Legal experts lobby Premier for less punitive approach to COVID-19

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A retired judge and more than 100 legal,civic and political leaders have signed a letter to the NSW Premier warning that “we cannot fine our way out of the pandemic”,and urging a less punitive approach to fighting the COVID-19 outbreak.

NSW Police said on Wednesday it had issued nearly 25,000 fines for breaches of the public health order in the month since August 16,when it set community policing aside to launch Operation Stay at Home. This comes as the curfew was lifted in the local government areas of concern on Wednesday.

A police road block in Sydney to check road users’ identification and addresses.

A police road block in Sydney to check road users’ identification and addresses.Brook Mitchell

The letter to Premier Gladys Berejiklian,also sent to Police Minister David Elliott and Customer Service Minister Victor Dominello,calls on the government to reduce the use of policing and fines to ensure compliance.

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

The letter is from the chief executives of the Redfern Legal Centre,the Aboriginal Legal Service,Community Legal Centres NSW and Public Interest Advocacy Centre. It is endorsed by more than 100 people including retired District Court judge Stephen Norrish,QC,law professors,Greens parliamentarians,and the chief executives of Homelessness NSW and Shelter NSW.

It also calls on the government to reduce the monetary amounts of on-the-spot COVID-19 fines,which are significantly higher than other fines at a maximum $5000.

The letter also calls on the state to review and revoke all fines erroneously imposed for lawful outdoor recreation because of reports police are wrongly issuing fines to people who are not actually breaking the public health order - for example,people fined for sitting in a park in a local government area where this is allowed.

Police Commissioner Mick Fuller said at the start of Operation Stay at Home that he would not act against police officers who wrongly issue fines.

The letter says the focus on fines to enforce “complex and difficult to understand” public health laws are disadvantaging vulnerable people,especially from multicultural or Indigenous backgrounds.

“People from culturally and linguistically diverse backgrounds who lack access to accurately translated and culturally appropriate health advice also risk being further disadvantaged,” the letter says.

“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.”

Ms Berejiklian,Mr Dominello and Mr Elliott declined to comment. However,Commissioner Fuller previously toldThe Sun-Heraldthe compliance operation was a “major driver in setting us on a path out of lockdown”,while Health Minister Brad Hazzard said the police were “absolutely invaluable” in fighting the pandemic.

Michael Tooma,managing partner at legal firm Clyde&Co,was not a signatory but agreed with the letter,saying we moved away from prescriptive laws in the work safety context 50 years ago for good reason.

“Rules upon rules that change constantly is known to be ineffective in delivering regulatory outcomes,” Mr Tooma said. “The saying ‘the floggings will continue until morale improves’ comes to mind.”

Professor Mary-Louise McLaws,an epidemiologist at the University of NSW,said too much policing can be detrimental for long-term relationships with the authorities,especially if it did not come with education about the reasons for public health measures.

“The way to get out of the pandemic is to get the public onside,they’re the ones that are the saviours of this,” Professor McLaws said. “If they’re not cooperating,it’s often because they feel disengaged or angry that everything’s not] fairly policed.”

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Caitlin Fitzsimmons is the social affairs reporter for The Sydney Morning Herald and The Sun-Herald.

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