COVID Fines

Were they a 'fair cop' or the work product of power-drunk police?

In today’s post I am going to talk about the many tens of thousands of Covid fines that were issued across countries like Australia, New Zealand and the United Kingdom. Most were given to people for little more than walking their dog without a mask (which the police minister had said was allowed). Others were fined for being slightly more than 5km from their home. Driving to work a little earlier than usual became an expensive breach of curfew. And almost 3,000 school children as young as 10 became new sources of State revenue with fines up to $5000 for the ambiguous and uninformative “not complying with noticed direction in relation to sections 7/8/9.” This last and unspecific item will be be discussed further in the remainder of this article, as it single-handedly accounted for over 30,000 of the fines issued, and now withdrawn, in one state of Australia - New South Wales (NSW). And it would be the downfall of almost all of the Covid fines issued by the NSW police.

Were COVID-related on-the-spot fines a ‘fair cop’?

Or were they the sinister work product of power-tripping punishment-fixated police officers?

Consider:

Police became notorious during the lockdowns for the variety of heavy-handed approaches that were used to prosecute (some might say persecute) covid restrictions.

In this video police arrested a man for walking alone on a beach. Police were physically agressive and the man says he was treated like an animal. Police later sought to justify their heavy-handedness with the claim that the man had been ‘argumentative’.

In this video police with a loud hailer harass socially distanced people in a large public green space who the government recommendations of the day said were allowed to be outdoors to get exercise for short periods.

In this video police fine four gentlemen for exercising on outdoor gym equipment.

In this video the police officer was filmed threatening to fabricate a public disorder offence simply so that he can arrest a member of the public.

In this video police arrest a pregnant woman for incitement for sharing a facebook post about a lockdown protest. Police drew the matter out for almost two years until the case finally came to court - at which point they withdrew the charge on the grounds that prosecution was not in the public interest.

In the case we will discuss today:

Ms Teal Els took her young son to a local park on Tonbridge Street, Ramsgate on the 1st of September, 2021 so that the child could have some outdoor time on the children’s play equipment, as was permitted by the public health orders at the time. Ms Els became engaged in a conversation with another mother while their two children played together. They were approached by police and Ms Els details were collected. Police alleged that Ms Els was participating in an outdoor public gathering of more than two persons in an ‘area of concern’.

FINED: Unlawfully participate in outdoor public gathering - Area Of Concern - individual: $3,000.

Mr Brenden Beame was a cancer sufferer who had left his home near Bronte Beach in August 2021 for a recreational walk. During that walk Mr Beame passed one of his neighbours, they greeted each other and paused approximately five or six feet apart for a brief conversation. They were observed by police who approached and demanded their details. In spite of protestations to the contrary, police went on to allege that Mr Beame had been involved in a gathering for a picnic with 5 other persons from 4 separate households in a public place.

FINED: Fail to comply with noticed direction in relation to sections 7/8/9 - COVID-19 - individual: $1,000.

Mr Rohan Pank was sitting on a hill in a public park with his girlfriend in August 2021 when they were approached by a group of four police officers. Sydney was in yet another lockdown at the time that required all persons to be within 10km of their home address. Mr Pank was within 1km of his residence. NSW Health’s fluid public health orders at the time declared ‘sitting for relaxation’ was considered ‘outdoor recreation’, which was allowed, yet Mr Pank was told by police that he had breached a public health order by not being engaged in actively exercising.

FINED: Fail to comply with noticed direction in relation to sections 7/8/9 - COVID-19 - individual: $1,000.

Initial response:

The initial response of each of the three plaintiffs in a recent NSW Supreme Court case was to write to Revenue NSW and request an Internal Review of the penalty notices.

Ms Els made two applications for internal review. The first describing the circumstances and concluding that she was not involved in an unlawful outdoor public gathering, but had been supervising her son while he got some allowed exercise.

Ms Els’ second application, and Mr Beame’s only application, both contended that they did not understand the offence they were alleged to have committed. That the penalty notices failed to describe exactly what the fines were for or the circumstances that supported their issuance. In both cases they argued that the fines were issued ‘contrary to law’ and should be cancelled.

In every case the applications were rejected by the Commissioner of Fines Administration and the plaintiffs were told the fines still applied.

On the 14th of July 2022 messers Els, Beame and Pank were left with no alternative but to file essentially identical summons with the court seeking declaratory relief. At the point where the third summons (from Mr Pank) was received, the Commissioner of Fines Administration elected on behalf of Police to withdraw the penalty notice issued to Mr Pank. However, due to the unresolved matter of costs, Mr Pank remained a plaintiff in the case.

The matter came before Her Honor Justice Yehia in the NSW Supreme Court on the 29th of November 2022, which is where we pick up the case:

Judgement:

While international courts have allowed high value Covid fines against businesses (e.g.: here, here, here, here and here), courts in many jurisdictions were already beginning to signal an intollerance towards the heavy-handed way police were fining individuals (e.g.: here and here).

