Australia: Supreme Court finds Covid fines illegal

Source: (https://bit.ly/3W7rJ2d)
Thousands of Covid-19 fines worth millions of dollars could be ruled
invalid after two Sydneysiders won a landmark test case in the New
South Wales Supreme Court.
The man and woman claimed their infringement notices were issued
in such vague terms they could not be legally enforced and would be
difficult, if not impossible, to challenge in front of a magistrate.
On Tuesday morning, barrister David Kell SC for the Commissioner
of Police told the Supreme Court the pair's Covid penalty notices
would no longer be enforced.
'These two notices do not sufficiently state or describe the offences
in general terms,' Mr Kell said.
The two claimants, Brenden Beame and Teal Els, will have their
fines refunded. A fine issued to a third claimant, Rohan Pank, had
already been repaid.
The ruling could set a precedent that sees many of more than 45,000
unpaid penalty notices for Covid-related public health order breaches
in NSW withdrawn.
Thousands of Covid-19 fines worth millions of dollars could be ruled
invalid after a test case in the NSW Supreme Court was successful.
A man and woman claimed their Covid infringement notices were
issued in such vague terms they could not be enforced and would be
difficult, if not impossible, to legally challenge. Bondi residents
are pictured out exercising in September last year surrounded
by police officers
Kate Richardson SC, for the claimants, said there were 32,648
fines - totalling almost $33million - issued for the same reason as
that given to Mr Beame so 'in all likelihood' they too would be
declared legally invalid if challenged.
She has asked Justice Dina Yehia to publish detailed reasons for
the fines being declared invalid to make it 'absolutely plain' why
they were withdrawn.
'This is a case that has ramifications beyond Ms Els and Mr
Beame,' Ms Richardson said.
Ms Els was fined $3,000 for unlawfully participating in an outdoor
public gathering.
A class action in NSW could now go ahead and similar law suits
would likely be pursued in other states. There were 19,000 fines
handed out in Victoria for breaches of Covid lockdown laws, and
tens of thousands across the rest of Australia.
Redfern Legal Centre ran the case against the NSW Police
Commissioner and Commissioner of Fines Administration on behalf
of Mr Beame and Ms Els.
Mr Pank had his $1,000 fine withdrawn in July after the
administrative law court action was launched.
When the matter was before in court in July it was heard if the
claims succeeded fines worth millions of dollars issued across NSW
could be invalidated.
Between March 2020 and July this year there were 62,029 Covid
fines issued totalling $56,499,080. As of May, 47,560 fines totalling
$42,269,700 remained unpaid.
Most of the penalty notices were issued at the height of Sydney's
lockdown in August and September last year.
Thousands of those people who were fined requested a review and
as of July this year Revenue NSW had withdrawn 12.6 per cent
of penalty notices.
Police went to the extent of driving through Rushcutters Bay Park
in Sydney's east in March last year as they sought to fine locals
for breaching Covid restrictions. A legal challenge to Covid fines
could set a precedent that sees many of more than 45,000 such
unpaid fines for public health order breaches in New South Wales
withdrawn
Mr Pank was fined for sitting on a hill in a park with his girlfriend
in August 2021 when they were approached by four police officers
while Sydney was in lockdown.
He was within 1km of his home and was told by police he and his
girlfriend had breached a public health order by not actively
exercising.
At the time, interpretations of public health orders were constantly
changing and there was confusion about the meaning of terms such
as 'exercise or recreation'.
NSW Health declared 'sitting for relaxation' was considered to be
outdoor recreation in the days after Mr Pank was fined.
He had sought two reviews of his infringement notice but Revenue
NSW rejected each one, according to Redfern Legal Centre.
Between March 2020 and July 2022 there were 62,029 Covid fines
issued totalling $56,499,080. As of May, 47,560 fines totalling
$42,269,700 remained unpaid
The agency first stated Mr Pank had been told by police he should
not be away from his home without a reasonable excuse.
Next, it claimed Mr Pank breached a public health order by crossing
into the City of Sydney from the Inner West local government area
where he resided.
