On Monday the Attorney-General held a press conference in which he provided more information on the two ‘tranches’ of counter terrorism legislation he is bringing into the Parliament this week. NSWCCL like other concerned organisations is struggling to stay on top of the fast moving agenda and is increasingly disturbed at what appears to be hasty decision making. 

On the basis of yesterday's press conference we have put out a statement updating our reactions to AG's latest information. This covers the Government's response to the PJCIS report on its review of the National Security Legislation Amendment Bill 2014 (Tranche 1) and the so called bundle of new laws to deal with the threat of Australian jihardist fighters here and overseas - the 'Foreign Fighters Bill (Tranche 2). 

While we, of course, support ASIO and the AFP having adequate powers and resources  to protect Australians against the real threat of terrorist activity - as long as it is consistent with the maintenance of a healthy democracy - there is much to be concerned about in the proposals coming forward.  

Tranche No 1  The National Security Legislation Amendment Act

• Torture and ASIO immunity in Special Intelligence Operations context

NSWCCL joined others in protesting the potential for the proposed immunity provisions to permit ASIO officers to carry out acts of torture. We therefore welcomes the AG’s decision to explicitly prohibit torture from the immunity provisions associated with the proposed ‘Special Intelligence Operation’.

The explicit prohibition in the legislation is necessary as the existing draft legislation clearly encompassed the possibility of ASIO officers having immunity for acts of torture. The issue was not a ‘red herring’ as the AG claimed, but a significant and relevant concern to remove serious ambiguity from the legislation. 

Next week the Abbott Government will be seeking Parliamentary approval of the National Security Legislation Amendment Bill 2014.  

NSWCCL and the other civil liberties organisations across Australia- along with human rights, legal, media and community bodies- are deeply concerned about and opposed to major elements of the new counter-terrorism proposals in this bill. But at least we have had some time to consider them and present our views–even though the time (20 days) to react to a large and complex bill with such significant new powers and offences was seriously inadequate.

Now it appears the Government will also seek to rush through the, as yet unseen, new bundle of counter-terrorism proposals it has been flagging piecemeal over recent weeks.

This has become clearer in the aftermath of the major counter-terrorism raids in Sydney last Thursday and the resulting very high level of media hype and commentary by the Prime Minister and other members of the Government. This is precisely the wrong moment and the wrong kind of context to be rushing through as yet unseen significant new counter-terrorism legislation.  

The NSW Council for Civil Liberties has called for a one-line amendment to ensure the government’s proposed changes to counter-terrorism laws do not leave the way open for ASIO officers to argue they have legal immunity for torture.

The call has been triggered by concern that planned changes aimed at protecting undercover ASIO officers might have the unintended consequence of encouraging them to believe they have legal immunity to engage in torture.

Article: Counterterrorism laws pave way for ASIO to use torture, says Council

Source: The Australian, 19/9/14

Despite strong protestations from businesses and the public, the NSW Government is proceeding with its City of Sydney Amendment (Elections) Bill 2014  -the ‘Borsak Bill’ - to grant multiple votes to owners of rateable land in the City of Sydney council elections.

NSWCCL joined many other deeply concerned voices in opposing the bill which Robert Borsak from the Shooters and Fishers Party introduced into the Legislative Council with the agreement of the Government. We intervened because the bill is such an obvious and disturbing affront to democratic principle.

The bill was withdrawn from Parliament earlier this month for “redrafting”. There was some hope- given the extent and strength of the opposition to it – that its most offensive elements might be amended. Certainly it was hoped the anti-democratic and retrograde proposal to give two votes to non-residential voters would be amended.  

Astonishingly, the Government has not responded to the criticism. Instead, its redrafting is only at the margins and does not remove the multiple voting rights for non-residential voters.

CCL maintains its opposition to this bill. The proposed changes offend basic civil liberties principles and should be rejected. NSWCCL supports the fundamental democratic principle of one person one vote. It is greatly disappointing that the NSW Parliament appears set to move away from democratic principles towards a local government franchise more strongly based on property.

It is even more disturbing that the Bill will allow these anti-democratic provisions to be extended to other councils by future regulation.

The Bill is currently being debated in the Legislative Council. The Labor Party and the Greens in the LC yesterday both argued strongly and convincingly against the redrafted bill.  As Fred Nile has signalled his support – and a Shooters and Fishers Party member is the lead proponent – the opposition of Labor and Greens will not be enough to block this very bad legislation.

The Greens have proposed amendments which would remove the 2 votes proposal. The independent member for Sydney, Alex Greenwich has an alternative bill which would deliver the administrative improvements which the Government believes are needed, without offending against the fundamental democratic principle of one vote one value.  Labor has indicated its support for the Greenwich Bill. 

