Liberty Victoria Update August 2023

Dear members and supporters,

I’m writing to thank you for your continuing support of Liberty Victoria, and to update you about our recent work. 
 

Sophie Trevitt

First though, we were very sad to hear of the passing of Sophie Trevitt, our Voltaire Human Rights Award winner for 2023. Our thoughts are with her partner Tom, and her family and friends. Senator Larissa Waters gave a very moving tribute to Sophie, which you can watch here. 

You can also listen to Sophie’s powerful interview with Anna Vidot from ABC Canberra here, and read Sophie’s recent articles with the Guardian here, and Riotact here. She has also written a very moving account of her time in the Northern Territory, “The road to hell, where children are left to fall through the cracks”, which is here.

Sophie’s nomination for the Voltaire Award was incredibly well supported. True to her selfless advocacy, when accepting the Award she knew she was seriously unwell but wanted to use it to raise attention to causes she cared about, including the need to #RaiseTheAge of criminal responsibility. We will do our best to continue her work in that space, and along with the rest of the human rights community we will continue to try to live up to the example set by Sophie.
 

Bail Reform

We’ve been very disappointed to learn that the Victorian Government is intending to push back bail reform for at least 12 months. We’ve made a statement here.  

We know that Victoria’s bail laws are broken; as Coroner McGregor found during the Veronica Nelson inquest, they breach human rights and have been a “complete, unmitigated disaster”. We know they have a disproportionate impact on First Nations Peoples and women, including those accused of low-level offending. We also know how dangerous prisons are for First Peoples, and it’s clear that we still haven’t learned the lessons from the Royal Commission into Aboriginal Deaths in Custody, including that imprisonment must be a sanction of last resort. It is also concerning to read reports that the unacceptable risk test may be expanded. For those interested, Sarah Schwartz from VALS and I were interviewed on the Victorian bail laws earlier this year on Radio National’s Law Report, available here. 
 

Human Rights Framework

We have made a comprehensive submission to the Federal Inquiry into Australia’s Human Rights Framework, available here.  I’m also pleased to say that we’ve been invited to give evidence to the Inquiry. 

We’re particularly well placed in Victoria, given our experience with the Charter of Human Rights and Responsibilities, to explain how a Federal Human Rights Act would improve our democracy while preserving parliamentary sovereignty. As we note in our submission, it would see us join comparable jurisdictions with a rich history of carefully evolved and principled human rights jurisprudence. Perhaps most importantly, it would address the continuing erosion of human rights standards and protections in Australia. Thanks to all those who assisted us to prepare our submission.
 

Consent Inquiry

Together with Isabelle Skaburskis, I gave evidence to the Federal Inquiry into Current and Proposed Sexual Consent Laws in Australia. At Liberty Victoria we support improved, properly funded and wide-spread education on consent, underpinned by the affirmative model. As recommended by the VLRC, we also support restorative justice pathways for suitable cases. Our submission to the Inquiry is here, where we detail the significant reforms to the law of consent in Victoria over the past two decades (including now having an objective test for reasonable belief in consent, making self-induced intoxication irrelevant, mandating the fact-finder to consider what steps, if any, were taken by the accused person to ascertain consent, directing that a person does not consent if they do not say or do anything to indicate consent, and that consent can be withdrawn at any time). These reforms have been underpinned by an affirmative model of consent. 

While we have supported many reforms, including most recently Parliament making it clear that ‘stealthing’ is a criminal offence, like the Criminal Bar Association we are concerned about the operation of the new affirmative consent deeming provision (s 36A(2) of the Crimes Act 1958). In many cases the practical effect of that provision will be to oblige an accused person to give evidence at their trial. We know this will disproportionately affect children and young people (the cohort most commonly charged with this kind of offending), with young offenders exposed to mandatory sentencing provisions (and then the criminogenic effects of imprisonment) should they be found guilty. It is also concerning that these provisions are now in effect despite very little public knowledge or education.

It is fundamental that reforms to the criminal law, in seeking to increase conviction rates, do not diminish the right to silence and the presumption of innocence. We have seen in Victoria how some reforms to the prosecution of sexual offences have affected all criminal proceedings, including arguably the diminution of the criminal standard of proof through new jury directions to be given at the outset of all trials.  
 

Prohibition of Hate Symbols 

We have made a submission to the Federal Parliamentary Joint Committee on Intelligence and Security (PJCIS) Review of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth), which you can read here. We join with many members of the Muslim community who have made submissions on this Bill and noted their serious concerns with the proposed prohibition of the public display of the Islamic State (IS) flag. The Bill would prohibit the public display of anything that “so nearly resembles” the IS flag that it could be confused or mistaken with it. That is deeply problematic when one considers that the IS Flag prominently displays the Shahada, a central tenet of the Islamic Faith, in Arabic text. Indeed the AFP submission to the Inquiry suggests that the jihadist flag would be captured by the ban, which is literally just the Shahada (in stylised Arabic text) on a black background. There is no demonstrated need for this prohibition, and if enacted it will inevitably lead to the stigmatisation and over-policing of the Muslim Community.

