March 30, 2020
PROLONGED PARLIAMENTARY ADJOURNMENT UNACCEPTABLE AND DANGEROUS FOR DEMOCRACY
For the duration of the ongoing COVID-19 crisis, NSWCCL calls upon the Commonwealth and NSW Governments to accord full respect to the principles of parliamentary supremacy and responsible and representative government, which are fundamental features of Australia’s democratic and constitutional arrangements.
To this end, we urge the State and Commonwealth Governments to act through parliamentary processes and to continue to exercise legislative powers to the fullest practicable extent for the duration of this crisis. We urge them to reconsider parliamentary adjournment until September and August respectively. The NSW Parliament should also update its committee processes to enable NSW parliamentary committees to operate virtually, similarly to the way committees at the Commonwealth level are able to operate.
Adherence to these principles will ensure that Australians continue to enjoy full democracy, accountability and transparency from their leaders, and therefore maximum protection of their civil liberties during these challenging times.
The consequence of these parliamentary shutdowns, in the words of constitutional law expert Anne Twomey from the University of Sydney, “is that there will be very little parliamentary scrutiny of the government for nearly five months, a critical period during which extreme powers may be exercised.”
The emergency circumstances in which we find ourselves render it difficult to overstate the potential for the dramatic overreach of unreviewable executive power. Decisions of the High Court since 2009 make this problem even more serious.
This is not merely an academic point. Limiting the power of the executive to act without parliamentary scrutiny – that is, without the scrutiny of ‘the people’ – can seriously endanger our civil liberties. As Chief Justice Owen Dixon once wrote, “history and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected.” Government must be responsible and be held responsible to the people through the people’s house insofar as possible.
Arguments to the effect that the country does not need ‘political infighting’ during a crisis should be rejected as a justification for closing down Parliament. Parliament can sit without descending into a circus, and there has been a high degree of bipartisanship throughout the crisis so far as evidenced by the sittings on 23 March 2020. Those concerned about the legality of virtual sittings of the Commonwealth Parliament should be comforted by research showing that there are no serious legal barriers to this solution.
Even the darkest days of the World Wars did not force Parliament to close for extended periods. NSWCCL believes Australia needs more democracy and accountability in these difficult months, not less.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Contact: Jared Wilk Convenor, Civil Liberties and Human Rights Group
 See e.g. Pape v Commissioner of Taxation (2009) 238 CLR 1.
 Communist Party Case (1951) 83 CLR 1 .
Asylum Seekers and Refugees must be considered in the response to the Covid 19 Emergency.
The NSWCCL has grave concerns for the health and safety of those held in immigration detention centres on the Australian mainland. Media reports have described conditions in the Villawood Detention Centre of up to 200 detainees in close contact during mealtimes and the cramped conditions in the Mantra hotel in Brisbane which is being used as an Alternate Place of Detention (APOD).
We are also concerned for those who are in the community and may be left without access to Medicare and Centrelink. The Federal Government has extended the range of people who can access Centrelink payments with the aim of providing money for those who need it however, as explained by Paul Power from the Refugee Council of Australia, “This thinking should be extended to everyone in the country who is in need, particularly those who have no access to any form of safety net or to Medicare because of their visa status.”
We ask our members and supporters to act upon these concerns by letting their Federal Members of Parliament know of their concerns. More information and a prepared letter are on the Refugee Council of Australia website.
Dr Martin Bibby and Angela Catallo, co-convenors, Asylum Seekers an Refugees Action Group
March 27, 2020
NSW Attorney General, Mark Speakman SC
Anthony Roberts MP, Minister for Counter Terrorism and Corrections
Peter Severin, Commissioner, Corrective Services NSW
Gary Forrest CEO Justice Health
The NSWCCL has written to the NSW Attorney General Mark Speakman SC to acknowledge the strong leadership shown by taking swift and decisive action to amend the Crimes (Administration of Sentences) Act 1999 to create a power for early release to conditional parole in some circumstances. If this power is exercised to substantially reduce the number of people held in detention in NSW, this will be a significant step towards slowing the spread of COVID-19 and saving lives.
