Letters

Local NSW fishermen are being prosecuted under State law contrary to their Native Title rights

Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support
Update 20 October 2021: see also our joint media release prompted by the news of a decision to increase the commercial take.  

Members of the Aboriginal community who have a right to fish under the Native Title Act 1993 are being prosecuted under the Fisheries Management Act 1994 (NSW) (FMA) contrary to those rights. Mounting a native title defence is both time consuming and expensive, meaning that a number of Aboriginal men have been incarcerated as they have been unable to defend themselves.

A legislative amendment that would resolve this situation was passed 11 years ago, but hasn't yet commenced. NSWCCL has written to the NSW Minister for Agriculture to urge him to immediately rectify this situation - rights that require a costly legal defence to enjoy are not worth the paper on which they're written.

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NSWCCL calls on Regulation Committee to review confusing Public Health Orders

Public Health Orders to manage the COVID-19 pandemic are being made and amended on the fly. 

Given the speed at which they are drafted, the constant amendment and possibly the lack of care taken in their drafting, they have proven to be incredibly confusing. 

They are almost impossible to understand - new evidence of the confusion that the Orders are causing emerges every day. Is sitting on a park bench or a beach eating something considered outdoor recreation? Is light walking a good enough reason to take one's mask off?

NSWCCL asks: how can the rule of law prevail where its subjects cannot ascertain the relevant law?

Lack of oversight

These Orders have a significant impact on our individual rights and liberties, effectively introduce serious offences, and are controlling the lives of millions of NSW residents - they should be subject to intense parliamentary scrutiny.

However, that isn't happening. The Orders are made by the Health Minister under section 7 of the Public Health Act 2010 and are effective immediately, with no review required. The checks and balances that usually apply to legislation are not in place. 

The Regulation Committee 

Since 2017, NSW's Regulation Committee has had a power to review "any instruments of a legislative nature regardless of its form, including the policy or substantive content of the instrument". Since last year, it has had the power to self refer. 

NSWCCL has written to the Committee urging it to take on the scrutiny and review of the Orders, whether that is through the establishment of an inquiry, public or private communications with government or otherwise.

More information: Read our letter to the Regulation Committee


A Human Rights Act for Australia

NSWCCL wrote to the Leader of the Opposition Anthony Albanese and the Shadow Attorney General Mark Dreyfus to support the commitment in Labor’s national platform to review the Human Rights Framework established by previous Labor governments and consider whether it could be enhanced through a statutory charter of human rights or other similar instrument. We called for a commitment to that review in the first hundred days of the next Labor government as a catalyst to reform Australia’s ethical infrastructure.

More information: read our letter


Common Ground: open letter condemning inappropriate policing & unlawful searches

NSWCCL joins Amnesty International, LONSW, Shelter and TUNSW in condemning the inappropriate policing and unlawful searches imposed on residents of Common Ground in Camperdown. We stand in solidarity with the residents in lockdown. Below is our joint open letter - also published on the Legal Observers NSW website

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Detainees in 'punishment cell conditions' for quarantine

NSWCCL is increasingly concerned about the impact on detainees in our immigration detention facilities of current quarantine arrangements. In particular, the treatment of people who return to detention centres after medical appointments is unacceptable.

  • They are confined in small rooms for a fortnight.
  • There is nothing in the room except a bed, an open toilet and a wash basin.
  • The windows are tinted, so detainees cannot see out.
  • There is no access to personal possessions.
  • No reading material is available - not even a Bible, Torah or Koran.
  • There's no exercise outside of the room.
  • A change of under clothes may not be available for several days. 
  • There is a buzzer to call for attention, but people may have to wait for a lengthy period for a response. 
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Urgent action required over COVID cases in prisons

Until recently, NSW had seen very few COVID cases in prisons. But that has changed, with Croakey Health Media reporting on Monday that:

"In response to queries from Croakey, NSW justice officials last week confirmed seven (including one staff member) COVID-19 cases in prisons and juvenile justice facilities, the highest number in a justice jurisdiction since the pandemic began, according to international advocacy group Human Rights Watch."

This is of particular concern given the over-representation of Indigenous people in our prisons, coupled with their disproportionate COVID risk. NSWCCL is calling on the government to take urgent action, including:

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Catch-22 for refugee

According to coverage by the Guardian, a refugee who has lived in Bris for a decade, with permanent residency, was given five days to respond to notice of intent to cancel his visa. The issue? He was required to document his identity for his citizenship application, but there's no reliable way to do so.

We have written to the Minister for Immigration, Alex Hawke, for clarification - we hope to hear that the man's citizenship application has been accepted.

 


NSW's Public Health Order and our right to avoid self incrimination

Update 11 Oct '21: The information we received following our GIPA requested was reassuring. However, we remain concerned: in the context of a public health emergency, it's vital that people do not fear any repercussions for telling the truth if this might incriminate them. We wrote again to the Commissioner noting that Police appear to have exercised restraint but also noting our ongoing concerns. We called for: 

  • The Public Health Orders to be amended to include a derivative use immunity to protect people who provide information or evidence to Police in the course of their enforcing the Public health Orders.
  • Confirmation that information transferred to another agency because it is ‘necessary to do so for the purposes of protecting the health or welfare of members of the public during the COVID19 pandemic’ would not include information transferred to Police with the purpose of issuing a Penalty Infringement Notice or Court Attendance Notice.

Update 23 Aug '21: the Police Commissioner has responded to our letter, suggesting that we make a GIPA request for the information we requested, so that's what we've done. Stay tuned for the outcome.

NSWCCL is investigating concerns that a recent health order appears to remove our common law privilege against self-incrimination. We have written to the Police Commissioner to seek more information about what's happening on the ground in order to develop our response.

The health order

Our concerns relate to Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 as amended to commence at 5pm on 7 August 2021, made by Minister Hazzard under s. 7 of the Public Health Act 2010 (PHA). 

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Concerns remain over incarcerated people's wellbeing during the pandemic

In June 2020, NSWCCL raised concerns about the physical safety of people in prison during the pandemic, given the difficulty of social distancing within a prison environment.

While it is reassuring that, to date, the number of COVID-19 cases in custodial settings has been limited, we remain concerned.

Firstly, we have ongoing concerns about inmate safety and the risk of rapid transmission of COVID should it make its way into prisons. For example, it has been reported to us that in a wing of about 200 at Cessnock, there is no social distancing, inmates do not wear masks, inmates remain unvaccinated and jabs have not been offered to some inmates.

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Police must not obstruct Legal Observers

Recent incidents in Sydney indicate that NSW Police don't uniformly understand and respect the role of Legal Observers - that must change.

Police have obstructed Legal Observers; instructed them to direct protestors; directed one to stop filming; and questioned their presence at a protest. 

In the absence of any police misconduct, police should have no concerns regarding the presence of Legal Observers or their recording of events.

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