Media coverage: 7 News
The NSW Council for Civil Liberties wants the Bail Act amended to ensure courts take into account the fact that the pandemic has caused major delays in finalising cases.
"An express provision ... which provides that the court must take into account the risks posed by COVID-19 to inmates, correctional staff and other gaol workers, their families and the community more broadly, would send a clear message to police and the courts," council president Nicholas Cowdery QC said in a statement.
Statements from NSWCCL on COVID-19 responses, links to up-to-date information and resources
For NSWCCL in the media visit THIS PAGE.
NSWCCL Statements on COVID-19
Actions and campaigns
NSWCCL recently signed on to support the #GameOver campaign by Craig Foster to get those held in offshore detention to safety, and endorsed the 'Open letter to Australian governments on COVID-19 and the criminal justice system’
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 - Signed 10:20pm 30th March
Australian Women Against Violence Alliance - COVID-19 resources for a range of at-risk and minority communities
Aboriginal Legal Service NSW ACT Free Our People - Petition: Stop COVID Aboriginal Deaths in Custody before it's too late
Asylum Seeker Resource Centre - Petition to protect people seeking asylum and refugees in COVID-19 crisis
Former US Attorneys, DOJ Leaders, Attorneys, and Judges urge President Trump to release vulnerable individuals from custody due to COVID-19 concerns
Over 400 Former US Attorneys, DOJ Leaders and Attorneys, and Judges Urge President Trump to Release Vulnerable Individuals from Federal Custody to Avoid Deadly Outbreak of COVID-19
In a letter from 405 former DOJ leaders, attorneys, and federal judges , including 35 U.S. Attorneys, these criminal justice leaders urge President Trump to take rapid action to release medically at risk individuals from federal custody to protect them and our communities from the catastrophic spread of COVID-19 in federal facilities. The letter calls on President Trump to use his executive power to commute sentences for vulnerable individuals, urge policies to limit the number of new people entering federal custody, and secure emergency funding for reentry services and support of state and local efforts to similarly address the spread of COVID-19 in custodial settings. For more, read the release and letter.
The signatories to the letter, like other criminal justice leaders in recent weeks, came together in response to the current public health emergency. These former prosecutors, attorneys, judges and law enforcement leaders stressed the immense vulnerability of incarcerated and detained populations to the deadly COVID-19 virus due to dense living conditions, poor access to quality healthcare, and the increasing elderly population behind bars.
In the letter, they urge the President to support efforts to mitigate the spread of COVID-19 among those held in federal custody – as well as the many individuals who work in these facilities and return to their community at the end of each shift – by:
- Using his executive power to sensibly commute sentences for the elderly, those who are medically vulnerable and individuals who have already served most of their sentence, provided that they do not pose a serious risk to public safety;
- Encouraging and establishing policies to promote the limitation of new custody to only individuals who present a serious and demonstrable risk to public safety;
- Creating a bipartisan emergency advisory group to quickly guide this process and ensure the most vulnerable are protected;
- Urging the Bureau of Prisons to take measures to ensure correctional staff receive regular testing as well as health care support, including full pay if they become sick with the virus; and
- Supporting emergency funding for prevention, treatment, reentry support, and incentivising state and local governments to address the public health concerns in their own jails and prisons.
“We, as former United States Attorneys, federal judges, Assistant United States Attorneys, and DOJ lawyers and leaders, understand the obligation to protect the safety and wellbeing of everyone in our community….To prevent the rapid spread of COVID-19 in facilities under your federal control, we urge you to start commuting sentences immediately.”
NSWCCL recently issued statements regarding COVID-19 concerns and the NSW prison/detention population -
March 30, 2020
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 and August 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.”
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.
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.” 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.
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
Contact: Jared Wilk Convenor, Civil Liberties and Human Rights Group
 See e.g. Pape v Commissioner of Taxation (2009) 238 CLR 1.
 Communist Party Case (1951) 83 CLR 1 .
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).Read more
Media coverage: The Weekend Australian
NSW Council for Civil Liberties spokesman Stephen Blanks says any extraordinary powers used by health officials to curb the COVID-19 contagion must be subject to 'clear, short sunset clauses'.
"These tracking powers have been effective in other countries,” Blanks told The Weekend Australian. “This is an extreme situation. “I think it’s appropriate for this data to be used, provided it’s used only for this purpose and subject to strict oversight.”
Media coverage: SBS News
"Police should be trying to promote understanding of the new regulations and new restrictions and doing everything they can to get voluntary compliance," spokesperson for the NSW Council for Civil Liberties Stephen Blanks told SBS News.
"It shouldn't be a revenue-raising exercise for the government," Mr Blanks said.
"And it's so important that when restrictions are imposed, that proper notice is given to a community, that restrictions are clearly available on government websites. So people can see what it is that they are allowed and not allowed to do."
But he said in this instance, officials "have been struggling to achieve clarity".
"This confusion makes it hard for members of the public to know what they are allowed to do," he said.
Asylum Seekers and Refugees must be considered in the response to the Covid 19 Emergency.
The NSWCCL has grave concerns for the health and safety of those held in immigration detention centres on the Australian mainland. Media reports have described conditions in the Villawood Detention Centre of up to 200 detainees in close contact during mealtimes and the cramped conditions in the Mantra hotel in Brisbane which is being used as an Alternate Place of Detention (APOD).
