The Supreme Court of Victoria has found that the Victorian Government has prima facie breached their duty to take reasonable care for the health of a person behind bars during the COVID-19 pandemic.

The case, an urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that people in prison are sitting ducks for COVID-19, and that it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.

While the Court didn’t make any findings of fact given the case was heard as an interlocutory hearing, the Court did find that there was a prima facie case that the prison authorities breached their duty of care to safeguard the health of the person in prison, and that the Government must act compatibility with the Victorian Charter of Human Rights.

Read more

This is an excerpt from a news article originally published by the Human Rights Law Centre, 2 May 2020.

NSWCCL Statement to the 2020 ECOSOC High Level Segment for NGOs 26^th April 2020

The New South Wales Council for Civil Liberties (NSWCCL) recognises that the human rights and civil liberties of all people cannot be fully realised unless, and until, the global community meets the targets set by the Sustainable Development Goals (SDGs). However we recognise that development, particularly economic, need not necessarily take place in a way that is human rights based.

 In times of accelerated progress towards any goal, it is clear that states can sometimes all too quickly pursue acceleration at the expense of human rights and equality. This is not to say that acceleration is itself problematic. In line with the recommendations of the Inter-Governmental Panel on Climate Change, acceleration of sustainable development in relation to climate change (SDGS 7, 11- 15) is vital to prevent the most catastrophic climactic changes. Climate change will only entrench vulnerability and marginalisation. We strongly endorse rapid acceleration of the response to climate change, particularly within Australia.

We emphasise the importance of attaining progress towards meeting the SDG targets in a way that centres human rights obligations at the core of development. The United Nations Human Rights Council has resolved that attainment of the SDGs and implementation of human rights obligations by states should be ‘mutually reinforcing’, and a state should implement the SDGs consistently with their pre-existing human rights obligations (A/HRC/RES/37/24). This is also recognised in SDG 10 and SDG 16.

Turning to an example from Australia, the longstanding inequality between Indigenous and Non-Indigenous Australians is a deplorable stain on Australia’s history. The 2020 Closing the Gap report identifies that the child mortality rate for Indigenous Australians is slightly over double the child mortality rate for Non-Indigenous Australians (p. 15). Numeracy and literacy rates for Indigenous school students are well below national standards (p. 45). Whilst we acknowledge that some progress is being made, such progress is slow and does not comply with the spirit of the SDGs and should be accelerated alongside economic development.

To ensure that the crucial acceleration of progress responding to the SDG targets takes place in a way that advances human rights we call upon states to:

• Ensure that justice, integrity and accountability bodies within states are strengthened and properly resourced.
• Adopt domestic legislation which enshrines fundamental human rights and affords citizens with personal remedies to protect their rights.
• Ensure that the rights of marginalised and minority groups are given equal, if not greater, importance than the rights of others within society to remedy past injustices.

Michelle Falstein

Secretary

NSW Council for Civil Liberties Australia

Resources for those in mandatory quarantine

As many of those who have been in mandatory quarantine are coming to the end of their periods of isolation, many in city hotels, there are others returning from overseas and entering mandatory quarantine.  NSW Health describes mandatory detention as an “inconvenience”. It is more than that. Yet, those corresponding with NSWCCL have not complained about the fact of having to be quarantined. They did not mind being inconvenienced. They had other concerns about it.

Policy about quarantine was announced without sufficient time and briefing and understanding by those who were required to provide and enforce it. It has been unnecessary for those quarantined to be the subject of arbitrary and, often, meaningless rules, seemingly made on the run, uncertain and inconsistently applied. If the government expects voluntary compliance with its policies, those policies have to be perceived as fair.

The NSW Government says that it is “determined to make the 14-day period as comfortable as possible”.[1] However, many are not being treated respectfully and with consideration and compassion. Many have no ability to have access to fresh air and daily exercise, appropriate meals and cleaning supplies. Special dietary requirements are not being met and physical and mental health needs are not being addressed appropriately. In some cases, packages are not allowed to be delivered by family and friends or arbitrary limits are placed on what they may contain. Others complain that there is no easy access to medical services or other simple requirements that have no bearing on one’s ability to be quarantined.

If you have any issues:

1. Ensure that you take advantage of the facilities that you are entitled to according to the NSW Health page on quarantine. There are a number of resources listed in that website. https://www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx

The website states that “Each hotel is being staffed with experienced doctors, nurses and mental health professionals. Every day travellers will have access to:

• registered nurses
• assistant nurses
• a general practitioner (doctor) will do a daily round of the hotel
• medical practitioners are on-call 24/7 with the same doctor for continuity.”

1. Contact your local Federal and State Members of Parliament and make them aware of your situation.
2. Contact the Attorney General, Health Minister and the Police Minister in the State or Territory in which you are quarantined.
3. Publicise your complaint to Australian media outlets.
4. Report your complaint to websites, such as https://covidpolicing.org.au/.

