The Australian Government has released the Privacy Amendment (Public Health Contact Information) Bill 2020 (COVIDSafe Bill) which will be considered by Parliament this week. The COVIDSafe Bill largely reproduces the biosecurity orders which made it possible to begin to download and operate the COVIDSafe App (App).
The NSW, Queensland and South Australian Councils for Civil Liberties, along with the Australian Council for Civil Liberties, support the introduction of effective digital contact tracing if it is underpinned by robust privacy and transparency legislation.
The joint statement has been sent to the Prime Minister, the Attorney General and Opposition Leader, along with all MPs and Senators.
In the statement we recommend that a number of issues should be considered by Parliament for incorporation into the Act – or for Government action - to more adequately protect the privacy of Australian citizens who have voluntarily participated in this tracking exercise.
The Sydney Morning Herald reported on the statement - 'The civil liberties groups want the government to change the design to ensure personal data is not stored on a central database, arguing this increases the danger from a single cyber attack.'
'More needs to be done to ensure that the app does not compromise data protection and thereby increase the risk of illegal and inappropriate use of data or surveillance of Australians.'
Read the full statement HERE.
Police officers who conducted strip searches of children hadn't been properly trained and didn't understand the law on what they were doing, a series of landmark watchdog reports has found.
The conduct of NSW Police officers in carrying out strip searches of teenagers at music festivals has been found to be unlawful in a series of landmark reports by the NSW Law Enforcement Conduct Commission.
The reports also criticised the use of police discretion in finding appropriate grounds to justify a strip search; and then the subsequent conduct of the strip search as it applies to people under the age of 18.
The NSW Law Enforcement Conduct Commission said police couldn't justify ordering people to strip naked on a general belief that some music festival patrons would conceal drugs.
NSWCCL Vice President, and convenor of CCL's Police Powers action group, Eugene Scofield-Georgeson, said the report confirms that strip searches of minors at festivals must end. 'These findings are further evidence for halting the practice of invasive police searches of children, led by drug dogs, at music festivals'.
The report comes only days from an announcement that police chief Mick Fuller is to receive an $87,000 pay rise at the height of the coronavirus pandemic, making him one of the state's highest paid public servants.
NSWCCL is crowdfunding for a podcast series, Strip Searches and the Law, that will address rights and privacy for festival goers, and those approached by drug dogs/police. Pre-production of the podcast has been postponed during the COVID-19 health emergency.
4th 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:
- The charge against Chris Breen to be dropped.
- The infringement notices be revoked.
- 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@example.com.
See this statement as a PDF
20th 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:
- 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
Michelle Falstein Secretary NSWCCL: Michelle.firstname.lastname@example.org
April 1, 2020
Mobile device tracking of COVID-19 infected persons
Prime Minister Scott Morrison has confirmed that the Commonwealth government is progressing with Singapore-style digital options for contact tracing: the identification, contacting and monitoring of those who may be infected with COVID-19, and their contacts. In addition, the Australian government has now launched a Coronavirus Australia app and WhatsApp group, to provide Australians with information, and advice, about the pandemic. The Coronavirus Australia app permits the voluntary registration of a person’s self-isolation but does not, currently, provide for contact tracing. At present, in Australia, contact tracing is conducted manually and directly with the affected person.
NSWCCL supports the appropriate and generalised use of aggregated, anonymised map data for tracking people’s movements; to assist health services and determine where to target critical medical resources. Contact tracing is essential. However, any collection or use of a person’s sensitive personal data for digital contact tracing must come with the imposition of strict limitations.
The move to monitor citizens’ movements may set a dangerous precedent. Contact tracing and the wider application of mobile device tracking would enable the Australian government to assemble a person’s location history into a single, searchable database. Mobile device tracking, in Australia, could involve tracking infected persons to ensure compliance with self-quarantine, as in Israel (see below). South Korean authorities publicly share details of the age, gender and location of persons infected with COVID-19, by mobile phone alert and on the government’s health website. Often that information is sufficient to identify the infected person.
NSWCCL calls for complete transparency from the Australian government of its development and use of any mobile device tracking technology in this emergency.Read more
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
Prime Minister Scott Morrison
Attorney General Christian Porter, Leader of the House
Leader Opposition Anthony Albanese
Shadow Attorney General Mark Dreyfus
President of the Senate Scott Ryan
Leader of the Government in the Senate Mathias Cormann
Leader of the Opposition in the Senate Penny Wong
Manager of Opposition Business in the House of Representatives Tony Bourke
Manager of Opposition Business in the Senate Katy Gallagher
NSW Premier Gladys Berejiklian
NSW Attorney General Mark Speakman
NSW Leader of the Opposition Jodi McKay
Copies to: All Federal MPs/Senators, all NSW MPs/MLCs
 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: email@example.com 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