Six civil society groups are today calling on the NSW State Parliament to immediately reconvene regular sittings, in a way that is safe, so it can debate and address important matters of public concern.
The NSW community is looking to their State Government to guide them through the COVID-19 public health emergency. Issues including the impact the pandemic is having on people experiencing homelessness and domestic violence and on Aboriginal and Torres Strait Islander peoples must be open to parliamentary scrutiny.
As NSW teachers prepare to go back to classrooms next week, NSW MPs will sit for just one day to pass rental relief measures and are then not scheduled to sit again until September. Only with regular parliamentary processes can the Government respond to the community’s needs rapidly.
The use of the Upper House Public Accountability Committee to review the NSW Government’s management of the COVID-19 pandemic was a step in the right direction. However, the Committee is yet to hold hearings since its inception in March, and is not accepting public submissions. The Committee has, so far, not put any measures in place to improve the transparency and accountability of executive decision-making.
Nicholas Cowdery AO QC President of NSW Council for Civil Liberties:
“There is no legal impediment to the conduct of safe sittings of parliament in the coronavirus context. Accountable government is a requirement of democracy and without it, intrusive emergency measures may become manipulated and entrenched beyond this crisis.”
Jonathon Hunyor, CEO of the Public Interest Advocacy Centre:
“In responding to the COVID-19 public health emergency, the NSW Government has been making major decisions with significant impact on our daily lives and fundamental rights. We need Parliament doing its job, ensuring oversight and accountability – it’s an essential part of our democracy.”
The Hon Anthony Whealy QC, Chair of The Centre for Public Integrity and former Judge of the NSW Court of Appeal:
"Parliament can and should sit during this crisis. Increased public spending and government intervention at this time calls for more scrutiny, not less. Australian Parliaments should follow examples set in the UK of MPs joining the chamber virtually to allow full representation across Parliament."
Alice Drury, Senior Lawyer at the Human Rights Law Centre:
“Now is the time for Parliament to shine, not shut down. We can have confidence in leadership during the COVID-19 pandemic only when decisions are transparent, open to constructive scrutiny, and responsive to the changing needs of our communities. We need regular Parliament processes back in place as soon as possible.”
See the original release from Human Rights Law Centre HERE.
Media coverage: Law Society Journal
We may have flattened the curve; but have we squashed the rule of law in the process? Kate Allman, a finalist in the NSWCCL 2019 Award for Excellence in Civil Liberties Journalism (Young Journalists category), asks the question in this month's compelling cover story for Law Society Journal.
“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,” says Stephen Blanks, a spokesperson for the NSW Council for Civil Liberties.
Blanks first relayed his concerns to LSJ on 31 March, the morning after the most restrictive public health order, which orders NSW citizens to stay home other than to carry out limited essential activities, was signed into law.
“Today, being the first day of the new regulations which prohibit leaving home except with a reasonable excuse, marks an extraordinary day in our legal history,” Blanks said.
Media coverage: 9News/AAP
As of April 20, state police had issued 95 court notices and 736 penalty infringement notices, with on-the-spot fines, since March 17.
And while some of these cases are for people legitimately refusing to comply with social-distancing measures, solicitor Peter O'Brien says people are confused about what they are allowed to do and are being penalised unfairly.
"The lack of real clarity from the political masters who put in place this legislation is leading to an arbitrary application in the streets. People are genuinely and sincerely not certain of what a reasonable excuse is," Mr O'Brien told AAP.
"I'm concerned it's being applied to people who are already over-policed, the mentally ill, those fairly marginalised in society, most of whom can't afford to pay those penalties," he said.
NSW Council for Civil Liberties president Stephen Blanks questions why some of these fines are in areas of NSW where no known COVID-19 infections exist.
"There was a couple in Cobar who were fined for being outside their home. The police should take into account if the activity engaged by the couple did put the community at risk. I'm not sure there are currently any infections in Cobar."
Media coverage: MamaM!a
Podcast interview: The Government needs at least 14 million Australians to download the COVID19 tracing app, and if we do, they've promised we could get some of our freedoms back.
So how will it work? What information of yours will it have access to? What will it mean for your privacy? We find out the facts on Covidtrace.
Guests: Nigel Phair, Director of UNSW Canberra Cyber; Michelle Falstein, Secretary of the NSW Council of Civil Liberties.
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.
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.
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."
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.
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.”
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.”