A Human Rights Bill for NSW

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1 Your rights should be better protected. We need a Human Rights Bill for NSW! Australia is the only western liberal democracy 1 that does not have a constitutional framework for human rights protection for its citizens. There are many current and past cases that justify the need for a human rights framework that can protect vulnerable citizens against state and federal laws that are inadequate in terms of human rights. Many human rights are protected in our legal system in many different places. We need a consolidated Human Rights Bill that will be robust and that will protect vulnerable people. Context From December 2008 to June 2009 the then government conducted a seven month nationwide public consultation into a proposed Human Rights Act for Australia. The purpose of this Act was to implement legislation to formally safeguard the rights and freedoms of all Australians. 35,014 submissions were made, of which 29,153 (83%) were in favour of a Human Rights Act. The government did not, however, adopt the recommendations of the consultation and did not implement a Human Rights Act for Australia. The main arguments against an Act were that our parliamentary democracy already provides us with adequate protections and that such an Act would transfer responsibility from democratic parliaments to an unelected judiciary. Both of these arguments are erroneous. TIMELINE Oct Dec Train AIA NSW action groups Jan-March NSW action groups Lobby State Election candidates to commit to proposing a Human Rights Bill for NSW in parliament March NSW State Election Post March AIA NSW action groups continue the conversation with NSW parliamentarians to push for a Human Rights Bill for NSW The case against a Human Rights Act was weak, but it won. We have broken down these arguments in the Mythbuster section. How is a new campaign more likely to be successful? Situations that make people vulnerable Momentum and timing Experience There are several laws in NSW that increase the power of authorities and that place people in vulnerable situations. Four of these laws are added in the Case Studies section at the end of this toolkit. We are in an unusual situation where the ALP is running as opposition in the NSW State election in March 2015 and in the Federal election of Human rights charters exist in two other Australian states/territories: Victoria and the ACT. A 2011 review of the VIC Charter showed that it has been very successful 1 This was verified in the AIA submission to the Human Rights Act consultation in

2 NSW has a sketchy history with human rights protections. With the upcoming election in March 2015 we want to ask the political candidates to add a Human Rights Bill (HRB) to their party platform and to pursue its development in parliament post the March election. Amnesty NSW has 55 action groups, over 150,000 supporters and members and represents a significant portion of the electorate. In Newtown, Amnesty supporters and members number 7,500 people. That s 10% of the electorate in a new seat. You can find out how many Amnesty supporters live in your area by contacting the Action Centre. Role of the Newtown group As an AIA NSW Action Group, the Newtown group is committed to promoting human rights locally and around the world. Many actions focus on awareness of human rights issues in countries with more serious concerns than in Australia, but we also focus on the domestic context. The Newtown group wishes to reignite public discussions about the protection of human rights in Australia. This purpose, we think, will be better served by promoting the issue of human rights in political and public debates, and encouraging politicians to commit to a discussion of a law in NSW. WHAT DOES AN Human Rights Bill MEAN FOR YOU? There are many laws that allow for the infringement of human rights in NSW. An HRA means that people in NSW will be able to refer to a single legislative instrument for information regarding their basic human rights. Human rights are protected in various pieces of legislation, however they are not comprehensive and they rely on the judgement and goodwill of authority figures. Currently the law does not protect all fundamental rights as prescribed in the Universal Declaration of Human Rights (UDHR) and other core treaties that Australia is signatory to. Some good examples include: FORM OF A HUMAN RIGHTSPROTECTION During federal discussions about the form of human rights protection, two were proposed: Legislation Constitutional entrenchment Many recommended that the legislation option had a greater chance of gaining support as it wouldn t set certain rights in stone. An act of parliament could more readily be amended to reflect democratic will.! we don t have a general piece of legislation that provides privacy protection for citizens;! freedom of assembly and association, as set out in Article 12 of the (UDHR), are not explicitly protected. NSW s bikie laws unnecessarily contravene these rights;! there is no law in Australia to protect the reproductive rights of women with disabilities. There are still cases of involuntary non-therapeutic sterilisation of women and girls with disabilities. Four case studies attached to the end of this toolkit demonstrate a few of the current laws that do or have the potential to infringe on the human rights of citizens. These case studies are move-on laws, mandatory sentencing laws, Bikie laws and Zoe s Law. A Human Rights Act for NSW is relevant to every citizen in the State because laws that do not meet the provisions to protect human rights have to be modified to meet the criteria of this bill. We are asking from politicians not just their individual and personal support of a Human Rights Bill for NSW, but a party platform that reinforces their commitment to pass a law that protects in NSW. With such a law in place, all subsequent laws that are introduced in parliament would have to first be scrutinised for any potential infringements on the human rights of citizens of NSW. 2

