Final Rejection of Illegal COVID Policing as All Remaining Fines Are Revoked

New South Wales commissioner of fines administration, Scott Johnson, announced on Tuesday, 26 November 2024 that following legal representations made to him and the NSW police commissioner, he’d determined that the remaining 23,539 COVID-19 penalty notices that were issued to the general public in relation to transgressions of the pandemic lockdown rules would be withdrawn, and those already paid will be refunded.

This came after a successful legal challenge by Redfern Legal Centre in respect of three of its clients resulted in their COVID infringement notices having been found invalid due to their content on 29 November 2022.

So, Revenue NSW immediately revoked all the penalty notices issued in a similar unlawful manner, which corresponded to a total of 33,121 COVID fines extinguished later that day. And as the total number issued by NSW police over the pandemic period came to 62,149 fines imposed, that suggests another 5,489 COVID fines have too been withdrawn over the interim since the 2022 ruling.

The significance of all the COVID fines being revoked is that the pandemic was notable for heavy-handed COVID policing, with fines usually amounting to $1,000 issued to civilians in an overly eager manner and in absurd circumstances, as the agency targeted the usual minority groups and poorer areas as is its tendency, when in most circumstances a warning would have sufficed.

The achievement of Redfern Legal Centre, and more recently, with Maurice Blackburn Lawyers having notified its intention to file for a COVID fine class action, is that in triggering the reversal of over $55 million worth of penalty notices, it’s been shown that state authorities weren’t permitted to criminalise the public and extort money during a public health crisis, as these actions were unlawful.

Coming home to roost

“This outcome is the result of a significant and lengthy effort by Redfern Legal Centre, a team of dedicated counsel and Maurice Blackburn,” said Redfern Legal Centre supervising solicitor Samantha Lee. “The goal has always been to seek justice for all people in NSW who were issued with an invalid fine.”

“The impact of COVID fines on marginalised communities and on children was disproportionate, unreasonable, and unjust,” added the head of RLC police accountability practice in her 26 November statement. “Added to this was the unfairness of fines being unclear about what offence the person was alleged to have committed.”

The 29 November 2022 finding of the NSW Supreme Court related specifically to just two COVID infringement notices that weren’t valid, but the finding impacted 33,000-odd more fines, as they didn’t comply with the requirements of a penalty notice as stipulated under section 20 of the Fines Act 1996 (NSW), which requires that the offence be stipulated on it, along with fine amount.

Revenue NSW was further clear on the day of the initial 2022 ruling that while it would be revoking all COVID fines related to it, those who’d already paid would be refunded. However, it further made certain in the immediate wake that it would not be dropping the remaining 29,017 fines.

The 6 April 2023 final findings of Justice Dina Yehia outlined that the bare minimum requirement for a penalty notice is that the offence descriptor is detailed, along with the section that the offence is contained within and then the particular Act that the section that holds the offence is found within.

The bare minimum test was found to hold again in another COVID fine case decided in January this year, which, while being again brought by Redfern Legal Centre, did not have any broader implications for the remaining COVID fines yet to be withdrawn.

As Lee explained in November 2022 following the ruling that invalidated two COVID fines and led to over 33,000 being revoked by Revenue NSW on the day, the outcome really spoke to “the need” for NSW authorities “to properly adhere to the rule of law, even during a pandemic”.

Pesky legals causing problems

“The NSW commissioner of fines administration in consultation with the NSW police commissioner will withdraw all remaining 23,539 COVID-19 penalty notices,” said Revenue NSW in a 26 November statement.

“Around $5.5 million in total will be refunded to individuals who have made full or partial payment of a COVID-19 fine.”

Revenue now stipulates that a total of 36,000 COVID fines were extinguished in response to the first legal challenge in late 2022, which was “on the basis that limited information contained in some penalty notices made it difficult for fine recipients to understand the nature of the offence and did not comply with the specificity requirement of the Fines Act 1996”.

The more than 23,500 remaining COVID fines are now being dropped, the state agency explained, due to the fact that further legal representations were being contemplated in regard to the content of these infringement notices, and, ultimately, the commissioner considers the remaining fines do contain “insufficient details” making them “technically deficient” and of dubious validity.

RLC added this win is due to years of advocacy coming from its police accountability practice, and the community legal centre added that these severe fines carried disproportionate impact upon disadvantaged people, especially “First Nations children, children with cognitive impairments, and children experiencing socio-economic challenges, homelessness and unsafe home environments”.

Extortion of disadvantaged kids

Produced by four academics, the Children and COVID-19  Fines in NSW report was released this year and it concludes that the high-volume issuing COVID fine regime was “unsuitable for achieving positive public health outcomes for children”. And it adds that the imposition of penalty notices is the most common way children come into contact with the criminal justice system.

Three thousand, six hundred and twenty-eight kids were issued with COVID penalty notices during the pandemic period in this state, with more than half of these being $1,000 fines, while some of these kids copped fines of up to $5,000. And this was all despite the maximum fine that a child can normally be issued with amounting to $1,100.

The researchers found disproportionate numbers of First Nations kids, children with cognitive impairments or intellectual disabilities, those experiencing socioeconomic disadvantage, those from unsafe homes, or those kids experiencing homelessness or in out-of-home care were issued with penalty notices.

The report authors recommend that children no longer be issued with infringement notices at all. RLC police accountability lawyer Sam Lee said that her legal centre is now turning its attention towards “the unfairness of the fining system upon children”.

“Redfern Legal Centre and a coalition of other organisations is calling for immediate reform of the NSW fines system, which is oppressive, discriminatory and ineffective when used against children,” the lawyer ended.