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.Read more
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
In the light of news that at least one guard has tested positive, NSWCCL is renewing its calls for refugees to be released from detention immediately.
Last week news broke that a guard at the Melbourne Immigration Transit Accommodation (MITA), had tested positive for COVID-19 — the Delta variant. MITA is one of the larger detention centres for asylum seekers and non-citizens who have had their visas cancelled under the character test provisions of the Migration Act.Read more
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 websiteRead more
NSWCCL condemns the report of the NSW Legislative Council inquiry into Mark Latham and One Nation’s so-called ‘Parental Rights’ Bill (the Education Legislation Amendment (Parental Rights) Bill 2020) released on the 7th of September. NSWCCL made a submission and gave oral evidence to the inquiry.
At the time, we said “NSWCCL considers that the Bill should not be passed. Not a single aspect of the Bill improves upon the law as it currently stands in NSW. Moreover, the Bill is an appalling contribution to public debate and education policy in this State.… The Bill:Read more
On Thursday, in a blatant and cynical attempt to avoid transparency, the Government introduced a Bill that gives National Cabinet the status of a 'Cabinet' - meaning that the PMO can now keep its deliberations secret. This nullifies a recent finding by the Administrative Appeals Tribunal (AAT) that the ‘National Cabinet’ was not a cabinet in any real sense of the word, so key documents should be released.Read more
The Guardian reports on an app being trialled in South Australia that uses facial recognition and geolocation to enforce home quarantine during the Covid-19 pandemic.
Our Secretary Michelle Falstein told the Guardian that the lack of primary legislation underpinning apps of this kind has made it difficult to assess how privacy concerns are managed, how long data is being kept, who it’s shared with, and how it is stored.Read more
NSWCCL and the Sydney Institute of Criminology have made a joint submission expressing concern about the Commonwealth’s continuing detention scheme for terrorist offenders and its lack of compatibility with human rights law and fundamental principles of criminal law.
We argue that serious consideration should be given as to whether the scheme is necessary. If the scheme is to continue, we argue that the scheme should be amended in substantial ways to enhance (to the extent possible) its compatibility with human rights law.Read more
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.
In a welcome landmark victory in the NSW Land and Environment Court today, the Environmental Protection Agency (EPA) has been ordered to take action on climate change. This is the first time a government organisation has been compelled to act on climate change in accordance with a statutory duty in Australia.
The court found that the EPA's statutory duties include a duty to develop objectives, guidelines and policies to ensure the protection of the environment from climate change, and that it had not fulfilled its duty to protect the state’s environment.
It may come as a surprise to many that the EPA currently does not have specific policies in place to mitigate greenhouse gas pollution, one of the most dangerous forms of pollution in the long term.Read more