3 MYTHBUSTER 3

4 HOW TO CAMPAIGN There will be two phases in this campaign. 1. Preparation of AIA NSW action groups. The Newtown group will: - provide the toolkit and the information pack - host a launch event in October - provide training for NSW action groups 2. An outreach phase, which will involve NSW action groups contacting their State Election candidates directly. The Newtown group will: - Provide training and direction in how to contact local candidates and what questions to pose to them for direction. Two main questions will be asked: o o where do you stand in regards to a Human Rights Bill/Act for NSW? What will you do to put this ask on your party agenda? We will hold a threaded conversation through the Discussion Board of the AIA Activist Portal. This will give groups, members and supporters an opportunity to ask questions, raise concerns and share experiences. Group preparation Groups can dedicate a part of their meeting to knowing the arguments towards a Human Rights Bill, and knowing the details of the chosen option (statutory bill). During meetings, time can be dedicated to a debate about your views on the subject. Groups may want to hold community events to further rally support and ask for a Human Rights Bill. Consider which material will you use in local campaigning (films / books / speakers and so on). Campaigning There are three aspects to consider in the outreach phase: Convincing new audiences of the need of a Human Rights Bill/Act Providing further information to audiences that may already be convinced. Engaging State election candidates to express their support of a Human Rights Bill Ideas for events: before and during the political campaign 1. Organise debates in your community. 2. Engage politicians and/or human rights activists to participate in your debates. 3. Think about cases in your community that may be relevant. 4. Prepare a petition to your local candidates and ask attendees to sign it. The Action Centre will need to see and approve your petition before you can take it to the public. 5. Go to local events and ask people to sign the petition in support of a Human Rights Bill/Act. Engage in debate with them. 6. Hold an exhibition at your local library or community hall. Interactive exhibitions are a great way to collect actions! 4

5 During the candidates political campaign Call your candidates and organise a meeting time with them for the delivery of the petitions. Find out from the Action Centre how many members and supporters live in your postcode and leverage this information to get a meeting. Another option is to invite the candidates to a big debate during which they can express their views and their support of a Human Rights Bill. This can be organised after a screening or during an exhibition event. Tips for your event Promoting your event Check the activist portal for template flyers and posters you can use. To have your event posted online complete an event proposal form. Utilise your social media skills! Create a Facebook event to promote the event and keep updating it with information regarding engaged election candidates. Promotional materials such as flyers and posters should: Have all the essentials who, what, when, where and why. Highlight the interesting parts of your event, such as a high profile speaker or partner organisation. Reinforce that by coming to an event, attendees are part of a global movement working towards change and that their involvement will make a difference. 5

