Public statement:  NSW cannot arrest its way out of the pandemic 

It is essential that the people of NSW be united in their drive to combat COVID-19 and have confidence in the measures imposed by government. There can be no doubt that properly calibrated temporary measures designed to reduce the spread of the virus are required. 

But on grounds of overreach and disproportionality, the NSW Council for Civil Liberties (CCL) is deeply concerned about the special powers to be given to the police, announced yesterday. 

We are also concerned at the imposition of a curfew and limit of exercise to one hour per day on people within the 12 specified local government areas.  

The special powers granted to police will allow the Commissioner of Police to declare residential premises “COVID-risk premises” and require all people to present to police during compliance checks. It also gives the Commissioner of Police the power to lock down apartment blocks while health assesses the COVID-19 risk. 

This recognises that police do not have the skills and capacity to assess whether premises present a COVID-risk and properly assigns that task to health. That being the case, any declaration or determination of whether particular premises should be locked down because they pose a COVID-risk should lie with the Chief Health Officer or the LHD and not with the police. We are facing a health crisis and not a crime wave. 

The new special powers will also allow the police to direct a person who has been issued with an infringement notice to return to their place of residence, and if a person from outside an LGA of concern is found to be in an LGA of concern without a reasonable excuse, they will be fined $1,000 and required to isolate at home for 14 days. This is on top of the already significant fines of $3,000 and $5,000 for various COVID compliance offences that have been announced in recent weeks. The quantum of these fines is likely to add to the financial burden already placed upon individuals and businesses facing hardship due to the pandemic.

These are significant new powers which have been given on top of the existing sweeping powers entrusted to police over the citizens of NSW. Trust in police can only be undermined when, rather than providing a public assurance that the additional police powers will not be misused, Police Commissioner Mick Fuller has effectively given a green light to individual officers who may misuse the powers, advising that should they “get it wrong”, they will not be held to account.

This is truly alarming when the new powers will allow police to enter people’s homes without warrant and require people to present to police during compliance checks.

Moreover, if the evolving rules are so complex that we can't expect police (whose job it is) to get them right, how is it reasonable to fine members of the public for breaches? It is too much to expect people with a linguistically diverse background, cognitive disability or limited education to stay on top of poorly communicated, constantly changing rules. 

Heavy-handed policing will not lead to successful health outcomes and is likely to undermine trust not only in police but also in the government that empowered them. NSW cannot arrest its way out of the pandemic. A two-pronged approach is required – adequate vaccination and testing being made freely available coupled with properly calibrated health directives based on evidence.

The new rules for the 12 identified local government areas announced yesterday will operate from 23 August and include curfews from 9pm to 5am with exemptions for authorised workers, who will have to carry a permit issued by Service NSW as of 28 August. Any person entering one of the 12 LGAs from that date must also carry a worker permit. There will also be a limit on outdoor exercise of one hour per day.

It may be true that if we had locked down hard and fast when the first Delta cases emerged in Bondi, we would probably not be in the current situation, but the fact is that we did not do that and the milk cannot be unspilled. So, it is not unreasonable for the government to have an approach, based upon the evidence, that focuses health measures within those areas of Sydney where the virus is spreading most rapidly and where groups of spreaders have been identified. 

But the perception of those in western and south-western Sydney, justified or not, is that they are bearing the burden of the current crisis and being scapegoated. They feel that this is a tale of two cities within Sydney, divided along ever-deepening faultlines between the west and the more affluent eastern suburbs. This perception will only be heightened by yesterday’s announcements. Government needs to emphasise the evidence base for the policies it implements. 

As Jihad Dib MP said yesterday on Twitter:

We are not in this together when there are different rules for people according to where they live. Yesterday’s curfew announcement only reinforces the tale of 2 cities narrative. People will follow health orders but they are well and truly over the inequity & inconsistency in rules. 

The Premier herself conceded yesterday that the evidence about whether curfews are an effective tool against transmission was “mixed”. She also said that her government had considered advice from police on Thursday before deciding to implement the 9pm to 5am curfew within the specified LGAs. The justification offered for the curfews was essentially that the measure should be tried because it may work and the Premier would regret not trying everything to contain the virus. This is not a good enough reason to implement such a sweeping restriction on civil liberties. The onus is on government to demonstrate that a restriction is necessary and proportionate to the achievement of a legitimate aim. 

NSWCCL is not persuaded, on the basis of the evidence presented to the public, that curfews will be successful, let alone proportionate, given the seemingly low risk of transmission through activities that are currently allowed between 9pm and 5am under the existing health orders. Heavy restrictions on civil liberties should not be initiated on the basis of a “let’s see what sticks” approach. 

Nor does it appear that consideration has been given to the impact of the curfew on movement and patterns of contact between people within the specified LGAs during the times they are able to leave home. Concentrating the movement of people to a shorter time period to carry out essential activities including obtaining food or essential goods and services or for some other reasonable purpose may have the perverse effect of making more people come into contact with each other in grocery shopping areas within permitted times.

Further, restricting people’s movement between 9pm and 5am will reduce the already diminished trade for late night and 24-hour businesses such as petrol stations and take away. This will leave even more workers in Sydney’s western and south-western suburbs without shifts and income.

The limit on outdoor exercise has the potential to further exacerbate the already declining mental health and wellbeing of Sydneysiders, the vast majority of whom are trying their best to comply and keep themselves, their families and their communities safe. This is particularly so for individuals, families and groups who are living in more confined or crowded conditions, those who may be experiencing tension or abuse within their homes, and for those who are alone. 

At this time more than ever, we need strong, responsible and compassionate leadership that is based upon evidence and principle. Leadership that is prepared to overlook police overreach will damage an already delicate social balance in NSW and thwart the health initiatives being taken.

Pauline Wright
President, NSWCCL

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