If two Sydney residents prevail in a historic test case before the New South Wales Supreme Court, thousands of Covid-19 fines totaling millions of dollars could be deemed unconstitutional.
The man and woman contend that their infringement notices were issued in such ambiguous terms that they could not be properly enforced and would be challenging them before a magistrate would be difficult, if not impossible.
If they succeed in their legal activities, it may serve as a precedent for the withdrawal of many of the more than 45,000 outstanding fines for violations of public health orders connected to Covid in NSW.
Now that a class action is possible in NSW, similar lawsuits will probably be brought in other jurisdictions as well.
Tens of thousands of fines were issued throughout the rest of Australia, with 19,000 being issued in Victoria.
On behalf of Brenden Beame and Teal Els, Redfern Legal Center is prosecuting the lawsuit against the NSW Police Commissioner and Commissioner of Fines Administration.
The $1,000 fine imposed on a third plaintiff, 30-year-old Rohan Pank, has already been withdrawn after the administrative law court case was initiated late last week.
The case was briefly discussed in court on Tuesday when it was learned that if the allegations were successful, millions of dollars in fines given around NSW may be revoked.
There were 62,029 Covid fines assessed between March 2020 and this month, amounting to $56,499,080 in total. 47,560 fines totaling $42,269,700 were still due as of May.
The majority of the penalty notices were issued in August and September, at the height of Sydney’s lockdown, and Revenue NSW is now requesting that they be enforced.
A review was requested by thousands of those who were punished, and Revenue NSW has dropped 12.6% of the penalty notices.
The three plaintiffs, who were represented by Redfern Legal Centre, demanded that whatever money they had already paid in penalties and subsequent enforcement orders be repaid.
In August 2021, while Sydney was on lockdown, Mr. Pank and his girlfriend were sitting on a hill in a park when four police officers approached them.
They were fined for their behavior.
Police informed him that he and his girlfriend had disobeyed a public health order by not vigorously exercising when they were within 1 mile of their home.
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.
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.’
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.’
Under 10 public health rules, there were hundreds of paragraphs, but the fines did not specify which of them had allegedly been broken.
The provisions of Sections 7, 8, and 9 of the orders were violated by Mr. Pank.
According to Ms. Lee, Covid fines were imposed under strict responsibility, where no proof of intention was necessary, such as while parking in a no-stopping zone.
Police had to apply a lot of judgment in determining whether or not someone had an excuse while issuing these fines, she claimed.
“We discovered that the review system and the police system was not delivering justice to individuals on the ground and was actually doing everything wrong,” the researchers wrote.
According to Ms. Lee, the infringement notifications did not actually specify what had supposedly been done wrong.
She claimed, “It doesn’t tell you what crime you’ve committed.
“For instance, the collecting fine simply states that you have gathered.
Because it is unclear what you violated, it is impossible to try to challenge the decision because you are unaware of the evidence the police will need to present in court.
Because they were so easy to issue due to their ambiguity, “We are of the opinion that’s probably why there were so many issued.”
During the height of the lockdowns, a disproportionately high amount of fines were imposed on people of poor socioeconomic neighborhoods.
Because fines are not means tested, they punish people more severely for the same offense if they have a lower income, according to Ms. Lee.
Residents of Mount Druitt received 1,536 fines costing $1,366,380 between July 2020 and October of the previous year, 1,291 of which were valued $1,157,680 at Liverpool and 25 ($24,000) at Waverley.
According to Ms. Lee, there are more police officers monitoring the suburbs where the most penalties are given out, and some of those suburbs have more stringent laws in place.
However, she believes that the third problem is that those individuals were more active since they had to leave for work. Many of them were unable to work from home.
Mr. Pank received a letter from Revenue NSW on July 15 that did not adequately explain why his fine had been removed following a third review.
The agency said that on August 7, 2021, it had “re-examined your request of Fine 4066740792 for “Fail to comply with noticed direction in regard to section 7/8/9 – COVID-19 – Individual.”
Using our Review Guidelines, we reexamined the fine, and after careful analysis, we have decided to void it.
The fact that Mr. Pank’s fine was reduced after his court papers were submitted, according to Ms. Lee, is not merely a coincidence.
“In my opinion, Mr. Pank’s fine ought to have been revoked at the outset and never issued.
“Revenue made a mistake, then the police did.
Anyone who has been fined for such offenses is urged by Ms. Lee to come forward and request legal counsel and a reconsideration of their fine.
For further instructions and a hearing on November 29, the case will return to court on August 26.
After it was withdrawn, a hearing will be held to determine who will pay Mr. Pank’s fees.