When Mr Pank had been sitting in the park, outdoor recreation was
permitted within 10km of a person's home with no requirement they
stay within their council boundary.
Samantha Lee, senior police accountability solicitor at the Redfern
Legal Centre, said public health orders changed 71 times between
July and September last year - sometimes twice in one day.
'Everyone was just confused,' she said. 'What we have seen was this
pattern of people being fined not according to law.
'Public health orders were not being applied correctly by police.
What we found was that even Revenue NSW was applying the law
wrongly or not applying the law at all.'
Most of the penalty notices were issued at the height of Sydney's
lockdown in August and September and Revenue NSW is now
seeking they be enforced. Beachgoers not swimming or not
exercising were at one time required to wear a mask
Ms Lee said fines were generally issued to people engaged in
recreation or exercise and for not observing distance rules but some
were for pursuing activities as basic as grocery shopping.
'In most cases people weren't flouting the laws,' she said. 'The laws
were being applied wrongly.'
'The crux of our mater is that these Covid fines are not fines
because they don't satisfy the legislative requirement under the
Fines Act.'
Thousands of those people who were fined requested a revue and
Revenue NSW has withdrawn 12.6 per cent of penalty notices.
There were hundreds of clauses included in ten public health orders
but which of them had allegedly been breached was not specified
in the fines.
For instance, Mr Pank's supposed infringement was covered by
Section 7, 8 and 9 of the orders.
Ms Lee said Covid fines were applied with a strict liability, such
as with parking in a no stopping zone, where no intent had to be
proved.
'These fines required a lot of discretion by police to decide if
someone had an excuse or not,' she said.
'We found that the review system and the police system was not
providing justice to people on the ground and in fact was getting
it all wrong.'
Ms Lee said the Covid infringement notices did not actually stipulate
what someone had allegedly done wrong.
'It doesn't tell you what crime you've committed,' she said. 'For
example, with the gathering fine it just says that you've gathered.
'It doesn't say what you've breached, which then made it impossible
to try and appeal it because you don't know what the police need
to prove and then take it to court.
'We are of the view that's probably why there were so many issued
 - they were so easy to issue because they were so vague.'
There were hundreds of clauses under ten public health orders but
which of them had allegedly been breached was not specified
in the fines. A couple of beachgoers are questioned by a police
officer in August last year.
A disproportionate number of fines was issued to residents in low
socioeconomic areas during the height of lockdowns.
'The problem with fines is they're not means tested and therefore
punish people more for the same offence if they're on a lower
income,' Ms Lee said.
Between July 2020 and October last year there were 1,536 fines
totalling $1,366,380 issued to Mount Druitt residents and 1,291
worth $1,157,680 at Liverpool - both in Sydney's west - compared
with just 25 ($24,000) at beachside Waverley.
Ms Lee said there were more police patrolling the areas where
the most fines were issued and more restrictive orders in place
in some of those suburbs.
'Those people were out and about more because they had to get
to work,' she said. 'A lot of them couldn't work from home.'
A letter Revenue NSW sent to Mr Pank on July 15 did not properly
explain why his fine had been withdrawn after it had been reviewed
for the third time.
Between July 2020 and October last year there were 1,536 fines
totalling $1,366,380 issued to Mount Druitt residents and 1,291
worth $1,157,680 at Liverpool compared with 25 ($24,000) at
Waverley. Stock image
'We re-examined your request of Fine 4066740792 for 'Fail to
comply with noticed direction in relation to section 7/8/9 -
COVID-19 - Individual' on 07 August 2021,' the agency wrote.
'Outcome of our review: We re-examined the fine using our
Review Guidelines and after further consideration, we have
decided to cancel the fine.'
Ms Lee said she did not think it was a coincidence that Mr Pank's
fine was withdrawn after his court papers were filed.
'Mr Pank's fine should have been withdrawn on the first review
and it should never have been issued. Police got it wrong and
then Revenue got it wrong.'
Ms Lee encouraged anyone who had been penalised for similar
reasons to come forward to seek legal advice and a review of
their fine.