6 CASE STUDIES MOVE-ON LAWS Description Section 28F of the Summary Offences Act 1988 gives police the power to give directions to people in public places. At its introduction in 1998, it was promoted as an "anti-gang" measure, to allow police to disperse people acting in a disruptive manner before the situation got out of hand. After the Cronulla riots in December 2005, the NSW Parliament enacted emergency laws giving police special powers to deal with large-scale public disorder. To use the emergency powers, the Commissioner of Police (or a Deputy or Assistant Commissioner) must issue an authorisation for a certain target area. The authorisation can only last for 48 hours and a target area could be a few blocks, a whole suburb or maybe an even larger area. These laws are about the power to control who and what is visible in public space and the circumstances in which they appear. Future This law was recently developed in VIC and TAS and will impinge upon people s rights to peaceful and legitimate protest. Historical context 1 July 1998: The power to issue move-on directions was given to police 1992: a report by the NSW Ombudsman highlighted problems with the way the move-on powers were being used by the police 2001: the move-on power was expanded to allow police to give directions to suspected drug dealers and purchasers December 2005: an amendment in response to emergency public disorder (Cronulla riots) gave police the power to break up groups 2007: police were given powers to move on people who were intoxicated and behaving in a disorderly manner 2011: amendments were made to make it easier for police to give directions, and to introduce a new offence of being intoxicated and disorderly in a public place after being given a direction Conflicts with Human Rights Some of the problems highlighted by the NSW Ombudsman regarding how move-on powers were being used by the police are instructive: (a) A very high percentage of all directions were issued to people under 18 (48%), and to Aboriginal and Torres Strait Islander people (22%); (b) Directions were given for a variety of reasons, including that people were begging, intoxicated, in a high crime area, or merely had no reason to be there. In the Ombudsman's opinion, about 50% of directions were issued without a valid reason; 6

7 (c) Young people hanging about in groups, or street sex workers, were often thought to be intimidating or likely to cause fear by their mere presence; (d) Young people and Aboriginal and Torres Strait Islander people are more likely to be moved on than other community members; (e) Of the move-on directions issued over the one year review period, 22% were issued to Aboriginal and Torres Strait Islander people (11 times more than that of non-indigenous people) and just over half were issued to young people aged 14 to 19 years; (f) The move-on power was being used to deal with behaviours associated with homelessness, such as begging and sleeping out; and (g) As the use of the move-on power increased in frequency, so did the number of charges for public space offences. Under current proposed amendment to the Summary Offences Act (NSW), it would be illegal for individuals and groups to protest in public spaces, if their presence blocks another individual or group from conducting their business Example situation Protection expected from a Human Rights Act - In the ACT, where there is a Human Rights Act in place, move-on powers can only be used by police when a person has engaged, or is likely to engage, in violent conduct in a public place. - In SA, WA and TAS, a move-on direction can be given in circumstances where an offence has been or is likely to be committed, or where the safety of a person in the vicinity is threatened. It can also be used if a person is causing an obstruction and where a breach of the peace is likely to occur. - NSW, NT and QLD are seen as the most permissive: a move-on direction can be issued in an extremely wide range of circumstances, including where a person s mere presence could cause anxiety to another person, or interfere with another s reasonable enjoyment of the space. 7

