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
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
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 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.
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:Read more
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.
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.Read more
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.
The NSWCCL is calling for the disallowance of proposed regulations could that could prevent charities from engaging in important advocacy work.
The regulations would allow the Australian Charities and Not-for-profits Commission (ACNC) to deregister an organisation if it “reasonably believes” its members are likely to commit a summary offence.
We echo concerns expressed by many charities that the regulations could empower the regulator to deregister a charity for attending or promoting protests where minor offences are committed without the charity's knowledge or involvement.Read more