Supreme Courts Rules COVID Fines Invalid as the Penalty Notices Did Not Specify the Offence

The overbearing law enforcement approach to the COVID pandemic, which had a focus on criminalising those who didn’t follow health restrictions, via the widespread imposition of draconian fines that were issued seemingly with no discretion and in the most absurd of circumstances.

Following the passing of the pandemic, as people went back to business as usual, however, many civilians had to deal with these outstanding fines continuing to hang over their heads as the average COVID infringement notice amounted to $1,000,

So, the Redfern Legal Centre (RLC) challenged the legitimacy of COVID fines issued to three clients, who sought declaratory relief from the penalties they were subjected to, in accordance with section 69 of the Supreme Court Act 1970 (NSW), with the outcome likely to affect thousands in NSW.

Brendan Beame, Teal Els and Rohan Pank all claimed that the penalty notice they received failed to fall within the bounds of the meaning of such a notice, which are set out in section 20 of the Fines Act 1996 (NSW) (the Act). Although Pank had his fine dropped prior to the case going ahead.

And on appearing in court last November, the remaining pair sought acknowledgement that the NSW fines administration commissioner couldn’t serve an enforcement notice regarding their fines, that their partial covering of the fines be refunded and that the state pay their court costs.

For the crime of picnicking

Beame received his penalty notice in the sum of $1000 on 6 August 2021 penalty notice, which specified the location and time of the offence, as well as a description of it which read “Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual”.

Offence code 95638 was also listed, which, contained in section 10 of the Public Health Act 2010 (NSW), is the offence of failing to comply with a public health order in section 7, 8 or 9 of the same legislation.

This offence carries maximum penalties of 6 months imprisonment and/or a fine of up to $11,000.

Section 7 of the Public Health Act provides the minister with the power to isolate inhabitants, reduce risks and prevent movement into an area in relation to a health risk. Section 8 can require individuals undertake medical examination, while section 9 deals with authorities posing such health risks.

Brendan’s crime was having a picnic at Bronte with five others, four of whom were from other households. And in an internal review, Beame put it to Revenue NSW in December 2021, that as the notice didn’t specify a specific offence it was “contrary to law”: a claim that was rejected.

The offence of watching kids play  

Els was fined $3,000 on 28 August 2021 over having participated in an outdoor gathering of more than two people at a reserve on Tonbridge Street in Ramsgate, “an area of concern”, on 28 August 2021.

The penalty notice specified offence 97722, which is contrary to section 10, as it relates to a failure to comply with “a direction given by Minister in section 7 order for participating in outdoor gathering”. The notice doesn’t mention the related legislation or specify what the breach was.

Els made two applications for internal review with Revenue NSW in 2021 and 2022. The first stated that she’d been in the park with her child, supervising them exercising with other kids, while the second asserted it was “unfair and unjust” that the notice failed to state what she’d done wrong.

A change of heart

RLC senior solicitor Samantha Lee submitted two affidavits to the court, which included the number of fines issued similar to those of the plaintiffs, and while the defence objected to this, NSW Supreme Court Justice Dina Yehia determined it was relevant during the 29 November 2022 hearing.

These details set out that, in terms of the Els notice, another 162 people were fined $3,000 for “unlawfully participating in outdoor public gathering”, while 32,648 penalty notices were set out in a similar manner to Beame’s notice.

A month prior to proceedings, the defendants, the NSW police commissioner and the NSW fines commissioner, argued the fines were valid, as section 20 of the Act doesn’t require detailing of a specific offence or the legislative provision and what did appear on the notices should suffice.

Yet, on the day prior to court, the defendants agreed the notices were inadequate and the partial payment that Beame and Els had made be refunded, although a declaration about the invalid nature of a specific division of the Act should not be provided, as it would limit issuing any fines under it.

Those declarations

According to Justice Yehia, the question turned to whether the court should make the requested declarations even though the commissioner had conceded he would not be issuing further penalty notices to the plaintiffs and, indeed, the money paid in relation to the fines would be refunded.

“Where the subject notices have been declared invalid, the plaintiffs are plainly entitled to the consequential orders,” her Honour noted, adding that these would provide certainty, vindicate the plaintiffs’ claims, and they’d serve to notify the public of the resulting consequences of the decision.

But, while the justice considered that declarations regarding the notices in question falling outside the bounds of section 20 and the fact the plaintiffs were refunded should be issued, the requested declaration that would find fines can’t be issued under part 3 division 4 of the Act should not.

Reasons of the court

Despite the defence suggesting that the invalidation of the penalty notices under scrutiny ruled out any need to provide reasons, Justice Yehia considered it was necessary to provide, as they’d deliver “certainty in relation to the basis for the invalidity” of the penalty notices.

Section 3 of the Act defines a penalty notice offence as “an offence under a statutory provision for which a penalty notice may be issued”. While, contained in part 3 division 2 of the Act, section 20 states that “the penalty notice offence must be specified in the notice”, along with the fine amount.

Section 22A of the Act then incentives an individual to promptly pay their fine, in order to avoid further liability for wrongdoing in court. Therefore, according to Justice Yehia, its “imperative” that the offence is specified on the notice in order to follow the suggested path to avoid this. 

Another key reason for a detailed offence being laid out in the notice is that section 23 of the Act outlines that the fine amount cannot exceed the maximum penalty triggered by an offence, but this is impossible to verify if the recipient fails to understand which actual offence they’ve breached.

And a further issue is that section 24A outlines how the recipient of a fine can apply to have a decision internally reviewed, however this process is again complicated when the person to submit the review application doesn’t have a clear idea of the offence they’re supposed to have committed.

In respect of section 20, “the statutory context and purpose favours an interpretation whereby the penalty notice offence must be clearly and unambiguously specified in the notice itself”, Justice Yehia made certain.

The broader implications

Justice Yehia first handed down her decision, finding both penalty notices to be invalid, during the November 2022 hearing. Although her full findings weren’t published until 6 April this year.

As a result of her initial decision, over 33,000 COVID fines issued in NSW, or more than half, were revoked last December.

And following the release of her Honour’s findings two weeks ago, Redfern Legal Centre considers the ruling could invalidate the remaining 29,000-odd fines issued during the pandemic.

“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,” RLC senior solicitor Lee said in a statement.

Source:nswcourts.com.au