8 MANDATORY SENTENCING In Australia, criminal laws prescribe a maximum penalty for an offence, however they generally do not prescribe minimum penalty. Therefore each case relies on the discretion of a judge to issue an appropriate sentence. Mandatory sentencing laws require a court to impose a minimum sentence of imprisonment for specific crimes. Following an increase in media coverage of alcohol and drug induced violence occasioning in death, the government introduced new mandatory sentencing laws to address alcohol related violence. The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 applies to a person who is guilty of assault resulting in death. If the convicted person was under the influence of an illicit substance, they are subjected to a minimum mandatory sentence of eight years imprisonment. Further proposed amendments to the Act will introduce minimum mandatory imprisonment of two to five years for a person guilty of assaults resulting in injury while under the influence of alcohol. 2R%20Crimes%20and%20Liquor.pdf Historical context " In the 1990s concerns were raised regarding the inconsistencies and leniency in sentencing for a range of offences. Therefore guideline sentences were introduced for specific offences. " 1999: A statutory framework for issuing guideline sentences was enacted in NSW. " 2003: The NSW government introduced a statutory Standard Non-Parole Period (SNPP) scheme for serious offences, prescribed in the Crimes (Sentencing Procedure) Act " 2011: The government introduced a mandatory sentence of life imprisonment for the murder of an on duty police officer. " 2011: After evaluating the case Muldrock v The Queen, the High Court raised concerns regarding the suitability of the SNPP approach. " 2013: The NSW government amended the Crimes (Sentencing Procedure) Act 1999 to ensure that the SNPP will be a matter to be considered by the courts to determine the appropriate sentence. " 2013: A case that involved an alcohol fuelled, fatal one-punch assault, concluded with the acceptance of the offenders plea of manslaughter. The offender was sentenced to six years of imprisonment with a SNPP of four years. This was considered to be a lenient sentence by the community. 2013: The NSW Premier introduced a mandatory minimum sentence of eight years imprisonment for violence resulting in death while intoxicated. Future The NSW government has proposed mandatory detention for a range of assaults committed by an intoxicated individual including: " Assault resulting in bodily harm with a minimum sentence of two years imprisonment " Assault of a police officer with a minimum sentence of two years imprisonment " Reckless wounding with a minimum sentence of three years imprisonment 8

9 " Reckless grievous bodily harm with a minimum sentence of four years imprisonment " Affray with a minimum sentence of four years imprisonment " Sexual assault with a minimum sentence of five years imprisonment ory+sentencing+laws.pdf Government-Fact-sheet.pdf Conflicts with Human Rights Mandatory sentencing is in contravention of the 1976 International Covenant on Civil and Political Rights (ICCPR). Article 14(5) of the ICCPR states that anyone convicted of a crime has the right to have their sentence reviewed by higher courts. However, a legislated minimum sentencie prevents the accused from having their sentence reviewed. This is of particular concern as mandatory minimum sentencing prevents taking the circumstances of the offender or offence into account, as judicial discretion is not valid. One punishment does not fit all, as each case has its unique differences, which may not warrant such a severe penalty. Another effect of removing the exercise of judicial discretion is that it undermines the independence of the judiciary. Example situation Under the proposed laws, an individual who is guilty of violent behaviour will be sentenced to imprisonment for a minimum of two years, if they have more than 0.15g of alcohol in 100mL of blood. This law doesn t allow for discretion to be exercised by the courts on the specific circumstances of the case. This law would fail an individual who felt that they were fulfilling their moral duty by intervening in a bar conflict. Intervention in such conflicts often leads to violent altercations. If the intervening individual inflicts damage, they are likely to face mandatory imprisonment due to the presence of alcohol in their system. Although the intervention may have been motivated by the desire to protect a vulnerable party, the circumstances of the case become irrelevant during sentencing as a minimum sentence will be prescribed by law. Protection anticipated from a Human Rights Act Under a NSW Human Rights Act it is anticipated that Article 14(5) of the ICCPR will be legislated to ensure that a higher tribunal can review a mandatory sentence, in accordance with the law. The Victorian Charter of Human Rights and Responsibilities Act 2006 has protections for persons convicted of an offence which should be considered. In addition to incorporating Article 14(5) of the ICCPR into the Charter, they have also included the following in Section 27: 27 Retrospective criminal laws 1. A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in. 2. A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed. 3. If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty. 4. Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done. 9

