NSWCCL News

NSWCCL spokesperson 'As soon as it is safe for COVID-19 restrictions to be lifted, they should be'

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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COVID-19 restrictions mark ‘extraordinary day in our legal history’ - LSJ

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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Concerns re conditions for citizens held in enforced COVID-19 quarantine in Sydney

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 (31st 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 26th 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

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Parliament's COVID-19 adjournment 'unacceptable, dangerous for democracy'

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.”

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NSWCCL President on democracy and accountability during COVID-19

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.

The six judges, including former High Court justice Mary Gaudron, have proposed Canberra adopt New Zealand's approach of setting up an all-party select committee of parliament to scrutinise the government's epidemic responses.

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NSWCCL's Stephen Blanks on COVID-19 restrictions, rights and police powers

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."

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Statement: Mobile device tracking of COVID-19 infected persons

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.

The move to monitor citizens’ movements may set a dangerous precedent. Contact tracing and the wider application of mobile device tracking would enable the Australian government to assemble a person’s location history into a single, searchable database. Mobile device tracking, in Australia, could involve tracking infected persons to ensure compliance with self-quarantine, as in Israel (see below). South Korean authorities publicly share details of the age, gender and location of persons infected with COVID-19, by mobile phone alert and on the government’s health website.[4] Often that information is sufficient to identify the infected person.

NSWCCL calls for complete transparency from the Australian government of its development and use of any mobile device tracking technology in this emergency.

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What Australia’s ‘extreme’ new coronavirus laws and police powers mean for civil liberties

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”.

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NSWCCL on amending Bail Act and protecting prison communities, COVID-19

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.

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Trump urged to release prisoners vulnerable to covid-19

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.”

From: fairandjustprosecution.org/


NSWCCL recently issued statements regarding COVID-19 concerns and the NSW prison/detention population -

Statement: Strong Leadership by NSW Attorney General on parole, steps needed for remand population


Reducing the risk of COVID-19: reducing the number of people in custody

 

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