“If we are real about this, what is needed is not just a shift in funding out of prisons and the criminal justice system into crime prevention and early intervention, but a more fundamental shift in power from government to communities, including power over resources. This is about community aspirations and resilience.”

Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist, says that if NSW is serious about protecting civil liberties, then it is time to get very uncomfortable with the status quo.

“The truth is Australia is a colony built on racism, it is written into the laws and operates within its institutions.  Systemic racism requires systemic change. If you deny racism exists, then you are part of the problem. This land always was, always will be sovereign Aboriginal and Torres Strait Islander land, sky and sea.”

Ms Reid asks if we are all prepared to confront our own power and privilege to dismantle the systemic racism that continues to oppress. She states that the Uluru Statement from the Heart and the Walama Court ‘are radical attempts to change systems in our search for truth and justice.’

In considering the journey of Australia’s First Nations peoples, NSWCCL President Nicholas Cowdery AO QC believes we need to understand the history of colonialism and dispossession that has led to the disadvantage experienced by Aboriginal and Torres Strait Islander communities. In order to walk with Aboriginal and Torres Strait Islanders ‘in a movement of the Australian people for a better future’ as the Uluru Statement invites, then we also must acknowledge the resilience of Australia’s Aboriginal and Torres Strait Islander peoples.

Mr Cowdery commented:

”Australia’s First Nations peoples constitute the world’s oldest living culture - over 65,000 years. Colonisation took away their land, languages and many traditions and has left them almost without a voice to power. That process has created social disadvantage leading directly to over-representation in prisons around the country.

…This panel will discuss how we reached this disgraceful situation, why now is the time to recognise the resilience of First Nations peoples and to do something about it – and what can be done, drawing upon a huge body of knowledge already assembled.”

2020 has been a challenging year for many individuals and communities. For those who have experienced financial hardship, or are not in a position to pay for a registration, NSWCCL is offering free registration.

“We want to share this important panel discussion with as many of our members and supporters, and beyond, as we can,” says Mr Cowdery.

Registrations - https://www.nswccl.org.au/tickets_2020_nswccl_fundraiser
Free invitation - https://www.nswccl.org.au/invitation_nswccl_2020_panel_discussion

The NSWCCL First Nations Justice panelists:

• Nicholas Cowdery AO, QC, President of the NSWCCL
• Judge Myers AM, lead Commissioner of the ALRC’s inquiry into Incarceration rates of Aboriginal and Torres Strait Islander Peoples
• Sarah Hopkins, Co-Chair of Just Reinvest NSW and the Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW
• Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist

The webinar discussion will be held on Friday 11th September at 6:30pm and will be moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM. The 2020 NSWCCL Awards for Excellence in Civil Liberties Journalism will also be announced.

Download this statement as a PDF.

Save the date! 6:30pm Friday 11^th September, 2020

NSWCCL’s annual fundraiser for 2020 will be a bit different to other years. This year we have decided to hold a virtual panel discussion rather than an in-person event due to COVID-19 health concerns. 

We would like to invite you to join us for a very special online panel discussion. The panel will focus on First Nations justice and civil liberties challenges for Indigenous Australians. The discussion will be moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM.

Mark your calendar for the evening of Friday 11th September. 

Please support our 2020 annual fundraiser - purchase your event registration HERE.