We are also concerned for those who are in the community and may be left without access to Medicare and Centrelink. The Federal Government has extended the range of people who can access Centrelink payments with the aim of providing money for those who need it however, as explained by Paul Power from the Refugee Council of Australia, “This thinking should be extended to everyone in the country who is in need, particularly those who have no access to any form of safety net or to Medicare because of their visa status.”
We ask our members and supporters to act upon these concerns by letting their Federal Members of Parliament know of their concerns. More information and a prepared letter are on the Refugee Council of Australia website.
Dr Martin Bibby and Angela Catallo, co-convenors, Asylum Seekers an Refugees Action Group
March 27, 2020
NSW Attorney General, Mark Speakman SC
Anthony Roberts MP, Minister for Counter Terrorism and Corrections
Peter Severin, Commissioner, Corrective Services NSW
Gary Forrest CEO Justice Health
The NSWCCL has written to the NSW Attorney General Mark Speakman SC to acknowledge the strong leadership shown by taking swift and decisive action to amend the Crimes (Administration of Sentences) Act 1999 to create a power for early release to conditional parole in some circumstances. If this power is exercised to substantially reduce the number of people held in detention in NSW, this will be a significant step towards slowing the spread of COVID-19 and saving lives.
We urge the Attorney General to also consider relieving the strain on prisons and consequential health risks caused by the burden of overcrowding by amending the Bail Act 2013. In 2013 the Audit Office of NSW identified that 33% of the NSW prison population were on remand. This proportion of the prison population can only be reduced through release by police or courts under the Bail Act.
The current bail framework can be applied to reduce the numbers. In particular the court can take into account the delays which will be experienced in finalising cases as a result of the impact of the pandemic and also vulnerabilities of the accused, for example their age, pre-existing conditions or if they are an Aboriginal or Torres Strait Islander person.
However, the Bail Act does not currently provide for the impact of the spread of the virus within the prison system on the community or other people detained or working or attending correctional or detention centres. An express provision in the Bail Act which provides that the court must take into account the risks posed by COVID-19 to inmates, correctional staff and other gaol workers, their families and the community more broadly, would send a clear message to police and the courts that Parliament acknowledges the serious and fatal risks posed by a spread of this virus.
Nicholas Cowdery AO QC
President, NSW Council for Civil Liberties
Rebecca McMahon & Eugene Schofield-Georgeson
Convenors, Criminal Justice Action Group
March 24, 2020
COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 doesn’t do enough to protect human rights
The NSW government has now passed the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020. The NSW Council for Civil Liberties (NSWCCL) appreciates the government’s rapid response in introducing emergency public health measures, at this time. The government has a broad range of public health and emergency response powers available under current legislation, for responding to public health emergencies. Although some elements of individual liberty and equity may be overridden to protect the wider community, when exercising those powers, the government must remain vigilant to avoid the grave human rights violations likely to affect the most vulnerable in our society. Those vulnerable include those who are unable, because of disability; poverty; their migrant status; or incarceration, to access emergency economic or health services. If unprecedented numbers of job losses ensue, as predicted, then the number of vulnerable in our society will swell.
It is for these reasons that the NSWCCL wishes to highlight a number of disturbing aspects of and omissions from the Bill:
- Pre-recorded evidence in criminal trials does not give the opportunity for the defence to cross-examine the prosecution witness which is an essential component of criminal justice process. While acceptable, in some limited specific special circumstances, this provides for a much broader range of witnesses, if the class of persons is revised by regulation.
- Evidence given from a remote location, by video link, would provide the same protections, in terms of disease, but would have the benefit of allowing cross-examination. If it is considered that this cannot be achieved, due to a lack of resources, that is not a sufficient reason, where the integrity of the justice system in achieving fair trials is at risk.
- The possibility of a 12 month, or longer period, for the emergency measures to be determined by the Attorney-General, is not satisfactory. There should a be a firm sunset date, so that parliamentary approval is required, for any extension.
- The Bill invokes powers, in s747B of the Local Government Act, that allow legislation to be amended or repealed without going back to Parliament for consideration. Although emergency situations may be a valid exception to the principle, the NSWCCL generally opposes these as they produce less scrutiny and Parliamentary control over legislation. This is not considered a necessary measure in these circumstances.
- The Bill should include strong whistleblower protection for health workers. In a health crisis of this kind, it is more important, than ever, to ensure that the public can have access to accurate information, in a timely way. Health workers are obviously in a position where they will often be first to know, and they should be protected from persecution, and prosecution, if they genuinely see a need for public disclosure of information.
Finally, NSWCCL has released a statement specifically addressing COVID-19 and prisons which can be accessed at the following link https://www.nswccl.org.au/statement_covid_19_and_prisons.
NSWCCL contact: email@example.com or Michelle Falstein 0412 980 540
About NSW Council for Civil Liberties
NSWCCL is one of Australia’s leading human rights and civil liberties organisations, founded in 1963. We are a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression. We also listen to individual complaints and, through volunteer efforts; attempt to help members of the public with civil liberties problems. We prepare submissions to government, conduct court cases defending infringements of civil liberties, engage regularly in public debates, produce publications, and conduct many other activities.