[1] https://www.health.nsw.gov.au/Infectious/factsheets/Pages/hotel-quarantine.aspx

More than 200 not-for-profit and community organisations have backed a major report calling on the Australian Government to strengthen its commitment to human rights in its laws, policies and practices.

The report has been prepared ahead of a United Nations Human Rights Council review of Australia in a process known as the Universal Periodic Review, which each member of the UN must undergo every four years.

Edwina MacDonald, a Legal Director at the Human Rights Law Centre and one of the report coordinators, said it offers a comprehensive insight into the state of human rights in Australia, at a crucial time with the COVID-19 crisis set to exacerbate existing inequalities and create a host of new human rights challenges.

“The human rights that many Australians have taken for granted are suddenly front and centre in public consciousness – essential rights like healthcare and education are coming under enormous strain and structural economic inequalities will hit disadvantaged communities hard. This report provides a snapshot of the existing problems and is a stark reminder that Australians will not face this pandemic on equal footings,” said MacDonald.

Read/Download Australia’s Human Rights Scorecard: Australia’s 2020 UN UPR NGO Coalition Report.

Australia’s Universal Periodic Review by the UN Human Rights Council will take place early 2021. The NGO Report was coordinated by the Human Rights Law Centre, the Kingsford Legal Centre and the Caxton Legal Centre, working with an Advisory Group comprised of 16 NGOs, and authors from 57 NGOs. 

The NSW Council for Civil Liberties welcomes the unanimous decision by the Senate to establish a Select Committee on COVID -19 matters.

The Committee has a wide scope. It is empowered “to inquire into and report on:

1. a) the Australian Government's response to the COVID-19 pandemic; and
2. b) any related matters.”

It has strong powers to gain information, hold public or private hearings,  publish evidence, findings and recommendations and a direction that it be “provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President”.

It will have a core membership of 7 being: 3 nominated by the Leader of the Opposition in the Senate; 2 nominated by the Leader of the Government in the Senate; 1 nominated by the Leader of the Australian Greens; and Senator Jacqui Lambie. Other Senators will be able to be nominated as participating – but not voting - members.

On the face of it, this new Select Committee should be able to make a significant contribution to democracy in oversighting the Government’s responses to the COVID -19 pandemic.  In so doing it will hopefully provide some much-needed scrutiny of Government decisions and their implementation to fill an astonishing accountability vacuum created by the closure of the Australian Parliament until 11 August 2020.

The Government’s continued refusal to amend the Parliament’s sitting schedule to provide for sittings over the intervening months is a betrayal of the people’s rights to transparency and accountability in government.

NSWCCL public statement

Previous statement: 6 April 2020, Call for senate committee scrutiny of government responses to COVID-19

Previous statement: 30 March 2020, Statement: COVID-19 and Government oversight - Prolonged Parliamentary Adjournment unacceptable and Dangerous for Democracy

NSWCCL is engaging with the fast moving covid-19 crisis on a number of fronts. The maintenance of core democratic processes to ensure adequate parliamentary scrutiny of the government’s responses to the crisis is a high priority for us and other civil society organisations. Our intention is not to hinder the Government’s capacity to act with necessary speed in the face of the unprecedented challenges of the pandemic. Rather, our aim is to give confidence to the community that government responses are being scrutinised for lawfulness, proportionality and fairness through transparent parliamentary processes. Without this confidence public trust in the Government over this period is likely to be weakened. 

Like many others, we have urged both the NSW and the Australian Governments to rethink their decisions to close down their parliaments over the next crucial months. The NSW Parliament is not scheduled to resume until 15th September and the Australian Parliament not until 11^th August. The Australian Parliament will sit for one day next Wednesday (8^th April) to approve the latest tranche of emergency spending.

We have also called for the establishment of a strong, bipartisan Senate Select Committee to scrutinise and report on the Government’s responses to the pandemic crisis. NSWCCL joined 7 other legal and civil society groups in a public call for such a committee to approved when the Parliament sits on Wednesday:

The Senate must establish the Select Senate Committee when it reconvenes, for potentially just one day, next Wednesday. A Select Senate Committee will provide a vital avenue to business, civil society groups and individuals to provide information to inform Government decision-making and feedback on the impact of those decisions, so that no one is left behind and no one is left in the dark. 

The NSW and New Zealand Governments have already established committees to oversee their Governments’ response to COVID-19.

A Select Senate Committee is just a part of the solution – Australians also need regular parliamentary processes to continue. It is vital that our Parliament sit, in a way that is safe, so it can make decisions rapidly as the pandemic unfolds. 

Participating groups in addition to NSWCCL were Human Rights Law Centre, Centre for Public Integrity, Amnesty International, National Aboriginal  and Torres Strait Islander Legal Services, People with Disability Australia, GRATA Fund and the Public Interest Advocacy Centre.

Other groups – including eminent ex judges -  have made similar calls for such a committee. 

