Letters

Vaccine passport concerns

UPDATE 1 October: The Secretary of NSWCCL met with representatives of the Department of Customer Services yesterday (31 Oct 21) and received assurances about some of the matters raised in our letter.

Significantly the vaccination certificate as part of the Service NSW check in tool (QR code) is just one option to use as entry to hospitality venues and events. For example, vaccinated residents of NSW will be able to show the vaccination certificate on their phone and use paper alternatives. It is envisaged that the venue will only register a tick without any sensitive health information being imparted.

Medical exemptions will be catered for and children under 16 will not require any evidence for entry to venues otherwise accessible by them.

Other assurances were given in regard to certain privacy safeguards including non-retention or collection of data which will only be held on the personal device and the temporary nature of the scheme. Push of data from the Australian Immunisation Register remains of concern, however detailed information about the scheme will be available next week for greater scrutiny ahead of its introduction.

At the National Cabinet meeting on 17 September 2021 all states and territories agreed to include people's COVID-19 vaccination status in their check-in apps, meaning the apps will act as vaccine passports. 

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Incarcerated people are at risk as COVID spreads in prisons

Urgent action is required in response to the news of the worsening outbreak of COVID cases in prisons and the tragic death of a NSW youth corrections officer. 

We understand from media reports on 17 September 2021, that more than 40 NSW corrections staff were Covid-positive (not including staff at the privately-run Parklea prison, where the outbreak began) as well as more than 300 inmates across the prison system also testing positive, including 84 First Nations people. 

The risk we flagged in August, of Covid spreading rapidly in prisons, is becoming more likely by the day and it is crucial that all necessary measures be taken immediately to mitigate the risk of this happening. 

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Concerns over policing practice and equipment

We are increasingly concerned with the policing practice of the NSWPF as it responds to the pandemic. Watching the escalation of violence in Victoria, we are also concerned with the possible possession and use of pepper pellets and hard squash-ball like missiles.

Disproportionate police response

In a series of recent media clips members of the NSWPF have approached and/or arrested several young men visibly of racial and/or ethnic minority backgrounds. In these incidents, the NSWPF have alleged the young men have not been wearing face masks. Police intervention of this nature directly undermines the common law principle that arrest is indeed a sanction of last resort.

Possession and use of pepper pellets etc

Prompted by recent events in Victoria, the NSWCCL is alarmed about the possible possession and use by the NSWPF of pepper pellets and hard squash-ball like missiles in the community.

NSWCCL wrote to Commissioner Fuller to urge him to ensure that NSW Police use the powers granted to them under the Public Health Act 2010 in a manner that respects human rights. We also asked whether equipment similar to that seen deployed in Victoria is being held in reserve in NSW and in what circumstances we are likely to see it used.


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.