The Bill also seeks to prohibit the public display of two Nazi symbols (the Hakenkreuz and the double-sig rune), which we have previously opposed given that any ban will be ineffective in light of the endless adaptability of such icons, and given how far-right extremists will seek to use any controversy and litigation to raise their profile. We agree with Lydia Khalil, author of “Rise of the Extreme Right”, that this will lead to an endless and ultimately futile “whack-a-mole” approach to prohibition. We have previously given evidence on this issue here (when the Opposition introduced similar legislation). 

It should be noted that there are other concerning aspects of the Bill in relation to terrorism offence powers, including the expansion of criminal offences and the abolition of sun-setting provisions. 
 

Robodebt Royal Commission

We have made a statement on the findings and recommendations of the Royal Commission into the Robodebt Scheme here. That includes endorsing the recommendations that Services Australia avoid language that “reinforces feelings of stigma and shame” associated with the provision of government benefits, that its processes be amended to consider vulnerability factors facing welfare payment recipients including their ability to meet compliance activities, improved training for frontline staff, and the creation of an advisory body comprised of people with lived experience. At the Royal Commission recommended, Services Australia must design its policies and processes so that the people they are meant to serve are central to its processes.

Liberty Victoria supports the Commissioner’s recommendation of implementing a debt recovery management policy that is ethical and transparent and imposing a six-year limit on debt recovery. The report has called for a comprehensive, consistent legislative framework for government services for automated debt collection processes including a statutory body to monitor and audit automated decision-making processes. The Robodebt scheme eroded merits review and due process rights. It is vital that the Government establish clear pathways for review and enable the algorithms and methodologies to be subjected to public and expert scrutiny.

Liberty Victoria supports the need to increase social security payments: the Report notes that “with financial security comes the dignity to which social security recipients are entitled and to which the Scheme was so damaging.” Liberty Victoria continues to strongly advocate for a properly functioning social security system — that is, a system which is available, adequate, and accessible to all without discrimination— to ensure that all Australians have access to the basic necessities of life.

Congratulations to all those who fought so hard to bring the injustices of Robodebt to light, including whistle-blowers, the families of those vulnerable people who have tragically passed away, and Victoria Legal Aid. For those interested, journalist Rick Morton has published an excellent five-part story for the 7am Podcast on Robodebt, which ran from 10-14 July 2023 and is available here.
 

Continuing Detention Orders

Together with the New South Wales Council for Civil Liberties (NSWCCL) we have made a submission to the PJCIS Review of Post-Sentence Terrorism Orders under Division 105A of the Criminal Code Act 1995 (Cth). You can read it here. The risk assessment tools underpinning the making of Continuing Detention Orders (CDOs) – which are extraordinary in allowing for post-sentence detention – are deeply flawed, having no empirical validation. This means that the regime necessarily subjects people to arbitrary detention. We agree with the Independent National Security Legislation Monitor (INSLM) that the CDO regime should be abolished. 
 

Lawyers as Human Sources

We are strongly opposed to the Human Source Management Act 2023 (Vic). We are committed to its repeal.  We are also deeply concerned by the closure of the Office of the Special Investigator. We have made a statement here. 

Lawyers should never be placed in the position of covertly informing against their clients. To allow that to occur, even with oversight and only in exceptional circumstances, is likely to result in lawyers being targeted as informants and placed in conflict with their clients, and may result in accused people being inadequately represented and to convictions being overturned on appeal.

The Act was not necessary to prevent the risk of imminent harm. There is already an ethical rule where, if a client threatens the safety of any person and a lawyer believes on reasonable grounds that there is a risk to any person’s safety, the lawyer may advise the police or other appropriate authorities.

The Act does something very different. It creates a legislatively endorsed pathway for intelligence gathering. This will erode trust and confidence in the legal profession as a whole and potentially expose lawyers to harm. While legislative safeguards are important, there are inadequate. 
 

The Voice

Our statement in support of the Voice is here. We are all concerned by recent polling (although the campaigns are yet to begin in earnest), and by some of the divisive misinformation being spread by elements of the ‘No’ campaign. We know that a constitutionally enshrined First Nations Voice will not be a ‘Third Chamber’ of Parliament. We do know, however, that when First Peoples have a say on the things that affect them, it results in better policies and better outcomes. 

There is an excellent resource debunking myths on the Voice by Castan Centre for Human Rights Law members, Dr Katie O’Bryan and Professor Paula Gerber, available here.

We also endorse the excellent statement on the Voice by the Criminal Bar Association.
 

Koori Court Event

For those who missed our Wheeler Centre event on the Koori Court during NAIDOC Week, “Justice, Elders and Culture in the Koori Court”, you can watch it online here. Thanks to MC Amanda Dunstall from VALS, the panellists Her Honour Magistrate Falla, Uncle Walter Harrison and Terrie Stewart, and the fantastic team at the Wheeler Centre. It was a great discussion and an excellent resource for those interested in how the Koori Court works. 
 

Membership

As you can see, we’ve been very busy, but there is much more to be done. 

Liberty Victoria is a volunteer-based organisation that receives no government funding in order to remain completely independent. If you’d like to support our work, please consider joining or making a donation so that we can continue to protect and promote civil liberties and human rights. 

Also a reminder that our main annual fundraiser, the Voltaire Human Rights Awards, will be held at the Sofitel Melbourne on 10 November 2023, with tickets available here. We’ll have more to say about that soon.
 

Thanks again for your support of Liberty Victoria. 

Yours faithfully,

Michael Stanton
President
Liberty Victoria