Human Rights in NSW

For or Against a Charter of Rights in NSW
The issue of a Charter of Rights for NSW has been considered by a number of commentators.
1. Submission by the NSW Bar Association
2. The NSW Council for Civil Liberties
3. The NSW Parliament
4. The Attorney-General of the current NSW Labor Government, John HATZISTERGOS [http://www.parliament.nsw.gov.au/Prod/Parlment/Members.nsf/34979c89348b9b95ca2570de001dd2c0/99596198bbd639a74a256763000dac7a!OpenDocument] has expressed his disapproval for a NSW Bill of Rights and has provided a submission to the Australian Federal Government in which he argues against a Federal Bill of Rights [http://lawlink.nsw.gov.au/lawlink/Corporate/ll_corporate.nsf/vwFiles/220609_Sydney_Institute.pdf/$file/220609_Sydney_Institute.pdf]
NSW Legislative abuse of Human Rights
1.The NSW Victims Compensation Act.
Under this Act alleged victims can place applications for Victims Compensation to a Tribunal that does not notify the nominated defendant and usually decides applications on a paper hearing. This lack of proper evidential procedures and denial of natural justice to nominated defendants has already produced inconsistent judgments in the long-running John Marsden case. Further details can be found at;
2. The NSW Crimes (Serious Sex Offenders) Act.
Under this Act persons considered "Serious sex Offenders" can be detained in detention or placed under Continuous Supervision on the basis of prior convictions, psychometric risk assessments and reports by psychologists and psychiatrists. NSW Citizens can now be placed with serving inmates on the basis of future prediction of behavior rather than a criminal conviction. A number of academic commentaries and reports have been written which provide critical analysis of this act and similar acts in Queensland, Victoria and Western Australia
The following article argues that the schemes does not abuse human rights.
3. The NSW Crimes (Criminal Organizations Control)Act 2009.
The Act contains references to "eligible judges" who may make a declaration that an organization is a criminal organization (see sections 5 and 9 of the Act); the rules of evidence do not apply in hearings under this Act and evidence considered "confidential" can be heard in the absence of the defendant and their lawyers. Under S.13(2)"If an eligible Judge makes a declaration or decision under this Part, the eligible Judge is not required to provide any grounds or reasons for the declaration or decision (other than to a person conducting a review under section 39 if that person so requests)". Under s.14 the Court can make an Interim Control Order in the absence of and without notice to the person so affected.
A similar Act was passed by the South Australia Labor Government. The Act was challenged by the Finks Motorcycle Club in the South Australian Supreme Court where one of its sections was struck down [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2009/301.html?query=^totani]. The case is currently on appeal to the High Court of Australia (State of South Australia v Totani & Anor).
A number of academic articles have been written which provide critical analysis of this Act and its South Australian counterpart [http://www.law.usyd.edu.au/~criminology/Outlaw%20Motorcycle%20Gangs%20Law%20.pdf].
4. The NSW Commission for Children and Young Persons Act,1998 Part 7 Background screening [
In Part 7 of this Act NSW employers are required to report the names of persons who have had allegations of child abuse made against them to the Commission for Children and Young Persons. These names include persons who have not been convicted by a criminal court or who have not been charged with any criminal offenses.
Pursuant to s.39(1)"It is the duty of an employer to notify the Commission of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer, other than proceedings:
(a) in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur, or
(b) in which a finding is made that the allegations in respect of which the proceedings were brought were vexatious or misconceived."
Under the Act the Commission is required to keep a database of these names and provide details of the alleged child abuse to future employers upon demand. In reality this means that allegations which are not considered "vexatious", "misconceived" or "false" must be referred to the Commission and retained on the database.
In such cases the employer must conduct a "relevant employment proceeding" to determine the circumstances of the allegation and the necessity of referring the nominated defendant's name to the Commission. No guidelines are provided in the Act as to the procedures for the conduct of "relevant employment proceedings". The NSW Government has NOT provided a statutory means of appeal for persons whose names have been forwarded to the Commission for Children and Young People. Cases have already come before the NSW Supreme Court and the NSW Industrial Relations Commission which challenge the procedures used and in particular allege denial of natural justice. The NSW Industrial Commission has stated that it does not have the jurisdiction to withdraw the notification from the Commission, see para 74 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWIRComm/2003/145.html?query=%22relevant%20disciplinary%20proceedings%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%22#disp1].
As these situations often come down to one person's word against another, it is often not possible to conclude that the allegation "did not occur", was "vexatious or misconceived". The NSW Department of Education and Training has stated that persons against whom such allegations have been made but either did not proceed to the criminal courts or were found not guilty cannot be employed as "the risk is too great" (taken from the Judgment of the Full Bench of the NSW Industrial Relations Commission in Case C below)
In late 2008 as part of the annual conference of the Australian and New Zealand Society of Psychology, Psychiatry and the Law a lecture was given by an officer of the NSW Commission for Children and Young Persons and Dr Lennings, a Psychologist employed by the Commission and by the University of Sydney. At that lecture it was learnt that between February and October 2008, 16,000 names had been referred by NSW agencies to the Commission. One can only speculate as to the number of names that must now be on that list, given that the Commission was created in 1998. This situation is highly reminiscent of the black lists of suspected communists drawn up in the United States by Senator McCarthy in the 1950s and 1960s.