We urge the Attorney General to also consider relieving the strain on prisons and consequential health risks caused by the burden of overcrowding by amending the Bail Act 2013. In 2013 the Audit Office of NSW identified that 33% of the NSW prison population were on remand. This proportion of the prison population can only be reduced through release by police or courts under the Bail Act.
The current bail framework can be applied to reduce the numbers. In particular the court can take into account the delays which will be experienced in finalising cases as a result of the impact of the pandemic and also vulnerabilities of the accused, for example their age, pre-existing conditions or if they are an Aboriginal or Torres Strait Islander person.
However, the Bail Act does not currently provide for the impact of the spread of the virus within the prison system on the community or other people detained or working or attending correctional or detention centres. An express provision in the Bail Act which provides that the court must take into account the risks posed by COVID-19 to inmates, correctional staff and other gaol workers, their families and the community more broadly, would send a clear message to police and the courts that Parliament acknowledges the serious and fatal risks posed by a spread of this virus.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Rebecca McMahon & Eugene Schofield-Georgeson
Convenors, Criminal Justice Action Group
March 24, 2020
COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 doesn’t do enough to protect human rights
The NSW government has now passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020. The NSW Council for Civil Liberties (NSWCCL) appreciates the government’s rapid response in introducing emergency public health measures, at this time. The government has a broad range of public health and emergency response powers available under current legislation, for responding to public health emergencies. Although some elements of individual liberty and equity may be overridden to protect the wider community, when exercising those powers, the government must remain vigilant to avoid the grave human rights violations likely to affect the most vulnerable in our society. Those vulnerable include those who are unable, because of disability; poverty; their migrant status; or incarceration, to access emergency economic or health services. If unprecedented numbers of job losses ensue, as predicted, then the number of vulnerable in our society will swell.
It is for these reasons that the NSWCCL wishes to highlight a number of disturbing aspects of and omissions from the Bill:
- Pre-recorded evidence in criminal trials does not give the opportunity for the defence to cross-examine the prosecution witness which is an essential component of criminal justice process. While acceptable, in some limited specific special circumstances, this provides for a much broader range of witnesses, if the class of persons is revised by regulation.
- Evidence given from a remote location, by video link, would provide the same protections, in terms of disease, but would have the benefit of allowing cross-examination. If it is considered that this cannot be achieved, due to a lack of resources, that is not a sufficient reason, where the integrity of the justice system in achieving fair trials is at risk.
- The possibility of a 12 month, or longer period, for the emergency measures to be determined by the Attorney-General, is not satisfactory. There should a be a firm sunset date, so that parliamentary approval is required, for any extension.
- The Bill invokes powers, in s747B of the Local Government Act, that allow legislation to be amended or repealed without going back to Parliament for consideration. Although emergency situations may be a valid exception to the principle, the NSWCCL generally opposes these as they produce less scrutiny and Parliamentary control over legislation. This is not considered a necessary measure in these circumstances.
- The Bill should include strong whistleblower protection for health workers. In a health crisis of this kind, it is more important, than ever, to ensure that the public can have access to accurate information, in a timely way. Health workers are obviously in a position where they will often be first to know, and they should be protected from persecution, and prosecution, if they genuinely see a need for public disclosure of information.
Finally, NSWCCL has released a statement specifically addressing COVID-19 and prisons which can be accessed at the following link https://www.nswccl.org.au/statement_covid_19_and_prisons.
NSWCCL contact: firstname.lastname@example.org or Michelle Falstein 0412 980 540
About NSW Council for Civil Liberties
NSWCCL is one of Australia’s leading human rights and civil liberties organisations, founded in 1963. We are a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression. We also listen to individual complaints and, through volunteer efforts; attempt to help members of the public with civil liberties problems. We prepare submissions to government, conduct court cases defending infringements of civil liberties, engage regularly in public debates, produce publications, and conduct many other activities.
March 24, 2020
Reducing the risk of COVID-19: reducing the number of people in custody
The risk of transmission of COVID-19 in correctional centres and youth detention centres demands urgent action to reduce the number of people in those centres.
