On 18 December 2020, the Auditor-General for New South Wales, Margaret Crawford, released a report criticising the effectiveness of Service NSW’s handling of customers’ personal information to ensure privacy. NSWCCL has long held concerns over the manner of the use, collection, and storage of personal information of NSW citizens by the NSW government. The damning report highlights the lack of understanding and commitment to proper privacy practices in the NSW public service.

The report states that “Service NSW is not effectively handling personal customer and business information to ensure its privacy. It continues to use business processes that pose a risk to the privacy of personal information. These include routinely emailing personal customer information to client agencies, which is one of the processes that contributed to the March 2020 data breach. Previously identified risks and recommended solutions had not been implemented on a timely basis.”[1]

The Auditor-General made eight recommendations aimed at ensuring improved processes, technologies, and governance arrangements for how Service NSW handles customers’ personal information. These included, as a matter of urgency, that Service NSW should, in consultation with relevant NSW government departments and agencies, and the Department of Customer Service, implement a solution for a secure method of transferring personal information between Service NSW and those agencies.

The 2019–20 bushfire emergency and COVID 19 pandemic restrictions have dramatically increased Service NSW processes. Additionally, as of 1 January 2021, s. 36(3)(a1) of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 7), requires people who enter a hospitality venue or hairdressing salon to register their contact details electronically with Service NSW (known as the COVID-19 Safe Check-in tool and generally using QR codes). Those details are kept for a period of 28 days and, if requested, will be provided to the Chief Health Officer for contact tracing purposes.

Several issues arise from the report’s findings and the use of personal information for the COVID-19 Safe Check-in tool:

1) There was outcry over the privacy implications of the Federal COVIDSafe App and as a consequence specific legislation was introduced around its use. There has been no accompanying legislation surrounding the COVID-19 Safe Check-in tool via the Service NSW app. The privacy collection statement for the check in tool is to be read in conjunction with the Service NSW privacy policy. The former, which is largely prescriptive of the operation of the collection rather than privacy policy, assures that the information is for contact tracing purposes. The latter states that, your personal information “may also be used in an emergency situation to help prevent a serious and imminent threat to life or health, or for law enforcement purposes, or where we are authorised or required to do so by law”.

We have already seen that the Singapore TraceTogether App, on which the COVIDSafe App was based, can be accessed by police in the course of a criminal investigation.[2]

NSWCCL strongly opposes the use of information gathered for health purposes being used for law enforcement or any other additional purpose.

Apart from the obvious areas of misuse of personal data and “big Brother” implications there is a strong possibility that, if aware police can use the data, many citizens of both innocent and criminal means will choose to enter false and misleading data.

The NSW government should be assuring NSW citizens that information gathered will be used only for its primary purpose. Ideally, the management of the COVID-19 Safe check-in tool needs to be enacted in primary legislation, not just in an Order.

2) When the QR code is scanned at a venue, Service NSW will collect your name, contact details time and date of entry and, crucially, your location. Collection of this information is mandatory to gain entry.

Opting out of digital interactions is not a realistic option for most people. Balancing interests therefore amounts to having to agree to terms of access or risking the suffering of economic disadvantage, discrimination, or social exclusion. Community sentiment suggests that location data should be considered highly sensitive.

A breach of this information means that an individual could be tracked, profiled, targeted, or otherwise impacted upon. NSWCCL believes that is a privacy harm which requires greater protection.

3) Service NSW is a custodian of our data and any disclosure of our personal information to third parties and agencies should only occur in very limited circumstances. The Auditor General has identified that Service NSW has been deficient in its agreements with client agencies as well as its policies and processes for managing privacy risk.

There is therefore little reason to trust that Service NSW will protect our personal sensitive information. Service NSW must adopt the recommendations of the Auditor General immediately. 

[1] The March data breach refers to two external threats targeting the email accounts of 47 staff members, resulting in the breach of a large amount of personal customer information held in those email accounts. See Report; “client agencies” is a reference to NSW Government agencies that delegate to and enter into agreements with the Chief Executive Officer of Service NSW in order for Service NSW to undertake service functions for the agency.