At this point of time we are hopeful that the Senate will set up such a Committee next  Wednesday to provide the much-needed and focused scrutiny on Government actions over this extraordinarily challenging and scary period in Australia’s history.

Joint media statement 

April 2, 2020

No fresh air, no exercise, no access to mental health professionals - concerns about conditions for citizens held in enforced quarantine in Sydney

NSWCCL is greatly concerned about the experiences and conditions of those in enforced quarantine in NSW. The Council advocates for measures that, at the very least, maintain individuals access to daily fresh air for a certain period per day, and the ability to exercise. 

The Council acknowledges the importance of containment and understands the necessity to quarantine Australians returning from overseas. However, those in quarantine should have access to fresh air, exercise and mental health professionals. The conditions of quarantine should be compassionate and respectful rather than arbitrary.

NSWCCL has been contacted by a Victorian resident Stephen, and his wife, who are being held in quarantine in a Sydney Hotel. The couple recently returned from Peru (31^st March), where they had already been held in lockdown there for 14 days after the Peru government imposed a state of emergency on 16 March.

Stephen contacted NSWCCL for assistance in ‘advocating for all those others in enforced quarantine in Sydney to ensure that our basic human rights and civil liberties are not being infringed in such an arbitrary and inhumane way.’

Stephen goes on to add, “I am not disputing the government’s right to force us into quarantine. What I am disputing is the conditions they have imposed on us.  We are not convicted criminals, we just had the misfortune to be overseas at the time the world went into crisis.”

Stephen informed the NSWCCL about the conditions under which they were being quarantined;

• We are literally locked in our room for 24 hours per day. We do not even have a key for our room.
• Police and army patrol our floor to ensure our compliance.
• We have no access to fresh air.  We are in a room on the 26^th floor with no window that can be opened.
• We have no ability to exercise.
• We are being denied access to alcohol.
• I have my wife with me, but many people are on their own – they are essentially in solitary confinement. 

“There are no support services for us. Nobody is checking on us as regards are physical or mental wellbeing,” Stephen said.

“Yesterday one of our friends in Sydney bought us some fruit, muesli, milk, tea and a couple of 6 packs of beer. The police stopped her leaving the alcohol.  Apparently those in quarantine are banned from having alcohol.”

The police quoted legislation in the NSW Government Gazette, Number 62, Saturday, 28 March 2020, apparently telling Stephen that the Police Commissioner has authority under clause 6(2) to determine what those in quarantine can/cannot eat and drink.

Today Stephen and his wife received a delivery of prescription medicine from a local pharmacist. The police opened and inspected the package before giving it to the recipients. Stephen said her felt this was ‘a gross breach of privacy and completely unwarranted – the package was clearly from a pharmacy and contained nothing but medicine’.

 Stephen and his wife are seeking:

• Access every day to fresh air for a minimum 30 minutes
• Access to an area we can exercise in for a minimum of 30 minutes each day
• Access to moderate amounts of alcohol (which of course we pay for ourselves)
• Daily checks on our health and mental wellbeing.

 “Surely this is not too much to ask for people who have committed no crimes and are otherwise complying with the draconian conditions imposed on us,” Stephen added.

 NSW Council for Civil Liberties - email: office@nswccl.org.au

March 30, 2020

PUBLIC STATEMENT

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[1] and August[2] 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.”[3]

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.[4]

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.”[5] 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.[6]

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

------------------

  PDF copy of statement 

Contact: Jared Wilk Convenor, Civil Liberties and Human Rights Group

Email: office@nswccl.org.au

Sent to:
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

[1] https://www.dailytelegraph.com.au/news/breaking-news/nsw-parliament-works-to-pass-virus-bills/news-story/b5aa536f2dcef0abd32d946a3a5217b6

[2] https://www.sbs.com.au/news/federal-parliament-to-shut-until-august-as-coronavirus-causes-revised-schedule

[3] https://theconversation.com/a-virtual-australian-parliament-is-possible-and-may-be-needed-during-the-coronavirus-pandemic-134540

[4] See e.g. Pape v Commissioner of Taxation (2009) 238 CLR 1.

[5] Communist Party Case (1951) 83 CLR 1 [87].

[6] https://theconversation.com/a-virtual-australian-parliament-is-possible-and-may-be-needed-during-the-coronavirus-pandemic-134540

RESPECT@WORK: NATIONAL INQUIRY INTO SEXUAL HARASSMENT IN AUSTRALIAN WORKPLACES

In the past 5 years, 1 in 3 people has experienced sexual harassment at work. The 2018 National Survey highlighted that 2 in 5 women and 1 in 4 men have experienced this situation. Moreover, 53% of the victims are Aboriginals.

In June 2018, against the backdrop of the momentum of the #MeToo movement and recognition of the prevalence of, and immense harm caused by sexual harassment in Australian, and global, workplaces, the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, announced the National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry).