New South Wales Council for Civil Liberties announces that nominations are now open for two awards for excellence in civil liberties journalism for an article or series of articles, or a radio, television or podcast presentation, promoting civil liberties. The two awards are:

• for young journalists under the age of 30 on 2 June 30, 2020, and
• the open category.

Submissions are welcome, whether by self-nomination or third-party nomination. Submissions must include copies or links to the material that is the subject of the nomination. 

To be eligible, nominations must have been published or broadcast in Australia between July 1, 2019 and June 30, 2020, and must be received by the NSWCCL by 11:59pm, on 14th July 2020.

Nominations should be made online, to [email protected].

Nicholas Cowdery AO QC
President NSW Council for Civil Liberties

Read about last year's finalists and award winners HERE

The Supreme Court of Victoria has found that the Victorian Government has prima facie breached their duty to take reasonable care for the health of a person behind bars during the COVID-19 pandemic.

The case, an urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that people in prison are sitting ducks for COVID-19, and that it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.

While the Court didn’t make any findings of fact given the case was heard as an interlocutory hearing, the Court did find that there was a prima facie case that the prison authorities breached their duty of care to safeguard the health of the person in prison, and that the Government must act compatibility with the Victorian Charter of Human Rights.

Read more

This is an excerpt from a news article originally published by the Human Rights Law Centre, 2 May 2020.

4^th May 2020

The right to protest should not be curtailed

The NSW Council for Civil Liberties has grave concerns with the actions of the Victorian Police in the arrest of Chris Breen. To our understanding Mr Breen has been charged with incitement under section 321G of the Crimes Act 1958 for involvement in a protest car convoy. We are equally concerned with the issuing of infringement notices and fines of $1652 to 26 other participants.

On Good Friday the Refugee Action Collective planned a peaceful demonstration to highlight the living conditions for the refugees being held in the Mantra Hotel, Preston, The Mantra is being used as an Alternate Place of Detention (APOD). The purpose of the demonstration was to bring attention to the difficulties of maintaining social distancing and other hygiene concerns in the facility. NSWCCL has already voiced their concerns  with the conditions in APODs.

Acknowledging the social distancing laws in place at the time, the protestors organised a car convoy with no more than two people in each car. The previous day a similar convoy had been held by the United Voice Union and although there were threats made in the media by the Victorian Police, no arrests were made, as was appropriate for a peaceful protest

On Good Friday the Victorian Police acted otherwise, by arresting Refugee Action Collective member Chris Breen in his house, holding him for nine hours at Preston police station, seizing his electronic devices (including his son’s) and charging him with incitement under section 321G of the Crimes Act 1958 for involvement in the car convoy. Police also issued infringement notices and fines of $1652 to 26 participants in the convoy.

NSWCCL has a number of concerns with the actions of the Victorian Police.

We are concerned by the use of public health measures to respond to matters of political action.

We are concerned with the precedent these actions could have for future rallies, protests or picket lines.

In order to maintain the civil right to protest in Victoria we make the following demands:

1. The charge against Chris Breen to be dropped.
2. The infringement notices be revoked.
3. The Victorian Police and Government approve future car convoys and other safe forms of political protest.

NSWCCL has also written to Victorian Police Commissioner, Graham Ashton AM regarding this matter. View the letter HERE.

Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to [email protected]

See this statement as a PDF

NSWCCL are asking members and supporters to urgently write to a group of Federal Ministers warning them of the risks involved in keeping 100 refugees in the Kangaroo Point Central Hotel, an alternative place of detention (APOD) in Brisbane, and 50 in the Mantra Hotel APOD in Melbourne.  We are calling for their immediate release into safe places in the community as part of the public health response to the COVID-19 emergency.

The risk in APODs is that they are crowded, and social distancing is impossible. Moreover, guards, service staff and others go in and out, generally without personal protective equipment. 

There are 9,900 members of I Have a Room, who have declared their willingness to look after asylum seekers and refugees in their own homes.  In APODs and Detention Centres, here, in Nauru and Manus Island, there are a few more than 1,400 asylum seekers and refugees. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it.

We thank you for taking this action to help protect asylum seekers and refugees in Australian care during the COVID-19 health crisis.

- Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to [email protected]

Please write in your own words, or copy and paste the example letter below into an email, and send to:

The Hon. Alan Tudge, Acting Minister for Immigration [email protected]

The Hon. Peter Dutton, Minister for Home Affairs [email protected]

The Hon. Anne Ruston, Services Minister [email protected]

The Hon. Greg Hunt, Minister for Health [email protected]

The Hon. David Coleman, Minister for  Immigration, Citizenship, Migrant Services and Multicultural Affairs. [email protected]

Dear Ministers,

You will be aware of the concerns expressed by Mr. Ed. Santow about the COVID-19 health risk due to overcrowding inside two alternative places of detention (APODs) for refugees and asylum seekers - that is, in the Kangaroo Point Central Hotel in Brisbane and the Mantra Hotel in South Preston, Victoria.  According to Mr. Santow, social distancing is not possible while so many are detained there, and the lives of the detainees are at risk.

