Lawyers issue open letter to NSW Premier Gladys Berejiklian

Lawyers issue open letter to NSW Premier Gladys Berejiklian

16 September 2021 By Emma Ryan
NSW Premier Gladys Berejiklian

An open letter addressed to the NSW Premier endorsed by over 100 members of the legal, academic, and political profession has called on the state government to revoke what they’re dubbing “unlawful COVID-19 fines”.

In an open letter addressed to NSW Premier Gladys Berejiklian, dated 15 September 2021, Joanna Shulman, chief executive officer at Redfern Legal Centre; Nadine Miles, acting chief executive officer at Aboriginal Legal Service (NSW/ACT); Tim Leach, executive director at Community Legal Centres NSW; and Jonathon Hunyor, chief executive officer at Public Interest Advocacy Centre urged the government to rethink its current approach to COVID-19-related fines.

Instead, the letter, which was endorsed by over 100 signatories (full list below) calls for greater investment in community education and engagement strategies, and enhanced social and economic measures to support communities already in crisis.

“The organisations and individuals that have signed this open letter are concerned about the impact of COVID-19 fines on vulnerable people and communities in NSW,” the open letter begins.

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“We call on the government to reduce the use of policing and fines to ensure compliance with public health orders and invest more heavily in non-punitive approaches.

The letter continued: Many communities in NSW are facing dire financial consequences as a result of the ongoing COVID-19 crisis. While fines are a common mechanism for enforcing the law, we are very concerned by the emphasis that has been placed on them as a means for securing compliance with public health orders.

These new public health orders have been introduced and amended at a rapid pace. Their legal elements are complex and difficult to understand. This has inevitably resulted in confusion among some members of the public about their rights and responsibilities, with a disproportionate impact on vulnerable community groups.

Data from Revenue NSW shows that 10,232 fines totalling $9,402,500 had been issued for breaches of COVID-19 rules between March 2020 and July this year. Police issued $7,839,500 of these with a total of $8,922,500 in fines issued to individuals. In July this year, 6,815 fines were issued – more than three times the total amount issued last financial year, the data showed.

‘We cannot end the pandemic with fines’

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Speaking on behalf of Redfern Legal Centre, Ms Shulman said that the open letter comes off the back of Redfern Legal Centre assisting with multiple cases where people have been incorrectly issued a $1000 or $3000 fine for an offence under the Public Health Act 2010 for failure to comply with a direction.

“It is clearly unjust to leave it up to individuals to appeal these wrongly issued COVID-19 fines. If a government body has made a mistake and not issued fines according to law, then it should rectify that mistake. People are already suffering from the economic impact of COVID-19 – and risk being plunged further into debt because of an error in administering the law, she said.

Ms Miles, speaking on behalf of Aboriginal Legal Service NSW/ACT, added: “The ALS is assisting people who’ve been fined, or threatened with fines, for things like helping a mentally ill family member get groceries and driving a family member to work in a remote town without public transport.

“Most people want to do the right thing and protect themselves and their communities, but there’s no fine high enough to stop people from seeking out their essential needs if they’re not being provided for. It’s on the NSW government to provide Aboriginal communities with practical support and clear information on the ever-changing COVID rules.”

Mr Leach, on behalf of Community Legal Centres NSW, said: “Police targeting people with high fines is not the road out of this pandemic.

A public health response grounded in care and wellbeing – not fear and coercion – will strengthen our capacity to respond together. Our communities need to be supported to stay safe, which must include income support and secure housing for all.”

Finally, Mr Hunyor, on behalf of Public Interest Advocacy Centre, said: “Punitive approaches to public health orders risk further alienating people – especially those already disadvantaged or marginalised  at a time we need to be working together.”

“Government should focus its efforts on working with the community. Rolling out police and doling out fines won’t build the trust we need for a sustained commitment to public health orders.

The open letter in its entirety is as follows:

Dear Premier,

A call to address unjust COVID-19 fines

The organisations and individuals that have signed this open letter are concerned about the impact of COVID-19 fines on vulnerable people and communities in NSW.

We call on the Government to reduce the use of policing and fines to ensure compliance with public health orders and invest more heavily in non-punitive approaches.

Many communities in NSW are facing dire financial consequences as a result of the ongoing COVID-19 crisis. While fines are a common mechanism for enforcing the law, we are very concerned by the emphasis that has been placed on them as a means for securing compliance with public health orders.

These new public health orders have been introduced and amended at a rapid pace. Their legal elements are complex and difficult to understand. This has inevitably resulted in confusion among some members of the public about their rights and responsibilities, with a disproportionate impact on vulnerable community groups.

People from culturally and linguistically diverse backgrounds who lack access to accurately translated and culturally appropriate health advice also risk being further disadvantaged.

The excessive use of fines against Aboriginal and Torres Strait Islander people and communities in NSW also has the potential to further entrench disadvantage and exacerbate negative relationships between Aboriginal communities and the police.