Failing any of these gaining support in the Parliament, NSWCCL urges Labor to commit to repealing this legislation as soon as it regains Government.

 CCL statement to MPs

Read Labor and Greens LC speeches 

CCL is strongly opposed to the Governments much criticized Bail Amendment Bill 2014. We oppose it because a flawed policy making process has produced unjust and retrograde draft legislation. We expressed our opposition to the knee-jerk review process to the Government and the review chair and when the bill was debated in the assembly.  

The bill is now being debated in the Legislative Council. It looks certain to be passed with little opposition. Sadly, only 3 members of the lower house voted against it (Alex Greenwich independent, Jamie Parker Greens and Greg Piper independent). Disappointingly, the Labor Party did not oppose the bill.

Given the Shadow Attorney-General Paul Lynch’s robust, detailed demolition of the ill-conceived review of the new Bail Act and the main proposals in the Bill, Labor should support a vote to block the Bill in the upper house. The shadow AG in his second reading speech, correctly described the process leading to the bill:

'The Government's solution was to institute a bail review, which resulted in the bill presently before the House.....there are some obvious points that should be made. Most obviously, the Government does not have the slightest idea what it is doing. Then it went through an extremely exhaustive process to get the Law Reform Commission reform. It then went through another lengthy period and process to respond. After settling on its position, it took 12 months to implement the Act and ensure that practitioners and stakeholders understood it and could implement it. A very lengthy and considered approach, a cautious, careful and serious attempt to implement a change in the law—all blown away by a few weeks of bad publicity. It was a knee-jerk reaction totally at odds with the cautious, considered approach that predated it; a reaction, as was made clear by the comments of Don Weatherburn of the Bureau of Crime Statistics and Research [BOCSAR], that was not based upon any proper statistical analysis.'

T'he speed of its change made clear that the Government had no commitment to the scheme in which it had invested a vast amount of time and to which it devoted a great deal of consultative resources. It did not know what it actually supported, and it will probably change it again at the drop of a hat. ' 

The shadow AG concluded his critique with these words:

'The Opposition does not oppose the bill but it thinks the Government has not the slightest idea what it is doing. The Government flip-flops all over the place about this legislation. There will inevitably be another set of amendments because the Government cannot manage to keep its hands off the legislation; it has no clear idea of what it wants to do and how it will do it. The Government is driven by a number of factors, none of which have anything to do with serious and proper policymaking. The Opposition does not oppose this bill, but it will watch with considerable interest what happens to it over time.'

CCL urges Labor to rethink this decision. It would be an extraordinary manifestation of hypocrisy for Labor to 'not oppose' the legislation, as it has suggested it will do. 

The NSW community is in search of good government.  Labor will only be able to position itself as an electable party if it demonstrates it is capable of acting on principle and sound policy analysis.

Labor knows there was no sound reason for the review.    Labor knows that the Bill is not good law. Labor knows the changes will lead to unjust outcomes for individuals.  Labor knows that the increased gaol population will be an unnecessary cost to Government. 

Labor knows that this whole knee-jerk process to review and amend a new law after 3 weeks is a travesty and a depressing return to the appalling process that generated the 85 amendments that made the old Act unworkable.

The Government should not have introduced this Bill.  Attorney General Brad Hazzard was correct in saying a review was not warranted  (Daily Telegraph 19/6/14).  The law and order auction fuelled by shock-jocks is not in the public interest.

NSWCCL will continue to lobby the Government and the Parliament to withdraw this bill and, in the longer term, to take a more principled and responsible approach to policy development and the making of our laws.  

The voting changes proposed in the City of Sydney Amendment (Elections) Bill 2014 (the ‘Borsak Bill’)
offend basic civil liberties principles.

The Bill proposes to give 2 votes to owners of rateable land, 2 votes to rate paying lessees, and 2
votes to occupiers of rateable land in the City of Sydney, for that council’s elections.

The NSWCCL supports the fundamental democratic principle of one person one vote.

We do recognise that corporations and businesses have long been entitled to non-residential voting
rights in the City of Sydney. This is not our preferred position which is that democracy is about
representing people not property. 

In the context of the current Bill, we register our strong opposition to the profoundly undemocratic
proposal to increase the current entitlements for corporations owning, leasing or occupying rateable
land in the City of Sydney from one to two votes.

This is a move in precisely the wrong direction for democratic government. The notion of the
property franchise should be being rejected in the interest of effective democracy- not strengthened
as proposed in the Borsak Bill.