The NSWCCL strongly supports the ‘Open letter to Australian governments on COVID-19 and the criminal justice system’ https://www.abc.net.au/news/2020-03-20/open-letter-to-australian-governments-on-covid-19-and-the-crimi/12076342.
Overcrowding of gaols is a well-known condition which renders the prison population more vulnerable to the spread of infectious diseases. Many people in custody present with pre-existing and chronic health conditions which may increase the risk to their health if infected with COVID-19.
We are deeply concerned that failing to significantly reduce prison numbers will lead to a rapid spread of the infection which would unacceptably compromise the health and safety of inmates, young people and the families and communities to whom they are released. This is particularly concerning for Aboriginal and Torres Strait Islander people who are overrepresented in the criminal justice system and who suffer poorer health outcomes. We are also concerned for the health and safety of corrections and justice health staff, lawyers, cleaners other gaol workers and the families and communities they go home to.
The risk of infection will inevitably be exacerbated by the significant delays in finalising cases which will result from important measures being put in place by the courts to limit face-to-face contact of court users, such as the suspension of jury trials. On 23 March 2020 a restriction was placed on new criminal cases commencing in the NSW District Court (other than sentences and appeals) and directed that trials currently listed be vacated and be re-listed after October 2020 (with the exception of Judge alone trials and current trials). The Supreme Court announced that from Tuesday, 24 March 2020 ‘there shall be no personal appearances in any matters save in exceptional circumstances’
Reducing prison numbers can be done by:
- Urgently considering legislation to enable early release of prisoners who are not considered high risk or who are soon to be released as has been done in some other countries
- Amending the Bail Act and the Crimes (Sentencing Procedure) Act to require courts (and police in relation to bail) to take into account the potential impact of COVID-19 upon the accused and the community.
- Police and the courts taking into account the impact of COVID-19 upon the accused in the context of the current bail framework, including the accused’s potential risk of exposure, the length of time in custody (including the impact of the delays), the vulnerability of the person and the likelihood of a custodial penalty (which may more appropriately be a community based option if the person is vulnerable to infection by virtue of their incarceration or the person has a vulnerability which increases the risk to their health).
We urge that courts refrain from imposing sentences of full-time custody unless assurances are provided by corrective services that:
- the offender will not be forced to share cells or spaces which are inconsistent with the government guidelines in relation to distancing; and
- that offenders will not be exposed to persons who corrective services are aware may be infected or at risk of carrying the virus.
Transparency and Accountability
The information currently available on NSW Corrective Services and NSW Justice Health websites is inadequate. Inmates, young people in detention, their families, the public, the legal profession and the courts are entitled to know essential information and policies including:
- In what circumstances are inmates and young people being tested for COVID-19?
- In what circumstances are staff being tested for COVID-19?
- What arrangements are being made in relation to vulnerable members of the prison population: the elderly, those with pre-existing conditions, Aboriginal and Torres Strait Islander people?
- What are the arrangements for isolating any inmates who test positive for COVID-19, including the length of time they are to be isolated and in what conditions?
- How are accused persons who are arriving from overseas (such as those who may have been arrested for importing drugs) being isolated?
- the impact on inmates who share a wing, pod or gaol with an inmate who tests positive for COVID-19 and what arrangements or changes will occur to the conditions of their incarceration?
- the number of beds at Long Bay hospital that are available for treating any inmate or young person testing positive who requires hospital care;
- what alternative arrangements would be available if Long Bay hospital reached capacity?
- the arrangements, if any, for any inmates who are released in relation to testing and, if positive, whether inmates are provided transport and transmission to appropriate health services?
- the availability or cancellation of rehabilitation programs as a result of the risk posed by COVID-19.
We urge NSW Corrective Services and NSW Justice Health to publish this information on their websites to ensure accuracy.