APODs are not isolated from the wider community--guards, service staff, cleaners and others go in and out.  They can carry infection in, and others will carry it out.  Mr. Santow's warning should be treated seriously and the response should be urgent.

I remind you of the consequences of Donald Trump's dismissal of warnings about the novel coronavirus as fear-mongering.

I am writing therefore to urge you to rescue the people detained in those two places from their almost inevitable infection with the SARS-2 virus if they stay there, and the likely deaths of some of them.   I urge you  to act swiftly and place them in community detention, or release them to safe places in the community. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it. 

There are 9,900 members of I Have a Room who have declared their willingness to take an asylum seeker or refugee each from detention into their own homes. 

I urge you to take up their offers, and act before it is too late

Yours sincerely,

(SIGN HERE)

Download the letter as a PDF to print, sign and scan/photograph and send via email.

20^th April 2020

CONCERNS RE PRIVACY AND DIGITAL COVID-19 CONTACT TRACING

Prime Minister Scott Morrison has confirmed that the Australian government is progressing with Singapore-style digital options for contact tracing. The proposed app tracks, via Bluetooth technology, the previous close contacts of an individual who subsequently proves to be COVID-19 positive.  This applies to any contact (also with the app) who had spent 15 minutes or more in close proximity with the infected person.

NSWCCL is concerned with the potential of the app to compromise data protection, increasing illegal and inappropriate use of data and facilitating surveillance and stigmatisation of Australians. Any collection or use of a person’s sensitive personal data for digital contact tracing must come with the imposition of strict limitations.

Despite assurances that the proposed app is opt-in and therefore voluntary, NSWCCL has grave concerns over the safety and privacy of information gathered, stored and shared, along with the potential for abuse of that information. Widespread uptake of any contact tracing app and effective contact tracing will be dependent on whether the Australian people trust the government to take their privacy concerns seriously. It is possible that, as with the My Health Record, the app is transitioned to opt-out, or worse, becomes mandatory because of insufficient uptake. Equally concerning is the possibility that individuals could be excluded by their workplaces or schools if not using the app.

The Minister has said If an individual registers COVID-19 positive status, that information is sent to a national health storage and then sent to State governments to notify the individual’s contacts. Cyber-attacks and accidental and illegal data breaches have and will continue to occur on Australian government databases. It is therefore desirable that mobile device contact tracing be decentralised, with contacts registered in encrypted form on the local mobile device, and not identifiable to others or the government. Such measures reduce the fallout should a data breach occur.

In convincing the community that restrictions can be eased with faster contact tracing, the government should be reminded that privacy and health are not tradeoffs, one for the other. Both are possible with well-designed technology.

NSWCCL recommends that the Australian government consider the use of alternative more privacy friendly digital contact tracing options which are currently under development. These options are rapidly becoming available. The Apple/Google collaboration is opt-in contact tracing which generates transitory arbitrary IDs processed locally on the device and not uploaded onto a central server. Bluetooth anonymous identifier beacons notify persons who have been in contact with a COVID-19 subject.  MIT and the EU are developing similar apps. The EU DP-PPT model uses a backend server to push information through to notify the contact of a risk of infection and has purpose-limiting dismantling of the app at the end of the emergency.

NSWCCL recommends that the Australian government, at least, adopts the following privacy protections in the implementation of the proposed digital COVID-19 app:

• Consideration of reasonable digital alternatives to the proposed model of digital contact tracing
• Transparency and accountability, providing information about the development and use of any mobile device tracking technology and how rights of the individual will be affected and protected,
• The technology must be opt-in after the provision of accurate and complete information about the extent of its use, with the requirement to renew consent periodically,
• The ability to opt out or terminate participation at any time, accompanied by built-in destruction of personal data,
• The use of best practice privacy and security measures, including:
• short, clear and accurate privacy policy;
• strict and express data retention and destruction policy, linked to a short period of application;
• limits on the type of data collected and how it can be accessed;
• anonymisation of data;
• strict limits on data sharing, in particular no sharing of information between government agencies except for public health purposes,
• Decentralisation of anonymised data on users’ mobile devices,
• Strict limitation in relation to the purpose and objects, for which users have expressly consented. Personal data should not be retained for any new purpose,
• A clear, short period of application – (the sunset period for Israel’s contact tracing app is 30 days)
• An easily accessible complaints system and independent judicial oversight, to address any grievances,
• No ability to subpoena data through court proceedings, and
• An independent oversight role for the Office of the Australian Information Commissioner (or other government office) and the new Senate COVID Committee, with regular public reporting of data collected by the technology.