We urge the Government to reduce reliance on policing and fines as a predominant strategy for achieving compliance with COVID-19 public health orders.

We instead encourage greater investment in community education and engagement strategies, and enhanced social and economic measures to support communities already in crisis. This will engender greater trust in contract tracers and authorities enforcing public health advice.

We call on the Government to reduce the monetary amounts of COVID-19 fines.

The cost of COVID-19 fines are significant, especially compared to other fines. People experiencing disadvantage already suffering from the economic impact of COVID-19 risk being plunged further into debt.

The appeals and financial hardship review processes relating to fines are insufficient to address these concerns – they require an understanding of complex and changing legal rules, knowledge of the right to seek review, prompt action within tight timeframes and language and advocacy skills, which many people just don’t have.

We call on the Government to review and revoke all fines erroneously imposed for lawful outdoor recreation.

We are concerned that many people have been incorrectly issued a $1,000 or $3,000 fine by NSW Police for undertaking lawful outdoor recreation activities including sitting in a park by themselves, or with one other person or household members, eating in an outdoor public space by themselves, or with one other person or household members, and sitting alone in a car.

The Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order allows for a person (excluding areas of concern) to leave their place of residence to undertake ‘exercise or outdoor recreation’ with one other person or members of the same household within a 5km radius or within their local government area.

Up until the 12 August 2021, it also allowed those in areas of concern to undertake recreation within 5km of their place of residence. The NSW Government website states: ‘Recreation includes outdoor leisure activities such as sitting for relaxation, or to eat, drink or read outdoors.’

We cannot fine our way out of the pandemic.

We need alternatives to the widespread use of fines to ensure compliance with the public health orders. This includes better social and economic support for struggling communities, more investment in community engagement and education and the distribution of culturally appropriate materials and messages.

Such an approach will be more effective in building support for important public health measures that seek to protect our community.

Yours sincerely,

Joanna Shulman, chief executive officer at Redfern Legal Centre; Nadine Miles, acting chief executive officer at Aboriginal Legal Service (NSW/ACT) Ltd; Tim Leach, executive director at Community Legal Centres NSW; and Jonathon Hunyor, chief executive officer at Public Interest Advocacy Centre.

The full list of signatories endorsing this letter are as follows:

1. Nadine Miles, A/chief executive officer, Aboriginal Legal Service (NSW/ACT) Ltd
2. Joanna Shulman, chief executive officer, Redfern Legal Centre
3. Tim Leach, executive director, Community Legal Centres NSW
4. Jonathon Hunyor, chief executive officer, Public Interest Advocacy Centre
5. Stephen Norrish QC
6. Usman Naveed, solicitor, Aboriginal Legal Service (NSW/ACT)
7. Mark Patrick, principal solicitor, Australian Centre for Disability Law
8. Felicity Graham, barrister, Black Chambers
9. Brinda Thanakrishnan, team manager, CBA
10. Arlia Fleming, centre director, Central Tablelands and Blue Mountains Community Legal Centre
11. Luke McNamara, professor and co-director, Centre for Crime, Law and Justice, UNSW Sydney
12. Dr Annie Cossins, Honorary Professor, Centre for Crime, Law and Justice, UNSW Sydney
13. George (Kev) Dertadian, senior lecturer in Criminology, Centre for Crime, Law and Justice, UNSW Sydney
14. Jason Moore, PhD candidate, Centre for Crime, Law and Justice, UNSW Sydney
15. Mehera San Roque, associate professor, Centre for Crime, Law and Justice, UNSW Sydney
16. Vicki Sentas, senior lecturer, Centre for Crime, Law and Justice, UNSW Sydney
17. Tamar Hopkins, PhD student, Centre for Crime Law and Justice, UNSW Sydney
18. Kate Bonser, graduate lawyer, Chalk & Behrendt Lawyers and Consultants
19. Ingrid Rikkert, regional accreditation coordinator, CLCNSW
20. Jill Hunter, professor, faculty of law and justice, UNSW Sydney
21. Julie Stubbs, honorary professor, faculty of law and justice, UNSW Sydney
22. Jane Wangmann, senior lecturer, faculty of law, University of Technology Sydney
23. Dr Elyse Methven, senior lecturer, faculty of law, University of Technology Sydney
24. Thalia Anthony, professor, faculty of law, University of Technology Sydney
25. Stacy Treloar, chief executive officer, Far West Community Legal Centre & Warra Warra Legal Service
26. Julia Davis, senior policy & communications officer, Financial Rights Legal Cent
27. Mark Holden, solicitor, Financial Rights Legal Centre
28. Larissa Baldwin, First Nations Justice campaign director, GetUp!
29. Belinda Lowe, head of strategic communication, Grata Fund
30. Isabelle Reinecke, founder and executive director, Grata Fund
31. Katherine McKernan, chief executive officer, Homelessness NSW
32. Ruth Barson and Adrianne Walters, legal directors, Human Rights Law Centre
33. Debi Fisher, acting principal lawyer, Hume Riverina Community Legal Service
34. Bronwyn Ambrogetti, managing solicitor, Hunter Community Legal Centre
35. Peter Stapleton, individual
36. Roslyn Cook, centre director, Inner City Legal Centre
37. Janene Cootes, executive officer, Intellectual Disability Rights Service
38. Chris Cunneen, professor of criminology, Jumbunna Institute for Indigenous Education and Research, UTS
39. Alison Whittaker, senior researcher, Jumbunna Institute for Indigenous Education and Research, UTS
40. Chris Povey, chief executive officer, Justice Connect
41. Angela Cheng, solicitor, Legal Aid NSW
42. Robert Pelletier, executive officer, Macarthur Legal Centre
43. Lotus Rana, mentoring and transition Officer, Macquarie University
44. Vasili Maroulis, managing principal solicitor, Marrickville Legal Centre
45. Justin Abi-Daher, assistant principal solicitor, Marrickville Legal Centre
46. Bettina Cooper, Aboriginal financial counsellor, Mob Strong Debt Help – Financial Rights Legal Centre
47. George Newhouse, CEO and principal solicitor, National Justice Project
48. Nicole Jenkins, centre manager, Northern Rivers Community Legal Centre
49. Peter O'Brien, solicitor, O'Brien Criminal and Civil Solicitors
50. Elle Triantafillou, solicitor, O'Brien Criminal and Civil Solicitors
51. Oliver Creagh, paralegal, O'Brien Criminal and Civil Solicitors
52. Grace Gooley, solicitor, Public Interest Advocacy Centre
53. Kamani, lawyer (volunteer), Redfern Legal Centre
54. Joe Murphy, client intake supervisor, Redfern Legal Centre
55. Luke Carr, solicitor, Redfern Legal Centre
56. Sabina Wynn, general manager, Seniors Rights Service
57. John Engeler, CEO, Shelter NSW
58. Justine O'Reilly, principal solicitor, Shoalcoast Community Legal Centre
59. Kathryn Grimshaw, generalist and law reform solicitor, Shoalcoast Community Legal Centre
60. Dr Ebony Birchall, senior associate, Slater and Gordon
61. Yvette Vignando, CEO, South West Sydney Legal Centre
62. Belinda Smith, associate professor, Sydney Law School
63. Ben Boer, emeritus professor, Sydney Law School
64. Jason Chin, lecturer, Sydney Law School
65. Nicole Graham, associate dean (Education), Sydney Law School
66. Irene Wardle, educator, Sydney University
67. Lynette Riley, sssociate professor, Sydney University
68. Mahmoud Al Rifai, ethnocultural officer, Sydney University Law Society
69. Wendy Hu, President, Sydney University Law Society
70. Abigail Boyd MLC (Legislative Council), The Greens
71. Jenny Leong MP member for Newtown, NSW Parliament, The Greens
72. Cate Faehrmann MLC (Legislative Council), The Greens
73. David Shoebridge MLC (Legislative Council), The Greens
74. Jamie Parker MP (Legislative Assembly), The Greens
75. Tamara Smith MP (Legislative Assembly), The Greens
76. Jane Sanders, principal solicitor, The Shopfront Youth Legal Centre
77. Catherine Smyth, lecturer, The University of Sydney
78. Joe Alvaro, The University of Sydney
79. Amanda Niland, lecturer in early childhood education, University of Sydney
80. Dr Judith A Cashmore, professor of socio-legal research and policy, University of Sydney
81. Tanya Mitchell, senior lecturer, University of Sydney
82. Carolyn McKay, senior research fellow, University of Sydney Law School
83. Louise Boon-Kuo, senior lecturer, University of Sydney Law School
84. Simon Rice, OAM, Kim Santow chair of law and social justice, University of Sydney Law School
85. Alex Steel, professor of law, UNSW
86. Eileen Baldry, DVC EDI and professor of criminology, UNSW
87. Karen Daniels, PhD Candidate, UNSW CCLJ
88. Simone Rowe, research associate; PhD Candidate, UNSW; CCLJ
89. Julia Quilter, associate professor, UOW
90. Katherine Biber, professor of law, UTS
91. Penny Crofts, professor, UTS
92. Sophie Russell, PhD student, UTS Law
93. Patrick O'Callaghan, principal solicitor, Western NSW Community Legal Centre
94. Dr Jenni Whelan, director, Western Sydney University Justice Clinic
95. Roger West, director and principal consultant, WestWood Spice
96. Christine Robinson, coordinator, Wirringa Baiya Aboriginal Women's Legal Centre
97. Amy Wright
98. Betty Luu
99. Clare Petre
100. Dr G Thanakrishnan
101. Ellen Dimanoski
102. Lauren Miles
103. Sinem Kirk
104. Timothy Rayner
105. Troy Moffat

Lawyers issue open letter to NSW Premier Gladys Berejiklian
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