The right to protection against race hate speech
The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal or major weakening of Part IIA of the Racial Discrimination Act which prohibits racially motivated hate speech.
At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision. Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3). Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.Read more
NSWCCL recently lodged a submission with the Attorney General’s Department and the Department of Communications and Arts in January 2017. We reiterated our view that the current metadata scheme is an affront to civil liberties and oppose its extension into civil proceedings. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In our submission we noted the international experience, which suggests that metadata rarely makes a difference in criminal investigations.Read more
In February 2016 a Senate Select Committee was set up to ‘inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.’ NSWCCL gave some time to considering what position –if any- it would take on this contentious matter, however the Turnbull-generated double dissolution meant the Inquiry lapsed.
The Committee produced an interim report of no great consequence in that it did not go beyond recommending further research into appropriate anti-corruption systems. It did however canvass the issues with the current system in some detail and it did conclude that there were shortcomings that needed addressing. Even this cautious conclusion was too much for the two government members of the committee (Eric Abetz and David Johnson) and they included a dissenting view that there was no evidence of such shortcomings.
The political debate as to the need for a national anti-corruption body is again very much alive. Not surprisingly, the Senate moved as soon as the current session began to reactivate an inquiry into whether a National Integrity Commission is needed and if so its scope and power. It is to report by 15th August. Senator Gallagher moved the resolution on behalf of the leader of the ALP in the Senate (Penny Wong).
This Senate decision pre-empted a motion later that day from the leader of the Greens, Senator Di Natale calling on the Senate to bypass an inquiry and move straight to the establishment of ‘an independent federal anti-corruption commission to oversee federal members of parliament and the public service”. This was defeated.Read more
A new body of vital importance to the NSW justice sector -the Law Enforcement Conduct Commission (LECC) – was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.
Both s18c of the Race Discrimination Act and the Australian Human Rights Commission are again under serious attack from the Federal Government.
George Brandis’ attempt to weaken s18c in 2014 was soundly repudiated by the Australian people and the then PM (Abbott) wisely retreated and abandoned the amendment. NSWCCL strongly opposed the Brandis Bill and thought the Government unlikely to try again given the depth of community anger aroused by the proposal..
We were misguided. Emboldened by the recent rise of the far right here and overseas – and within the Liberal Party - the Government is now targeting not just the legal protections against racist abuse provided under s18C but also the processes of the AHRC which have served Australia well for 20 plus years.
This new push poses a serious threat to the protections currently provided by the RDA and to the AHRC. We have therefore again joined many others in arguing the case against weakening s18C and in supporting the overwhelmingly positive record of the AHRC in resolving the vast majority of complaints effectively through conciliation while dismissing those that are trivial or vexatious. We are not aware of any cases under the RDA which have unreasonably constrained freedom of speech in Australia.Read more
Jim Marsden welcomes the audience and gave powerful personal insight into his brother John's life
On 1 December 2016 the NSWCCL and the Marsden family hosted the 2016 John Marsden Memorial Lecture. John Marsden was a former President of the NSWCCL, former President of the NSW Law Society and activist for LGBTIQ rights and civil liberties. The event was held at the Masonic Centre in Sydney. It was a particularly successful and well-attended event, with over 120 people. Jim Marsden welcomed the audience and gave a powerful personal insight into his brother John's life, which was so tragically damaged by society's then deeply hostile attitude to homosexuals. Read more here.
Pauline Wright, Vice President of the NSWCCL and President elect of the New South Wales Law Society, spoke briefly of her experience as a young lawyer working for John Marsden, before introducing The Hon Michael Kirby AC CMG (an honorary life member of NSWCCL.)
Michael Kirby began with some thoughts on his friend John Marsden, including that John had chosen to be more “in your face” about his sexuality than others at the time.
Kirby's speech (SEE FULL SPEECH HERE) reminded us of the contribution of John Marsden to the education of LGBTIQ students, noting that attendees at the lecture included recipients of scholarships that he established at the University of Western Sydney.
He mentioned prior John Marsden memorial lectures, by Anand Grover, Professor Jenni Millbank and then DPP Nick Cowdery (now an active member of the NSWCCL Committee). He thanked Nick Cowdery for his presence at this lecture.
Michael’s topic was John Marsden, LGBTIQ Rights today: the Ongoing Challenge for Equality. He delivered a clear and illuminating update on LGBTIQ rights issues from an international perspective, organized around a summary of the good news, the bad news and breaking news.
The good news concerns the greater acceptance of LGBTIQ rights and the important legislative improvements that have occurred in many countries in recent years. He noted that in the last 16 years, a very short time relatively speaking, many countries have enacted laws for marriage equality.
Sadly in Australia, out of step with other advanced democracies around the world, we do not yet have marriage equality. Michael Kirby’s reaffirmed his well-known opposition to the plebiscite and listed many other important legislative changes that have not required a plebiscite. Neither should marriage equality. Michael considered that with the blocking of the plebiscite, marriage equality in Australia is certainly a few more years away.
In his summary of the bad news he drew particular attention to the disturbing fact that in many countries around the world, including many Commonwealth countries, violence against LGBTIQ people is endemic.
As breaking news news, Michael reported on a recent important Human Rights Council resolution establishing the appointment of an expert to investigate violence and discrimination based on sexual orientation and gender identity.
It was not an uncontested outcome. African nations in early November forced a vote on whether the appointment of the expert should be delayed. Thankfully that resolution was blocked. However, the vote in favour of the appointment of the expert was close. Several countries abstained or failed to vote. If they had voted, it is entirely possible the vote may have gone the other way.
This is a sobering situation, given that this issue is not about marriage equality or other rights, but violence against LGBTIQ people - a fundamental right that people should not fear violence just because of their sexual orientation.