As at 22 March 2020, NSW Corrective Services’ website indicated that “We have no confirmed cases of the virus within any of our correctional centres”. On 20 March 2020, The Sydney Morning Herald reported “two staff members at a high-security mental health facility in Sydney's south have been diagnosed with COVID-19 and dozens of staff and patients have been placed into isolation”. We urge NSW Corrective Services and NSW Justice Health to publish accurate information on their websites. It is understood that the forensic hospital is under the jurisdiction of NSW Justice Health, however, sections 55 and 56 of the Mental Health (Forensic Provisions) Act provide for transfer of persons between the hospital and correctional centres. For this reason, we urge disclosure on the NSW Corrective Services website. It should also be made clear whether there has been any potential transmission by Justice Health staff spending time in either the hospital or a correctional centre or whether any forensic patients have been transferred to correctional centres within the relevant time period.
Unprecedented times require the courage to make decisions which are consistent with evidence and the wellbeing of the whole community. We call on the government to urgently reduce the number of people incarcerated to lessen public health risks. We call on NSW Corrective Services and NSW Justice Health to provide clear and detailed information to the public.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Rebecca McMahon & Eugene Schofield-Georgeson
Convenors, Criminal Justice Action Group
Australia’s recent bushfire season of unprecedented scale, foreseen years ago by climate scientists as a likely result of a warming planet, lays bare the urgent need for climate justice. With this context in mind, NSWCCL wishes to affirm its support for the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”), to be introduced to Parliament by the independent MP for Warringah Zali Steggall.
Modelled on similar legislation passed by several developed nations, including the UK, Germany and France, the Bill attempts to provide policy certainty, transparency and accountability in relation to emissions reduction targets and climate adaptation. Amongst other innovations, the Bill:
- creates an independent Climate Change Commission (CCC) to help prepare emissions reduction plans and budgets, report on progress, conduct climate change risk assessments, and advise the government in relation to climate adaptation;
- sets a statutory emissions reduction target of zero net emissions by 2050 which cannot be varied without the consent of the CCC;
- institutes five-yearly whole-of-economy emissions budgets; and
- establishes a number of guiding principles which administrative decision-makers, as well as the CCC itself, must consider.
Despite the rain, NSWCCL Committee member, Lydia Shelly (pictured) spoke at Sydney's No Right to Discriminate: Religious Discrimination Bill protest rally this month. Lydia spoke to the CCL position on the bill, how religious groups have been co-opted, and the implications of the proposed bill.
CCL supports the need for a law against religious discrimination, but this Bill subverts key principles as to the ‘indivisibility and equality’ of human rights. It grossly over-privileges religious rights to the detriment of other rights. It seriously weakens existing anti-discrimination laws. It will cause harm to many groups and generate dissension and ill-will in our community.
It is CCL's view that the Government must withdraw this Bill and start again with a better and more cohesive process. More detail on CCL position HERE.
*Lydia Shelly is a lawyer and student in terrorism and security studies, and a Committee Member, NSW Council for Civil Liberties.
Here we share the speech Lydia gave at the rally.
NSWCCL condemns the premature closure of the inquiry into potentially illegal strip searches conducted on minors by police in NSW. The Guardian has revealed that the Law Enforcement Conduct Commission (LECC) confirmed it will no longer hold further hearings as part of the inquiry, which last year uncovered evidence of the widespread misuse of strip search powers by police in NSW.
The LECC had been due to hold more public hearings in either late January or February into the psychological impacts of strip searching on minors, but in a brief statement a spokeswoman for the LECC said it now had “no intention to call further evidence at this stage”.
The decision to cut the inquiry short comes just a month after the NSW government announced it would not renew the term of its chief commissioner, Michael Adams QC, which prompted accusations his removal was a “cynical” attempt to cut the inquiry short.
Held in October and December, the public hearings revealed a disturbing pattern of police misusing strip search powers on minors, as well as evidence that many police do not understand the laws governing strip searches. Police data referenced at the inquiry shows that routinely, strip searches are not being used only in 'serious and urgent circumstances', indicating widespread contravention of the law.
Evidence tabled shows that when 30 teenagers were strip searched at an underage Sydney music festival in February 2019, just five had an appropriate adult present. Presence of a parent/guardian is mandatory under the Law Enforcement (Powers and Responsibilities) Act for anyone aged between 10 and 18.
