Media coverage: Sydney Criminal Lawyers

Except for those brief moments when it has been chided during the COVID-19 crisis – think Bondi Beach – the Australian public has done extremely well in completely changing the way it goes about its everyday life, with the implementation of lockdown measures.

And in amongst the rollout of prohibitions, penalties, and stimulus packages, the Morrison government saw fit to close down federal parliament for months on end. This was sold to the public as a necessary safety measure, at the same time government was recommending schools stay open.

However, as the initial pandemic shock began to clear, the opposition, judicial officers and civil liberties advocates began to question whether the removal of parliamentary oversight at the time of an unprecedented health crisis was really the correct avenue to take.

The NSW Council for Civil Liberties was calling for the launch of the senate committee in order to maintain at least some democratic process during the crisis. And the council has been keeping its usual keen watch over developments affecting the freedoms of Australian citizens.

Sydney Criminal Lawyers spoke to NSWCCL president Nicholas Cowdery about the need to increase parliamentary scrutiny during a crisis, rather than eradicate it, as well as the issues around the gaping holes in the emergency provisions that are leading to the ambiguities in their enforcement.

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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.

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

Media coverage: Straits Times/Sunday Times

The NSW Council for Civil Liberties has called on police to be more restrained regarding COVID-19 restrictions. "There is widespread community observance of the laws," said a spokesman for the council, Mr Stephen Blanks.

"If the police are seen to be enforcing them in a heavy-handed way, it will result in a loss of community support," he added.

Australian police have come under criticism for being too heavy-handed in enforcing social distancing rules after officers targeted mothers with babies and individuals sitting alone in parks.

Despite the rules being quickly and readily accepted by most Australians, there are concerns that the overzealous approach by some officers risk jeopardising community support for the measures.

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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

Media coverage: The Canberra Times

The NSW Council of Civil Liberties has called for the state's chief medical officer to be consulted about fines issued under extraordinary laws designed to prevent the spread of COVID-19.

It follows concern that police may be issuing infringement notices to people who do not pose a risk of spreading the virus.

NSWCCL spokesman Stephen Blanks disputed whether going for a drive should be classified as an offence. "That activity has negligible community risk, of course there could be a risk if there was an accident, but it's very remote," he said.

"The experience of the past week suggests the commissioner should be getting some guidance from the chief medical officer of NSW as to whether particular activities involve community health risk."

Mr Blanks warned maintaining community support for the laws would be essential in the weeks and months ahead.

"It's unprecedented, the idea that everyone is confined to their homes unless they have a reasonable excuse to leave. The fact is there is widespread community observance of the laws, but the most important thing is the community support for them is maintained," he said.

"If the police are seen to be enforcing them in a heavy-handed way it will result in a loss of community support and will be counter-productive."

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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 

NSWCCL supporter and esteemed retired physician, Dr Alex Wodak*, has called for the Commonwealth Government to immediately close all immigration detention centres  and remove all non-violent inmates from prisons across the country or risk a major public health crisis of COVID-19.

"An outbreak of COVID-19 is many, many more times likely in a detention centre or prison than in the general population."

"You have overcrowding, outdated facilities, lack of readily available hand sanitiser, and a population prone to chronic conditions, such as diabetes, cardiovascular disease and asthma."

"We cannot afford an outbreak. We owe these people a duty of care".  

Dr Wodak called for an immediate, high level meeting between the Prime Minister, Department of Home Affairs and state Ministers for Corrective Services with a view to facilitating the speedy transfer for detainees and inmates from these centres to the community.

Read Dr Wodak's statement HERE.

*Dr Wodak is Emeritas Consultant at the Alcohol and Drug Service, St Vincent's Hospital (he was Director of service from 1982-2012). Dr Wodak has been a fierce advocate for the prevention of HIV among people who inject drugs, prevention of alcohol problems and drug policy reform. He is President of the Australian Drug Law Reform Foundation and was President of the International Harm Reduction Association (1996-2004). He helped establish the first needle syringe programme and the first supervised injecting centre in Australia when both were pre-legal and often works in developing countries on HIV control among among people who inject drugs. Dr Wodak helped establish the National Drug and Alcohol Research Centre, the Australian Society of HIV Medicine and the NSW Users AIDS Association.

Media coverage: Sydney Morning Herald

A lockdown restricting the movement of people is critical to stemming the spread of COVID-19. The virus jumps from person to person after close contact, while it can also live on surfaces for long periods. By temporarily changing behaviour through physical distancing, people can slow the rate of infection. The practice has worked against outbreaks in the past, including the Spanish Flu of 1918. While the curve is flattening, experts say the virus cannot be defeated without a vaccine, which could still be 18 months away. Until then, social distancing will save lives by preventing a surge of cases overwhelming the healthcare system.

NSW Council for Civil Liberties spokesman Stephen Blanks said the restrictions were justified to keep the community safe from the pandemic, but that they should only be in place "so long as they are appropriate."

"These restrictions are extreme and extraordinary. We've certainly never had anything like this in our lifetime," he said. "When it is safe for them to be lifted, then they should be."

On Thursday (2nd April) Fuller said the NSW lockdown, supported by the enhanced police powers, would continue for 90 days, ending by June 30. He added that he would not seek to extend them. Berejiklian has confirmed the number of new cases has continued to stabilise, but said restrictions in NSW could be in place for as long as six months.