The audience response to Michael's speech made it clear that they appreciated his informative summary of the state of LGBTIQ rights around the world.
Louise Marsden (one of Johns sisters) gave a vote of thanks to Michael Kirby. In passing she noted their Catholic father's injunction that she and her siblings should not only love well, but love whoever they choose.
The evening finished in a convivial atmosphere, sharing drinks and canapés with old and new friends. It was a fitting reminder of the trail blazing work of John Marsden.
We would like to express our sincere thanks to the Marsden family for supporting the evening.
Concerns over human rights standards in Australian juvenile justice centres were brought to national attention with Four Corners’ recent expose on Don Dale Detention Centre in the Northern Territory. However, these revelations were not unprecedented. After a two-year inquiry, Australian Law Reform Commission’s 1997 Seen and Heard report presented a number of proposals for reform of juvenile justice processes and detention facilities.
15 years later, the UN Committee on the Rights of the Child (‘UNCRC’) noted that Australia’s juvenile justice system ‘still requires substantial reforms for it to conform to international standards.’ In 2013, the Australian Human Rights Commission called for a review of the Australian Government’s reservations to the Convention on the Rights of the Child. It also recommended ratification of the Optional Protocol to the Convention Against Torture and better monitoring of juvenile justice legislation and policy. These were echoed in a report published by Amnesty International last year, especially to address the overrepresentation of Aboriginal children in detention.
It follows that, while only a small proportion of Australia’s youth population has contact with the criminal justice system, there remain serious, yet still unaddressed, concerns about protection of the rights of those who do. This report will evaluate juvenile justice legislation across Australian states and territories in relation to international human rights law. Those areas of law which do not comply with Australia’s human rights obligations include: the age of criminal responsibility for young people, mandatory sentencing, detention on remand, discipline, living conditions within detention centres and both national and international mechanisms for investigation of detention facilities. In doing so, the report will highlight how law reform and other practical initiatives may be necessary to better protect the civil liberties and human rights of children throughout all stages of the juvenile justice system; in particular, the right to protection from cruel, inhuman or degrading treatment, freedom from arbitrary detention and the right to a fair trial...
 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) .
 Australian Human Rights Commission, Children’s Rights Report 2013 (2013)
 Amnesty International, A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia (2015) <http://www.amnesty.org.au/images/uploads/aus/A_brighter_future_National_report.pdf>
 Australian Institute of Health and Welfare, Youth Justice in Australia 2014-15 (April 2016) Australian Government <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129554930> 2.
NSWCCL wholeheartedly supports the High Court challenge brought by Doctors for Refugees against the Commonwealth and the Minister for immigration and Border Protection in relation to the secrecy provisions of Border Force Act 2015.
The Act contains provisions which allow for the imprisonment for up to 2 years of doctors, social workers and others who disclose ‘protected’ information regarding conditions in immigration detention centres.
As a result these people may be liable to imprisonment for complying with their professional standards and ethical obligation to report abuse, because such abuse occurs in an immigration detention centre. Reporting abuse outside immigration centres is required by legislation, but is criminalized in the context of immigration centres.
There is no convincing justification for the introduction of such draconian provisions. We believe the only reason for these provisions is to silence those working in detention centres. This is contrary to the principles of transparency and open debate, which are fundamental in a democracy. How can people support government policy when they have no idea what is being done in their name?
NSWCCL strongly opposed the introduction of the secrecy provisions of the Border Force Act, which were introduced with bipartisan support. These toxic and undemocratic provisions should be repealed immediately.Read more
In March this year, the NSW government passed legislation aimed at intimidating anti-coal seam gas protesters, joining a growing trend toward restricting environmental activism in Australia. This legislation, The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016, follows similar legislation targeting Tasmanian anti-logging protesters and Western Australian environmentalists. The two primary purposes of the bill are to confer expanded powers on police and to severely enhance penalties for protesters.
Abortion (administering or having) has been a criminal offence in NSW since colonization. However, since 1971 NSW case law has established that abortion is lawful in exceptional contexts where it can be established that it is necessary to preserve a woman from serious danger to her life or mental or physical health and it is not out of proportion to the danger to be averted.
Having to rely on this limited defence is a deeply flawed and unsatisfactory legal position for both women and medical practitioners. The right to lawful abortion remains uncertain and limited in NSW, which generates reluctance among many practitioners to perform abortions, with serious consequences for many women.
The decriminalization of abortion has long been CCL policy.
There has been recent reform of abortion laws in the ACT (2002) Victoria (2008) and – more limitedly in Tasmania (2013). In these jurisdictions, abortion has been decriminalized and is treated as primarily a health issue.
Many activists in NSW who support abortion law reform have been reluctant to campaign around the issue in recent times. This is because of the ever-present possibility that a very conservative NSW Parliament – especially Legislative Council – might react with stronger anti-abortion legislation removing the current lawful defences and thus make the situation far worse for women.
The NSW Greens have decided to challenge this analysis and are attempting to revive a strong campaign for the decriminalization of abortion in NSW.
Accordingly, Dr Mehreen Faruqi (Greens MLC) has drafted an abortion law reform bill that abolishes all criminal offences relating to abortion in NSW, as well as introducing some other protections including the establishment of exclusion zones around abortion centres and requiring medical practitioners who conscientiously object to abortion to refer a woman to another practitioner who does not have such an objection.
NSWCCL has met with Dr Faruqui and discussed her strategy and made some technical suggestions for changes to the draft bill. We have agreed to support the campaign – although we are very aware of the hostile attitudes of some members of the NSW Parliament and think it likely that the campaign will be a long one.
The Greens are holding consultations about the bill. They will be holding a public meeting in the Glebe Town Hall on Monday 6th June at 6pm. We urge interested members and supporters to attend.
Dr Lesley Lynch