Beyond these specific recommendations it has been longstanding NSWCCL policy that the Australian Government should legislate for a Bill of Rights and a statutory cause of action for serious invasion of privacy.

Nicholas Cowdery AO QC

President NSW Council for Civil Liberties  

------------------

Contacts

Michelle Falstein Secretary NSWCCL: [email protected]

Dr Lesley Lynch: [email protected]

Today the High Court unanimously found the AFP warrant to enter  journalist Annika Smethurst’s home in search of information relating to the publication of classified information, was invalid on a technical ground:

“that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful”

Costs were also awarded to the plaintiffs.  

NSWCCL welcomes this limited victory for Annika Smethurst today - but we remain deeply concerned that freedom of the press and effective investigative journalism continues to be under serious threat in Australia.  This decision does nothing to alleviate those concerns.

The unprecedented raids on both Smethurst and the ABC offices occurred in the context of widespread community concern about the proliferation of draconian secrecy laws and the impact of these laws on the free press and investigative journalism in Australia - especially in relation to reporting on national security matters. 

The motive for the raids was clearly to warn off journalists and whistle-blowers.   The publications posed no threat to national security and the revelation of the information was in the public interest.

The High Court finding that the warrant lacked ‘sufficient precision’ identifies an apparent lack of competence in the AFP’s drafting, but has no wider implications for any protections for investigative journalism or freedom of the press in Australia.

The AFP -with the agreement of the Minister – is still able to press charges against Annika Smethurst.

Divided HC views on return of the unlawfully seized information

Surprisingly - even though the “entry, search and seizure” were declared unlawful – a majority of the High Court Justices refused the plaintiff’s application for the return of the information copied from the journalist’s mobile phone onto a USB stick. 

This was a particularly disappointing majority (4-3) decision.

A key agenda for the raids was the identification of the journalist’s sources which this information is likely to enable.

Whistle-blowers underpin much investigative journalism. If journalists are no longer able to guarantee their informant’s anonymity, investigative journalism and an effective free press will be greatly weakened.

The minority views of the three dissenting Justices (Gageler, Gordon and Edelman) on this issue provide a more positive perspective.

Justice Gordon was of the view that:

165 The law would take a seriously wrong turn if this Court held that it could not grant an injunction to restore a plaintiff, so far as possible, to the position they would have been in had power not been exceeded without the plaintiff demonstrating that, in addition to the excess of power, a private right is also breached by retaining what was seized. To require demonstration of some further or additional private law wrong as the only basis on which injunction may go treats the excess of power as irrelevant and ignores the constitutional purpose of s 75(v) of the Constitution.

Justice Gageler took a similar position:

117…I do not share their Honours' doubts as to the existence of a juridical basis for the final mandatory injunction which Ms Smethurst seeks, requiring the AFP to deliver up the USB drive on which the copied data is stored to enable that data to be deleted. And I disagree with their Honours' view that such an injunction should be refused in the exercise of discretion.

122 For so long as the information remains in the hands of the AFP, the direct effects of the infringement of her rights to possession of her home and of her mobile phone are serious and ongoing. There being no suggestion that the value of the information embedded in the data to her is wholly commercial, money alone cannot restore her to the position she would have been in had the trespasses not been committed. 

All three Justices ordered the return of the USB drive to Annika so the data could be deleted. Gordon and Edelman also required the AFP to delete any copies. Gageler was silent on this but flagged the obvious fact that nothing stopped the AFP from seeking a new and valid warrant for the information.

Legal and constitutional implications

The one application by the plaintiffs which may have had significant legal and constitutional implications was that:

the warrant was invalid on the ground that s 79(3) of the Crimes Act, as it stood on 29 April 2018, infringed the implied freedom of political communication.

This matter was not addressed by the High Court as it was not necessary given their decision that the warrant was invalid on technical reasons.

Therefore the huge issue relating to the encroachment of draconian secrecy laws on the freedom of the media in Australia will have to wait the outcomes of the pending report of the Parliamentary Joint Committee on Intelligence and Security on this broad issue.

This now very overdue PJCIS report will be very significant and carries a weight of expectation that it is not likely to be able to meet given the constraints of its terms of reference.  

In our view, the only effective remedy for the current immense constraint on the media’s capacity to deliver quality investigative journalism and to provide the reporting the community needs to hold governments accountable is a major rollback of Australia’s excessive secrecy laws and a strong human rights charter which includes an effective right of the media to freedom of expression.