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Media coverage - Kate Allman for Law Society Journal (LSJ)

At this early stage in Australia’s experience of the global pandemic, it is hard to tell whether laws that dramatically restrict our citizens’ freedom of movement will be proportionate to the impending health crisis. Most medical experts agree severe “social distancing” measures are justified – for now – to prevent the rapid spread and devastating loss of life that COVID-19 has caused in countries such as China, Italy, Spain and the US.

But their impact on civil liberties and the rule of law has advocacy groups concerned.

“I have never seen anything like this in my lifetime and I am not aware of any previous restriction on movement and basic freedoms, ever, such as we have seen today,” Stephen Blanks, a spokesperson for the NSW Council for Civil Liberties, told LSJ.

Blanks spoke to LSJ on Tuesday 31 March, the morning after the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 was signed into NSW law.

“There will be situations where people need to leave the home – not just to access services, but just to get out of the home,” Blanks said, indicating research by Women’s Safety NSW that has already reported a 40 per cent spike in calls for help to domestic and family violence services since the COVID-19 outbreak.

Blanks said he was also worried about the lack of oversight or accountability mechanisms for police enforcing the new orders.

“Am I concerned about police not enforcing the law appropriately? Yes, I am. There is a great danger when extraordinary powers are given in an unconstrained way to authorities. It will take great discipline on the part of the police, and great management by police of people on the ground, to try to minimise any abuse of these powers.”

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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: [email protected]

Media coverage: The Guardian

The shadow attorney general, Mark Dreyfus, has called for parliament to continue to sit and scrutinise government emergency powers to deal with coronavirus, as concerns about unchecked executive power in Australia grow.

The call on Wednesday comes as the bipartisan delegated legislation committee resolved to establish an inquiry into non-disallowable instruments including new Covid-19 public health orders, citing research by the legal expert Andrew Edgar that they are putting federal government actions beyond the reach of parliament.

The New South Wales Council for Civil Liberties president, Nicholas Cowdery, has urged the commonwealth and NSW parliaments to resume before August and September, warning the current extended adjournments are “unacceptable and dangerous for democracy”.

Cowdery wrote to the federal and NSW governments and opposition, warning that the current adjournments of parliament were “unacceptable and dangerous for democracy”.

He cited the constitutional law expert Anne Twomey, from the University of Sydney, who has warned 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”.

“Even the darkest days of the world wars did not force parliament to close for extended periods,” Cowdery said.

“NSWCCL believes Australia needs more democracy and accountability in these difficult months, not less.”

Read more

Media coverage: Sydney Morning Herald/Brisbane Times

The president of the NSW Council for Civil Liberties, former NSW director of public prosecutions Nicholas Cowdery: "Even the darkest days of the World Wars did not force parliament to close for extended periods."

He called on the federal and NSW parliaments to make use of their committee processes for "more democracy and accountability in these difficult months, not less".

A group of former judges is also urging Australia's parliament to set up a bipartisan committee to scrutinise the government's epidemic responses as it faces one of the longest shutdowns on record.

Read more

Media coverage: SBS News

What are your rights as Australia goes into stage three lockdown and authorities begin enforcing stricter social distancing restrictions?

Rights groups have called for Australians to understand their rights as social distancing restrictions ramp up and new penalties are introduced to enforce them.

The message from authorities is don't leave your home unless absolutely necessary - that means going to work or school if you can't do it remotely, buying essentials, seeking medical care or exercise.

Breaking the rules will now carry stiff financial penalties across state jurisdictions as police warn they are not afraid to enforce the measures.

NSW Council of Civil Liberties spokesperson Stephen Blanks told SBS News the measures are set to have a “most serious impact” on people's freedoms and fundamentally change the public’s relationship with police.  

“The way in which they’re enforced is going to have a huge impact on whether the community continues to support these laws,” he said. 

“The issuing of the fines must really be a last resort where compliance cannot be achieved any other way."

Read more

April 1, 2020

PUBLIC STATEMENT

Mobile device tracking of COVID-19 infected persons

Prime Minister Scott Morrison has confirmed that the Commonwealth government is progressing with Singapore-style digital options for contact tracing: the identification, contacting and monitoring of those who may be infected with COVID-19, and their contacts.[1] In addition, the Australian government has now launched a Coronavirus Australia app and WhatsApp group, to provide Australians with information, and advice, about the pandemic. The Coronavirus Australia app permits the voluntary registration of a person’s self-isolation but does not, currently, provide for contact tracing.[2] At present, in Australia, contact tracing is conducted manually and directly with the affected person.[3]

NSWCCL supports the appropriate and generalised use of aggregated, anonymised map data for tracking people’s movements; to assist health services and determine where to target critical medical resources. Contact tracing is essential. However, any collection or use of a person’s sensitive personal data for digital contact tracing must come with the imposition of strict limitations.

Media coverage: The New Daily

Civil liberties experts have raised concerns over draconian new laws that heavily limit freedom of movement in a bid to slow the spread of the coronavirus.

NSW Council for Civil Liberties spokesman Stephen Banks described the restrictions as “extraordinary” and “obviously extreme”.

“We’ve never seen anything like this in our lifetimes,” he said.

The idea of making it illegal to leave your own home except with a reasonable excuse is the most severe kind of restriction that could be imagined.’’

Although the coronavirus pandemic is a valid reason for the restrictions, Mr Banks said that governments and police must “do everything that they can to maintain community support … because if the community ceases to support it, then it becomes unworkable”.

Read more

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.

Read more

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. 

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]