NSWCCL urges the NSW Parliament to reject the City of Sydney Amendment (Elections) Bill 2014
(the ‘Borsak Bill’)

We note the alternative private members bill has been introduced into Parliament by the
independent MP Alex Greenwich: City of Sydney Amendment (Business Voting and Council Elections)
Bill 2014 (the Greenwich Bill). This Bill is preferable in that it maintains the current entitlements for
eligible corporations and businesses to one vote.

If the parliament considers improvements are necessary to the current arrangements for registration on the electoral roll then the Greenwich Bill is acceptable in that it does not further offend against the fundamental democratic principle at stake.

 CCL statement to MPs

The NSW Parliament has today resumed debate on the Government's Bail Amendment Bill 2014. NSWCCL strongly opposes the Bill.

The Government’s decision to respond to a narrow section of the media and hastily and prematurely review the new Bail Act is now history.  It acted with indecent and unwise haste in the face of widespread professional and expert advice that review of the Bail Act was seriously premature and would have to reach conclusions without access to meaningful operational data.

This unsound process has produced a Bill which should be rejected by Parliament as unwarranted and retrograde draft legislation. If the amendments to the Act are passed, the effect will be to graft onto a coherent, unified, clearly grounded and eminently workable system under the 2013 Act a number of qualifications of the kind that wrecked the original 1978 Act.

NSWCCL has two major principled objections to the Bill.

The creation of so-called “show cause” offences constitutes a reintroduction of presumptions against bail for prescribed offences by the back door. The presumption scheme was soundly criticised in the revamp of the Bail Act and this grafts presumptions against bail, with all their faults, back onto the scheme of the 2013 Act. It introduces complications for no clearly discernible legitimate benefit. The effect will be to transfer more power to the police, by their selection of charges before the Office of the Director of Public Prosecutions has a chance to exercise independent judgment in charge selection.

Further – and more seriously – the onus of proof has been reversed in relation to those offences. Article 9 of the ICCPR states (in effect) that remand in custody is not to be the default position for people – any people – charged with offences, yet this creates such a position and imposes upon the accused to prove that it should not apply.

If one’s right to liberty is to be taken away, then the onus has always been on the party that seeks to remove it to establish lawful grounds for doing so. This will no longer be so in respect of these offences. The mischief done by these provisions is tacitly acknowledged by the exemption of juveniles from the scheme.

NSWCCL has recommended the Bill be withdrawn by the Government or failing that rejected by Parliament. If the Bill is to proceed we have further recommended it should be referred to a Parliamentary Committee for consideration of its implications in relation to the reversal of the onus of proof and the reintroduction of ‘show cause ‘offences and to allow proper public consideration of the Bill

Read CCLs full statement 

The attorney general, George Brandis, has denied referring lawyer Bernard Collaery and a former intelligence officer to the Australian federal police after they revealed that Australia spied on Timor-Leste during negotiations over a lucrative oil and gas pipeline.

The head of the NSW Council for Civil Liberties, Stephen Blanks, said the lack of a public-interest defence available to Collaery or the agent was “a gaping hole in Australia’s legal system”.

“Some of the most important breachers of classified info have been totally justified because of those being in the public interest,” he said.

“What this prosecution will do is have a chilling effect on potential whistleblowers and the media and if it continues, there will be self-censorship and the media will not live up to its obligation of being a fearless investigator and reporter on matters of national importance.”

Article: Timor-Leste spy case: Brandis denies referring lawyer to police

Source: The Guardian 1/9/2014

Twelve months after the United Nations Human Rights Tribunal criticised the indefinite detention of more than forty refugees with negative security assessments from ASIO, the Abbott government has failed to respond to the tribunal's report.

"Australia's Government is thumbing its nose at the UN, saying, 'We're not interested in what you think about human rights.' "

Video: No response on indefinite detention

Source: ABC 'Lateline', 21/8/2014

NSWCCL Secretary Dr Lesley Lynch and Civil Liberties Australia CEO William Rowlings have given testimony on behalf of Australian Civil Liberties Councils at the Parliamentary Joint Committee on Intelligence and Security public hearing, following a recent joint submission by the councils regarding the National Security Legislation Amendment Bill (No. 1) 2014.

Dr Lynch raised a number of concerns with the bill, including the lack of evidence-based justification for some of the enhanced powers, lack of effective oversight, the startling degree of ambiguity and loose definitions throughout and also an apparent lack of consideration of longer term impacts of legislation introduced to allegedly address short-term terrorist threats but ultimately remaining for the longer term. 

Read the transcript here

Read the submission