NSWCCL Public statement 

Smethurst v Commissioner of Police 

The NSW Council for Civil Liberties welcomes the unanimous decision by the Senate to establish a Select Committee on COVID -19 matters.

The Committee has a wide scope. It is empowered “to inquire into and report on:

1. a) the Australian Government's response to the COVID-19 pandemic; and
2. b) any related matters.”

It has strong powers to gain information, hold public or private hearings,  publish evidence, findings and recommendations and a direction that it be “provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President”.

It will have a core membership of 7 being: 3 nominated by the Leader of the Opposition in the Senate; 2 nominated by the Leader of the Government in the Senate; 1 nominated by the Leader of the Australian Greens; and Senator Jacqui Lambie. Other Senators will be able to be nominated as participating – but not voting - members.

On the face of it, this new Select Committee should be able to make a significant contribution to democracy in oversighting the Government’s responses to the COVID -19 pandemic.  In so doing it will hopefully provide some much-needed scrutiny of Government decisions and their implementation to fill an astonishing accountability vacuum created by the closure of the Australian Parliament until 11 August 2020.

The Government’s continued refusal to amend the Parliament’s sitting schedule to provide for sittings over the intervening months is a betrayal of the people’s rights to transparency and accountability in government.

NSWCCL public statement

Previous statement: 6 April 2020, Call for senate committee scrutiny of government responses to COVID-19

Previous statement: 30 March 2020, Statement: COVID-19 and Government oversight - Prolonged Parliamentary Adjournment unacceptable and Dangerous for Democracy

Media coverage: The Canberra Times

The NSW Council of Civil Liberties has called for the state's chief medical officer to be consulted about fines issued under extraordinary laws designed to prevent the spread of COVID-19.

It follows concern that police may be issuing infringement notices to people who do not pose a risk of spreading the virus.

NSWCCL spokesman Stephen Blanks disputed whether going for a drive should be classified as an offence. "That activity has negligible community risk, of course there could be a risk if there was an accident, but it's very remote," he said.

"The experience of the past week suggests the commissioner should be getting some guidance from the chief medical officer of NSW as to whether particular activities involve community health risk."

Mr Blanks warned maintaining community support for the laws would be essential in the weeks and months ahead.

"It's unprecedented, the idea that everyone is confined to their homes unless they have a reasonable excuse to leave. The fact is there is widespread community observance of the laws, but the most important thing is the community support for them is maintained," he said.

"If the police are seen to be enforcing them in a heavy-handed way it will result in a loss of community support and will be counter-productive."

Read more

NSWCCL is engaging with the fast moving covid-19 crisis on a number of fronts. The maintenance of core democratic processes to ensure adequate parliamentary scrutiny of the government’s responses to the crisis is a high priority for us and other civil society organisations. Our intention is not to hinder the Government’s capacity to act with necessary speed in the face of the unprecedented challenges of the pandemic. Rather, our aim is to give confidence to the community that government responses are being scrutinised for lawfulness, proportionality and fairness through transparent parliamentary processes. Without this confidence public trust in the Government over this period is likely to be weakened. 

Like many others, we have urged both the NSW and the Australian Governments to rethink their decisions to close down their parliaments over the next crucial months. The NSW Parliament is not scheduled to resume until 15th September and the Australian Parliament not until 11^th August. The Australian Parliament will sit for one day next Wednesday (8^th April) to approve the latest tranche of emergency spending.

We have also called for the establishment of a strong, bipartisan Senate Select Committee to scrutinise and report on the Government’s responses to the pandemic crisis. NSWCCL joined 7 other legal and civil society groups in a public call for such a committee to approved when the Parliament sits on Wednesday:

The Senate must establish the Select Senate Committee when it reconvenes, for potentially just one day, next Wednesday. A Select Senate Committee will provide a vital avenue to business, civil society groups and individuals to provide information to inform Government decision-making and feedback on the impact of those decisions, so that no one is left behind and no one is left in the dark. 

The NSW and New Zealand Governments have already established committees to oversee their Governments’ response to COVID-19.

A Select Senate Committee is just a part of the solution – Australians also need regular parliamentary processes to continue. It is vital that our Parliament sit, in a way that is safe, so it can make decisions rapidly as the pandemic unfolds. 

Participating groups in addition to NSWCCL were Human Rights Law Centre, Centre for Public Integrity, Amnesty International, National Aboriginal  and Torres Strait Islander Legal Services, People with Disability Australia, GRATA Fund and the Public Interest Advocacy Centre.

Other groups – including eminent ex judges -  have made similar calls for such a committee. 

At this point of time we are hopeful that the Senate will set up such a Committee next  Wednesday to provide the much-needed and focused scrutiny on Government actions over this extraordinarily challenging and scary period in Australia’s history.

Joint media statement