[2] Han, K (11 Jan 2021) Broken promises: How Singapore lost trust on contact tracing privacy MIT Technology Review <https://www.technologyreview.com/2021/01/11/1016004/singapore-tracetogether-contact-tracing-police/>

Media coverage: Daily Mail

'Heavy-handed fines should be reserved for people who deliberately, flagrantly
and dangerously flout the rules, not for people who are confused and make
an innocent mistake.'

- NSWCCL Spokesperson Stephen Blanks

A young couple accused of 'fleeing' quarantine at Melbourne Airport on New Year's Day could sue Victoria's Health Minister for defamation if found innocent, experts claim.

The couple, from Goulburn in NSW, have apologised for leaving the airport but said they had a green zone permit and made an innocent mistake due to the confusion caused by the rapidly changing regulations.

Victorian Health Minister Martin Foley said on Saturday that the pair would each be fined at least $19,000 for breaching Victoria's public health state of emergency. 

But both Victoria Police and Victoria's Department of Health and Human Services confirmed to Daily Mail Australia that their organisations were still investigating.

NSW Council for Civil Liberties spokesman Stephen Blanks said the pair may have an action for defamation when outed as being guilty despite ongoing investigations. 

'Government ministers need to be careful to ensure not to accuse people of being guilty until all the relevant investigations have been carried out,' he told Daily Mail Australia on Sunday.

Mr Blanks said while it was possible Victoria could issue the pair on-the-spot fines, they still have the right to go to the courts and dispute the alleged offense - and that right had to be respected.

He said heavy-handed fines should be reserved for people who deliberately, flagrantly and dangerously flout the rules, not for people who are confused and make an innocent mistake.

'When these rules change day-by-day as they are at the moment, it's very onerous for people to know what they are and aren't allowed to do,' he said. 

'The objective here is to generate community compliance with the orders and criminalise people with heavy fines who may well have made an innocent mistake - if they made a mistake at all.

'It doesn't create the right environment in the community to create co-operation and compliance.' 

Read more

The Law Enforcement Conduct Commission furnished its report: Inquiry into NSW Police Force strip search practices to Parliament on Tuesday 15th December, 2020. 

It is the final report in the Commission’s ongoing inquiry into police strip search practices. The Inquiry represents a significant body of work, comprising a total of seven investigations, as well as analysis of NSW Police Force policies and training, and oversight of police investigations of complaints about strip searches.

A recurrent issue throughout the Inquiry was the failure of officers to comply with, or at least to properly account for their compliance with, the legal thresholds for conducting a strip search.

The report makes 25 recommendations. Predominantly, the recommendations seek to clarify the instructions provided to police officers to ensure that strip searches are conducted lawfully. Some are aimed at enhancing record keeping to improve accountability and enhancing the quality assurance processes to check that strip searches are conducted appropriately and lawfully. Others are aimed at ensuring that training provided to officers about when and how to strip search is clear and comprehensive. Many of the recommendations are aimed at strengthening officer understanding about the thresholds that must be satisfied before conducting a strip search.

Read the REPORT.

Senate committee calls on Parliament and government to remove barriers to oversight of emergency-related delegated legislation

The Senate Standing Committee for the Scrutiny of Delegated Legislation has today tabled the interim report of its ongoing inquiry into the exemption of delegated legislation from parliamentary oversight.

The interim report makes 18 recommendations to government and the Parliament to address systemic barriers to parliamentary oversight of delegated legislation made in times of emergency.

The NSW Council for Civil Liberties submission and hearings testimony are referenced a number of times in the Interim Report, including the following;

The report and further information about the inquiry is available on the committee's website.

NSWCCL wrote to ALP and Cross-bench Senators regarding the increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00. NSWCCL urged Senators to vote to disallow this instrument.

1 December 2020

Dear Senator,

Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020

On October 29 this year, the Government introduced a swingeing increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00 on January 1 next year.

The New South Wales Council for Civil Liberties is deeply concerned by this change, as it will prevent many people from obtaining a review and reversal of unlawful, unjust, adverse decisions.  It will prevent others from being able to afford legal representation too, thus lessening their chances of having mistakes exposed.

The change was made by a legislative instrument, which accordingly can be disallowed during the current sitting of Parliament. It can be found at https://www.legislation.gov.au/Details/F2020L01416

We urge you to vote to disallow the instrument, and thus reverse the change.

NSWCCL wrote to cross-bench Senators urging them to oppose the Strengthening the Character Test Bill.

1 December 2020

Dear Senator,

I am writing on behalf of the New South Wales Council for Civil Liberties, asking you to vote against the Strengthening the Character Test Bill, when, and if, that returns to Parliament.

Despite what has been said in the Explanatory Memorandum, this bill is not about outlaw motorcycle gangs, murderers, people who commit serious assaults, sexual assault of aggravated burglary. People who are convicted of such crimes do not receive sentences of less than a year, unless their actual offences are minor—and if so, they are known not to be a danger to the community.  People who receive sentences of a year or more are dealt with by the existing legislation.

1. This bill is a disproportionate response to visa holders who have committed minor crimes.
2. This bill will subject people who are of no danger to society to the rigours of indefinite detention, or to being deported. Families will be split. There is no evidence that “the community” would want such outcomes.
3. The bill would allow the Minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence, or no sentence at all. 
4. The bill presupposes that careful decisions of the courts, made after proper process, input by experts and the experienced judgement of judges, are inferior to decisions made by the Minister with the aid of his Department.  Sentences, after all, take account both of the seriousness of the crime and of the desirability of deterrence—both of the individual and of   others. That is, they take into account the dangers to the community.
5. The bill contains no exceptions for children.
6. The bill ignores the processes of rehabilitation.
7.  A determination that a person fails the character test, depending on how it is made, means either that their visa must be, or may be, cancelled or refused. There is a right to merits review is available only in some cases. (The courts can only deal with errors of law.) 

The extraordinary, unjust, power already given to the Minister and his delegates needs no extension—rather, it should be cut back.

We have moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting a person to his likely execution, whose two crimes concerned drug dealing.  It would be extraordinary if the Australian people accepted such an action if they knew about it. 

Media coverage: 9News

Media coverage: 7News

Could your boss make you get the COVID-19 vaccine?
The answer is more complicated than you think.

'NSW Council for Civil Liberties spokesperson Stephen Blanks agreed the issue was a complex one.

“[It] depends on the circumstances of the employment and the employee; there is no blanket rule for everyone,” he told 7NEWS.com.au.

“There could be more justification [for a mandatory jab] for staff working in a high-risk environment who have exposure to many members of the public, but there needs to be recognition that some employees may have a legitimate reason for not having the vaccine.

“These may range from religious belief through to personal health reasons, meaning a vaccine is not appropriate,” Blanks said.'

Read more

Media coverage: The Echo

'The Drug Supply Prohibition Order Pilot Scheme Bill 2020 [NSW] was recently introduced to parliament, which if passed, would allow a police officer ‘to stop, detain and search a person… who has been convicted of a serious drug offence, without the requirement for a warrant’.

As it’s a pilot scheme, the presumption of guilt and lack of basic civil rights would apply to those living in Bankstown Police Area Command and the Coffs-Clarence, Hunter Valley and Orana Mid-Western Police Districts.

The NSW Law Society told The Guardian that if passed, it could lead to people previously convicted of lower-level drug offences being harassed by police. The NSW Council for Civil Liberties said in their submission that the 10-year period within which police can apply for an order may, ‘have the unintended impact of interfering with rehabilitation efforts’.'

Read more

PUBLIC STATEMENT – 9 NOVEMBER 2020

The New South Wales Council for Civil Liberties (NSWCCL) is opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill) which provides police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.

The Second Reading Speech highlights that the purpose of the Bill is to “assist police to gather evidence of drug supply and drug manufacture effectively and efficiently”. The Bill is designed to have a “deterrent effect on a person subject to a DSPO, who may reconsider whether re‑engaging in a lifestyle involving the manufacture or supply of illicit drugs is worth the increased risk of police detection and further conviction”.

The Bill introduces a 2-year pilot scheme enabling police to apply for drug supply prohibition orders in 4 specified local area commands, against a person who is over 18 and has been convicted of “a serious drug offence”.

The orders would allow police to stop, detain and search the person subject to the order and certain vehicles, aircraft or premises, without a warrant. The application may be made by police up to 10 years after the person is convicted of the offence.

The NSWCCL is deeply concerned that the low threshold in relation to the definition of “serious drug offence” operates to cast the net unacceptably wide.  Section 5(2) lists offences under the Drug Misuse and Trafficking Act 1985 that qualify as a “serious drug offence”. The list of offences is too broad. For example, it includes section 25(1) (supply a prohibited drug) but excludes trafficable and small quantities. This means the indictable quantity is the threshold. The indictable quantity for many drugs is not very high. For example, the sale of MDMA, for the amount of 1.25g, and amphetamine is 5 grams.

The Bill provides that a Magistrate may make an order if a person is an “eligible person” and if they are likely to engage in the manufacture or supply of a prohibited drug. In deciding whether a person is likely to engage in manufacture or supply, the court may take into account “information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences”.

The Bill must be strengthened to ensure that Magistrates must take into account any information adverse to the making of the order and it should also be mandatory that the Magistrate be advised of and take into account any alternative means of obtaining evidence (such as an application for a warrant).

We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.

Although an order can only be made against someone who is 18, a juvenile conviction can still trigger an application for an order once the person turns 18. Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.

The NSWCCL oppose other aspects of the bill which are unacceptably broad, including:

• the powers for items to be seized that are not drug related.
• the power for searches of premises and vehicles in the absence of the owner/controller
• the power to search premises “at which the person resides” and “premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person”. Searches should only be allowable where police reasonably suspects the premises or vehicles are being used for an unlawful purpose involving the manufacture or supply of a prohibited drug.

The minimum period of the order is 6 months and the person who the order is made against is unable to apply for revocation within 6 months of service 13(8). This minimum period is far too long and inability to apply for revocation unexplained and unjustified. 

Other persons affected by the orders

The Bill does not give appropriate consideration to the impact the order may have on third persons. Section 7(5) states that an affidavit accompanying the application should identify persons who may be incidentally affected by the order. Police applying for the order should have a positive duty to investigate and put before the court any person who may be affected by the order and demonstrate to the court that they have engaged in investigations relating to third parties. Police should also be required to indicate the age and any vulnerabilities of third parties who may be affected by the orders.

The NSWCCL suggests a comprehensive list of matters to assist police in identifying the sorts of matters which may be adverse.

Notice and procedural fairness

Under this scheme, the person who is the subject of the order does not have to be present or given notice of the search but is only required to be given a written notice after the search. We oppose the lack of notification and a search being conducted without the person being present.

The ordinary rules of procedural fairness do not apply. The Second Reading speech reasons that lack of a notification, presence or submissions by the person against whom a DSPO is sought is to protect confidential criminal intelligence. However, the protection of confidential criminal intelligence needs to be weighed and balanced with the right of a person to be informed of an application made against them to deprive them of the opportunity to be heard.

If the applications remain without notice and in private, we are of the view that consequences for police should be built into the scheme for applications which do not properly disclose matters adverse to the making of the order, including immediate revocation of the order.  

The Bill also provides that there is no entitlement to know the reasons for the decision for making the order. This is unacceptable, anyone who has an order against them should be entitled to know the reason as to why their liberties are infringed upon. Protections can be built in to protect particularly sensitive information.

The NSWCCL supports the requirement that notice be given to an Oversight Commissioner. It is recommended that greater participation for the Oversight Commissioner is provided for including monitoring compliance of the application process, the right to make submissions on the application and monitoring compliance with carrying out the orders.

The Areas where the pilot scheme will operate

We also question the 4 areas which have been nominated as pilot scheme areas:  Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western Local Area Commands.  It is likely the nominated pilot scheme areas will disproportionately impact indigenous people, marginalised groups and people of low socio-economic status.

The NSWCCL acknowledge the harm that illicit substances have on the lives on individuals and their families and the harm they cause communities. Police currently have the powers necessary to investigate the supply and manufacture of drugs. The extraordinary powers provided by this Bill diminish protections and civil liberties of those subject to the order, and third persons who may also be affected by an order. NSWCCL does not support the enactment of this Bill. If the Bill is to pass, significant amendments must be made, in particular to the length of the orders, the breadth of the criteria of “eligible person”, the factors to be taken into account when making the orders by the court and police obligation to inform the court of adverse impacts of the orders.      

See the Bill HERE.