The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation (Committee) with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight (Inquiry).
NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.
The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.
The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.
The NSWCCL submission makes 7 recommendations to the Standing Committee.
 Scrutiny of COVID-19 instruments, List of COVID-19 related delegated legislation, Parliament of Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>
10th July 2020
NSWCCL has concerns regarding claims that a critically ill man from the New South Wales South Coast has twice been denied an exemption from undergoing hotel quarantine in Sydney, despite medical advice he self-isolate at home.
The ABC reported (8th July) that Stephen Evans, diagnosed with stage four oesophageal cancer in 2018, recently returned from Germany where he had a highly specialised lung procedure. NSW Health has twice refused Mr Evans’ request to self-isolate at home, stating that personal health circumstances must be balanced with ‘the requirement to implement the Public Health (COVID-19 Air Transportation Quarantine) Order 2020.’
The Orders allow for NSW Health and/or the Health Minister, to grant an exemption to permit self-isolation at home under strict conditions.
NSWCCL acknowledges the importance of adherence to the Public Health Orders relating to COVID-19 containment efforts. However, there must be an ability to protect the wider population, at the same time as catering for those in our community with particular medical needs and requirements. In the spirit of protecting the general public under the Order, we must not lose the capacity to protect individuals.
Mr Evans’ oncologist and another of his doctors have written letters in support of an exemption from hotel quarantine, outlining their patient’s specific conditions and requirements, including a customised bed and strict dietary requirements. The request specified that ‘Without doubt, it is in Stephen's medical interests to be self-isolating at his home… in order to be in proximity to his supports and local medical team, and to be distanced from others who may be at risk of COVID-19 infection.’
The doctors’ letters reference the medical benefits of Stephen being granted an exemption and their faith in his ability to fulfil requirements made of him, were he to be granted permission to serve the remainder of the compulsory quarantine period in home isolation.
In regard to granting exemptions, where circumstances permit, NSWCCL supports an individualised, compassionate approach, particularly in regard to someone such as Mr Evans, who is already suffering serious health complications and a medical condition that is not communicable to others.
NSWCCL supports urgent requests for further consideration to be given to Mr Evans’ circumstances and specialised medical needs. Mr Evans has a right to seek positive health outcomes in a way that doesn’t endanger others and a solution is available that satisfies the requests and advice from his doctors while protecting the broader community.
Michelle Falstein - Secretary, NSW Council for Civil Liberties
M: 0412 980 540
NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.
We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers. The chair of the Committee made some promising commitments in her opening statements for the first public hearing:
This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government's response to the pandemic for the Australian people.
This is not your typical Senate committee. We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum. (Senator Gallagher 23 April 2020)
There are already disturbing signs that some ministers and key agencies may not be as open in the provision of information to the Committee as is necessary if it is to fulfil its scrutiny and accountability roles.
Our submission focussed on 4 key areas:
- the fairness and inclusiveness of emergency support programs;
- the need to shape the Australian economy post-COVID towards the creation of a fairer, more just and environmentally sustainable society;
- ensuring the extraordinary powers given to ministers and agencies to restrict Australians’ normal freedoms and rights are necessary and proportionate for the protection of public health and safety, and that we have a process to ensure they will be repealed when no longer necessary;
- the enhanced imperative to put in place governance structures an to effectively scrutinise the integrity of the allocation of the vast public resources that will be expended in response to and in the aftermath of the COVID emergency.
In a joint statement seven legal and human rights groups have condemned the approach of many Australian governments to recent Black Lives Matter and refugee rights protests, stating it is inconsistent with our democratic rights and freedoms.
The legal right to protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight hour work day.
Right now, the right to protest is vital for minority groups and supporters who continue to rally against state violence and injustice. Historically, overturning injustice of this kind requires incredible public momentum and visibility, which can only be sustained through protest. Since colonisation, Aboriginal and Torres Strait Islander Peoples have fearlessly fought for an end to police violence, discriminatory laws and the structural racism that locks them out of justice. The pressure is building on governments here in Australia to finally act on what First Nations people have been calling on for decades: an end to Black deaths in custody and an end to police violence.
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.
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 26th 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.
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”. 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:
- 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.”
- Contact your local Federal and State Members of Parliament and make them aware of your situation.
- Contact the Attorney General, Health Minister and the Police Minister in the State or Territory in which you are quarantined.
- Publicise your complaint to Australian media outlets.
- Report your complaint to websites, such as https://covidpolicing.org.au/.
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.
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:
- a) the Australian Government's response to the COVID-19 pandemic; and
- 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.
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 11th August. The Australian Parliament will sit for one day next Wednesday (8th 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.