The following cases illustrate the above problems:
(a) Case A.
Here two 14 year old girls alleged that their 22 year old male teacher "looked at their breasts" after they had been throwing paper aeroplanes at him in a NSW State Secondary classroom and after he had reprimanded them about their misbehavior. As the subsequent investigation could not conclude that the allegation was "vexatious" or "misconceived" his name was forwarded to the Commission and he was dismissed from the NSW Department of Education and Training.
(b) Case B
A similar event occurred to a computer teacher after another 14 year old girl alleged that he was looking at her breasts whilst he explained the role of a "mouse" to her in a computer class.
(c) Case C
In this case a Music Teacher employed by the NSW Department of Education and Training was re-instated by the NSW Industrial Relations Commission following his dismissal by the Department after it had discovered that he had been found 'not guilty" by a local Court Magistrate of indecent assault. The Department justified its position by the fact that the Magistrate did not specifically state in his judgment that the complaint was false or that the teacher could show that he was somewhere else at the time. The Department appealed the decision of a Commissioner to the Full Bench who upheld the judgment of the Commissioner For those interested in the appeal judgment of the Full Bench please write to the NSW Industrial Relations Commission as the full text of the appeal has not been placed on the internet.
(d) Case D
Here a student of a Netball Teacher alleged child abuse. The teacher was dismissed by her employer, the Netball Association of NSW and she appealed to the NSW Supreme Court. The Court examined the allegation and the procedures used by the Netball Association and re-instated her.
In 2003 a Judge of the NSW Industrial Relations Commission stated A review mechanism might, of course, lead to no different result in any particular case. Its absence, however, suggests that TAFE and indeed perhaps other employers, might be excluding from employment persons who, in reality, pose no threats of the kind to which the assessment process in question is directed - namely threats to children and young people See para 76[http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWIRComm/2003/145.html?query=%22relevant%20disciplinary%20proceedings%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%22#disp1]
5. The Environmental Planning and assessment Act (1979) as amended in 2008.
Under this Act certain classes of Development Applications can be approved by a State Planning Committee or to a Private Certifier WITHOUT any reference to the relevant Local Council or the affected residents to which there are no rights of appeal. (In the NSW Upper House the Shooter's party and Mr Fred Nile of the Christian Democrat party joined with the Government to pass the Act)
In 2010 this amendment has allowed a number of private schools in NSW to apply for Federal Funding for school building without requiring Local Council or resident neighbors approval.
6. Criminal Assets Recovery Act(1990) - now rectified through Judicial Intervention
In 2009 the High Court of Australia struck down s.10 of the NSW Criminal Assets Recovery Act (1990) on the basis that it was an abuse of the Judicial function and a denial of natural justice. See Judgment of the High Court in International Finance Trust Company Limited & Anor v New South Wales Crime Commission NSWCA 291 . Section 10 has recently been amended in line with the High Court's Judgment.
The Stewart Denial of Natural Justice Allegation
In 2009 the Rees Labor Government of NSW dismissed a Minister of State following an allegation of sexual harassment by a young female member of his staff. The alleged harassment took place at a Conference in which there were hundreds of potential witnesses. A female barrister was asked by the Government to conduct an "independent" review. The barrister considered the two versions of events and decided that she preferred the female staffer's view. The barrister did not interview any of the many potential witnesses at the Conference some of whom had written to the Government with support for the Minister's version. The Minister has since alleged a denial of natural justice . The matter came to an end following a judgment by the NSW Court of Appeal in Stewart v Ronaldsin which the Court ruled that a Minister of the Crown could not rely on the principles of natural justice as they were appointed at "the Governor's Pleasure". To bring this matter to its conclusion the Keneally Labor Govt has offered to pay the balance of Mr Stewart's legal fees.
The View of Chris Puplick
Chris Puplick a former Privacy Commissioner and President of the NSW Anti-Discrimination Board gave an opinion on the NSW Labor party and its (lack of) commitment to Human Rights
Conclusion
The NSW Labor Government argues that Human Rights abuses can be corrected through careful drafting and constant review of Legislation. The examples provided in the Article suggest that a "political" agenda rather than genuine concern for individual human rights is the deciding factor in legislative drafting.
While the consensus in NSW is that the Labor Government will be removed by the people in March 2011, it is yet to be seen whether the alternative Government will resolve the many human rights abuses of the present Labor Administration in which denial of natural justice and abuse of the judicial function is fast becoming a feature of NSW Law.

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