All COVID-19 fines declared invalid by Supreme Court of New South Wales

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Penalty notice offences must be set out clearly in the notice itself, as provided by the Fines Act 1996 (NSW).
Australia Coronavirus (COVID-19)
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The New South Wales government has been urged to drop the remaining 29,017 COVID-19 related fines, after the Supreme Court published a judgment detailing the minimum requirements for fines.

The decision clarifies what a fine must contain for it to be considered valid, and accordingly has been considered by advocates to call the remaining fines into question due to their apparent vagueness.

Redfern Legal Centre filed a test case in July 2022, representing two plaintiffs who submitted that their fines were invalid because they lacked sufficient detail.

The proceedings initially involved three plaintiffs: Mr Rohan Pank, Mr Brendan Beame and Ms Teal Els, with the defendants being the Commissioner of Police and the Commissioner of Fines.

However, on the date the case was filed with the court, Pank's $1,000 fine for allegedly failing to comply with a public health order was withdrawn by Revenue NSW.

Pank was sitting in a park, within 1km of his Newtown home, when he was fined by police due to not 'actively' exercising.

This was despite the government later clarifying that this was an acceptable form of outdoor recreation, and Pank submitting two prior internal reviews which were knocked back.

The remaining two cases proceeded before the court, with the NSW Supreme Court ultimately making declarations that the Penalty Notices issued to the two plaintiffs in the case were invalid.

Els was fined $3,000 for 'unlawfully participating in an outdoor public gathering', whereas Beame's fine description was 'Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual'.

Lawyers for the government conceded that fines with the description: 'Fail to comply with noticed direction in relation section 7/8/9 – COVID-19' (both individual and company) were too vague.

This led to Revenue NSW cancelling 33,000 fines (worth roughly $30 million), with fines that were already paid refunded.

However, action has yet not been taken on the remaining 29,017 fines including those with the description 'unlawfully participating in an outdoor public gathering'.

The Court found that it is imperative that penalty notice offences are set out clearly in the notice itself, as provided by the Fines Act 1996 (NSW).

In the present case, it noted that the short description identifying the offence was insufficient to meet the requirements of the Act, in each case.

It found that the penalty notices not only failed to identify the offence, but also did not correctly identify a single element of the relevant offence.

A penalty notice must contain the offence 'clearly and unambiguously'.

The relevant fines were found to provide information that may have merely given the recipient a clue from which they might be able to deduce (using material outside the notice) the offence, which was not sufficient.

It also held that the offence creating provision was a bare minimum requirement of a notice.

In her judgement, Her Honour Dina Yehia: "How then were the plaintiffs to know what offence they had committed or to make an informed decision as to whether to pay the fine or elect to have the matter determined by a court?"

Therefore, according to the Supreme Court ruling, for a fine to be valid it must clearly state the relevant offence and make reference to the specific act or otherwise law alleged to be broken.

Samantha Lee, Redfern Legal Centre Police Accountability Solicitor stated: "This judgment calls into disrepute all remaining COVID-19 fines because the fines do not meet the legal requirement to be a valid penalty notice."

"The government must now do the right thing and withdraw all COVID-19 fines that were issued, including withdrawing those offences for which individuals elected to take to court, any Work and Development Orders and reimburse fines already paid.

This case is not about COVID-19 or about public health orders. It is about ensuring the rule of law is adhered to even in a time of crisis." she continued.

It was previously revealed that more than 929 people were placed on 'Work and Development Orders' ('WDOs') in relation to invalid COVID fines.

This scheme allows for those who have received a fine to do unpaid work, take a course, or receive treatment, instead of actually paying the fine.

Whilst those who paid the fines previously withdrawn were refunded, it has still not been ruled whether those who participated in WDOs would be reimbursed for their unpaid labour.

Despite the ruling's potential effect on the remaining fines, the NSW government has thus far declined to withdraw the remaining fines.

The Public Health Act 2010 (NSW) provides state officials with the power to make enforceable directions for the purposes of addressing public health risks and the spread of infectious diseases.

The Act allows for 'public health orders' to be created which may contain fineable offences.

Multiple orders were made throughout the varying stages of the pandemic, reflecting shifting restrictions largely based on case numbers and severity of the situation.

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