10 BIKIE LAWS In 2009 the NSW government introduced legislation to control the behaviour of bikie gangs. The Crimes (Criminal Organisations Control) Act 2012 is part of a suite of laws introduced in other states aimed at addressing the actions of bikie gangs. Historical context April 2009: the NSW Government introduced legislation to control the behaviour of bikie gangs. This followed an incident at Sydney airport in which Anthony Zervas was killed. 3 April: The Crimes (Crimes Organisations Control) Bill 2009 (NSW) was passed. June 2009: The High Court ruled that this legislation was invalid. The Supreme Court of NSW had been asked by police to issue a declaration under the Act outlawing the Hells Angels motorcycle club in NSW. A member of the club, Derek Wainohu, applied to have the law declared invalid on 23 June : The Crimes (Criminal Organisations Control) Act was repealed in The NSW Parliament passed a Bill which repealed the 2009 Act and established a new control order. The re-enacted scheme still relied upon eligible judges to make declarations; however new section 13(2) required eligible judges to give reasons when making or revoking a declaration. It was otherwise broadly similar to that contained within the 2009 Act, including in relation to the consequences of making an interim control order or a control order, which are set out in Division 3 of Part 3 of the Act. 26 August 2013: Bikie gangs were declared criminal organisations in NSW as parliament passed anti-gang legislation. 2013: The Crimes (Criminal Organisations Control) Act 2012 (the 2012 Act) was amended to mirror the provisions of the Queensland legislation. The validity of this law had been upheld by the High Court. The 2012 Act now provides that the Police Commissioner may apply to the Supreme Court of NSW for a declaration that a particular organisation is a criminal organisation. Once such a declaration has been made the Commissioner may apply to the Supreme Court for control orders to be made regarding people that the Court is satisfied are members of a declared organisation. The 2013 amendments top the 2012 Act also provided for the recognition of declarations and orders made in other states. Conflicts with Human Rights The problem with the legislation is that, while it is supposedly directed at organisations said to be engaged in criminal activity, the terms used in the legislation are broad and ambiguous enough to allow for virtually anyone to fall within the scope of the legislation. The 2012 Act also makes the association between members of a declared organisation a criminal offence. It extends the scope of association to being in company with, or communicating with by any means (including by post, facsimile, telephone, or any other form of electronic communication). Importantly, it could have the effect of preventing family members from communicating with each other. The Tattoo Parlours Act (2012) and the Restrictions on Entry to Licensed Premises have meant that the 2012 Act establishes a scheme for the licensing and regulation of tattooing businesses and artists. Furthermore, in several areas of NSW, members of motorcycle clubs are prohibited from entering licensed premises if they wearing the insignia of a bikie club. Twenty-two bikie gangs have been named for exclusion. Protection expected from a Human Rights Bill 10

11 Under a NSW Human Rights Bill it is expected that the language used in a bill protecting the State against gang violence and crime would be explicit and detailed, not ambiguous and potentially including any form of collective gathering that is identified by a colour, a name, or an insignia. 11

12 ZOE S LAW & FOETAL PARENTHOOD Description This is a proposal to amend the Crimes act 1900 so as to criminalise offences to a foetus of at least 20 weeks ("unborn child"). The law redefines the scope of "Grievous bodily harm" to include unborn children. However, any offence or destruction of the foetus performed in a medical context or with consent from the mother is not considered a crime. Historical context 2009: Zoe, Brodie Donegan's 8 month old foetus is killed in an accident caused by a drug affected driver. The driver is convicted for harming the mother, but no further sentence is applied for the killing of the foetus. Nov 2013: the law passes in the NSW lower house Mar 2014: law delayed in parliament Future The law's supporters and proponents are expecting to gain more support from MPs. This law currently does not conflicts with Human Rights. However there is a potential Conflicts with Human Rights In its current form the proposal is not an offence to human rights. However, there is concern that regarding a foetus equal to a born human being under state or federal law, could lead to criminalising the mother's actions against their foetuses. This would be an offence to the women's rights to their bodies. This act will make it more difficult for an amendment of the Crimes Act to remove abortion as a crime. Example situation The human rights bill can provide a legal framework to protect women's health and reproductive rights. Any further attempts to criminalise abortion may be stopped or made more difficult by the presence of a Human Rights Bill. Additionally, without appropriate legal protections, there is a potential for women to be charged under the Crimes Act for negligence, grievous bodily harm, or manslaughter etc if their daily actions or lifestyle causes a woman to miscarry. 12