In one case a 16-year-old girl was fearful and in tears after she was forced to strip naked and squat in front of a police officer who then “looked underneath” her at the Splendour in the Grass festival in 2018.
NSW Council for Civil Liberties Vice-President, Dr Eugene Schofield-Georgeson states, "This inquiry was key to uncovering processes and investigating questionable practices. Reform is needed, both internal police practice, as well as legislative reform. Clarification of strip search powers in both the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and in regulations, was recommended by UNSW law academics Dr Michael Grewcock and Dr Vicki Sentas in Rethinking Strip Searches by NSW Police. It's important people, particularly minors, are aware of their rights when asked by police to submit to a strip search."
This issue is "about changing the conversation about policing in NSW," explains Redfern Legal Centre head of police accountability Samantha Lee. "It's a conversation that talks about minimising harms, securing dignity and still keeping the community safe."
Strip search practices raise major issues of police accountability. Strip searches are on the rise in New South Wales, with searches increasing by 46.8 percent over four years and on average, in 64 percent of cases, nothing unlawful is being found. Find out more in Rethinking Strip Searches by NSW Police, commissioned by Redfern Legal Centre and published by UNSW Law.
- NSWCCL President, Nick Cowdery AO QC
NSWCCL, Redfern Legal Centre and 2SER are collaborating on Strip searches and the law: Project Podcast. The episodes will cover issues such as what to do if you, your family or friends are approached by police and or drug detection dogs, and what powers police have to search, seize, detain and arrest.
Will you help us make Project Podcast happen? We are looking for community support to produce the episodes. For an organisation like ours that relies on members and supporters to further our work, every dollar counts.
NSWCCL has made a submission on the Government's second exposure draft of the Religious Discrimination Bill 2019. This follows our highly critical, but nonetheless, slightly hopeful submission on the first exposure draft of the Bill in October last year. We had been hopeful that the many problems civil liberties and human rights groups had identified in the Bill might be addressed, so that this second version would provide much needed protections against religious discrimination -particularly for minority religions - which are appropriately balanced with the rights of other groups in the Australian community.
The draft Bill's up-front objectives are spot-on: to eliminate discrimination on the grounds of religious belief; to ensure everyone has the same rights to equality before the law and that people can make statements of religious belief- all subject to reasonable restrictions. Most significantly they affirm the 'indivisibility and universality of human rights and their equal status in international law.' (Clause 3)
However the new draft Bill fails to deliver on these objectives - it dangerously expands the over-privileging of religious rights in relation to other rights, weakens existing protections available for other groups under current state and federal anti-discrimination laws. If it becomes law, this Bill will increase discrimination against and harm for many groups in the Australian community.
It seems clear that the objects of the draft Bill have been distorted by the insertion of numerous provisions for the sole reason of conceding to the demands of major religious groups for both exceptionally broad rights and protections from discrimination by others and an extraordinary range of exemptions and exceptions amounting to an extensive right to discriminate against others with legal impunity.
In summary, NSWCCL considers this second exposure draft Bill privileges religious rights to the detriment of other rights and weakens existing anti-discrimination laws much more seriously than did the first exposure draft. We are firmly of the belief that the Government must withdraw the Bill and start again with a better and more cohesive process.
Freedom of speech and protest are fundamental to a democratic political process. NSWCCL affirms support for urgent action, at the federal and state levels, to combat the severe, climate change threat.
On January 31st, we joined climate defenders at the Downing Centre before they headed into court. They were arrested in December at Kirribilli House while protesting in favour of climate action. Those arrested included Greens MP David Shoebridge. He was charged with disobeying a police direction to move on.
NSWCCL Secretary Michelle Falstein spoke to those gathered saying that citizens of this state should not fear the police when exercising their constitutional rights and that, change in the policy of intimidation by the NSW police force, is clearly required.
David Shoebridge told the crowd, "Most of us will be pleading not guilty today because we refuse to bow to police and government pressure - they cannot police their way out of the climate crisis".
We will keep you updated as to the date fixed for hearing of the charges.