In response police have been seen to drop charges if, or when, they are contested (e.g.: MET police dropped 7 of the 9 covid gathering charges issued in relation to the Sarah Everard vigil here, a review by lawyers for Victoria Police recommended withdrawal of all but the most serious of the 19,000 covid fines issued by police against individuals in Melbourne here, and staff of the Victorian Department of Justice and Community Safety admitted that after the first 6 months of Victoria Police issuing Covid fines, none of the 5,490 that had been contested made it to court because they were always cancelled or withdrawn by police before they could be heard here).

As noted above, in response to the filing of the case police withdrew the fine against plaintiff Mr Pank. But, just like their Victorian counterparts, NSW police were then seen to try and avoid the potential for losing (and thus having to admit none of the covid charges were valid) by electing to withdraw the charges against Els and Beame at the final hour (just prior to the hearing). Counsel for the Commissioners of Police and Fines Administration conceded that the subject notices [fines] were invalid in that they did not comply with the requirements of s 20 of the Fines Act, and while they did not oppose the substantive relief sought (a declaration that the penalty notices proffering the covid fines were not legitimate penalty notices under the Act), they sought to argue against the necessity of the remainder of the complaint - which including that the court declare the Commissioner of Fines Administration could not validly enforce the penalty notices and that a refund be issued for any amounts already paid towards the fines. Most divisively, counsel for the police also argued that being as they were withdrawing the charges and were not totally opposed to paying back any monies recieved, the court need not proceed to provide full reasons prescribing the preconditions to the validity of the subject notices under s20 of the Fines Act. Essentially, what the police wanted was for the court to close down the matter without saying why, as the reasons would cast doubt on the validity of over 33,000 similar fines, and potentially every other covid fine police had issued during the period between July and September 2021.

Thankfully, the plaintiffs and Justice Yehia didn’t let the whole matter rest there. Had they done so, more than half (and now potentially all) of the covid fines issued in NSW would have been allowed to stand. Over 62,000 people, many from poor, underprivileged and indigenous groups, would have paid in excess of $45mil to police and the NSW State Government - authorities who unfairly weilded their powers and persecuted these people possibly because they knew most poor people don’t have the resources to fight back. They tend to pay up because they can’t afford good legal representation and the imposition of costs should they lose in court.

The key issue, which police sought to concede (and then sweep under the rug) at the commencement of trial, was whether the format and construction of the fines as issued was specific enough to meet the requirements of s20 of the Fines Act. The court found that failure of the penalty notices to specify the offence-creating provision (s10 of the Public Health Act) or any element necessary for establishing an offence was committed rendered them non-compliant with s20 of the Fines Act, and therefore invalid.

“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? [Beame; Els v Commissioner of Police & Ors [2023] NSWSC 347 at 118]

Outcome:

The first step in the police and Revenue NSW response was to acknowledge that they must withdraw all 33,121 identical fines laid against NSW residents. While the Court’s judgement made it clear that any fine similarly laid and worded did not meet the specificity requirement of s20 of the Fines Act, Revenue NSW sought to misdirect the reason as being an inability to review all 33,121 records. This disingenuous ‘spin’ came even though counsel for the plaintiffs had, against counsel for the police’s objections, successfully introduced affidavit evidence in court attesting to a search of the online Revenue NSW database conducted by the instructing solcitors that had already resolved this exact number of identical fines. However, at that point, and absent the final judgement of the court, they deemed the remaining 29,017 NSW covid fines were valid and would remain in force.

Researchers from the University of NSW have verified the claim that police disproportionately targeted people from socioeconomically disadvantaged and indigenous areas, and find that fines levied against children and the NSW Government suggestion that ‘children as young as 10 could work off covid fines’ may be in breach of international law to which Australia is a signatory. Lawyers report that some of the children who received fines were intellectually disabled and likely lacked understanding as to what they were doing wrong and why they were being fined, and that 34 of the children remain under unpaid work and development orders (WDO) in order to reduce their fine debt.

Conclusions:

It was suggested in court that public health measures in NSW changed more than 200 times during the 2020-2021 period. Given this, one has to naturally wonder how anyone, police or citizen, could keep up with what they were or were not allowed or required to do. It is clear that in many instances, and in every jurisdiction, large numbers of police became emboldened with what they believed the covid regulations allowed them to enforce and rather than treating every person they came across as another human being, they acted punitively. Even shamefully.

On reviewing the judgement of Justice Yehia, many are now calling for NSW police to withdraw the remaining 29,017 covid fines. There have already been reports that police have requested courts delay the more than 4,000 cases yet to be heard, and that in some cases they have already begun to withdraw charges for those that were due to be heard before courts this week. Further imposition of taxpayer-funded court time and the potential for costs awards against police would make withdrawing these fines prudent. The argument that it was only open to them to withdraw the 33,121 that were worded identically to those that failed before Justice Yehia seems incredible given that many others will be worded similarly, even if not the same. For what it is worth, many of them will undoubtedly lack references to relevant sections of the Public Health Act and therefore the required specificity describing the offence-creating provisions that the court ruled were lacking in this case.

Many on social media and less censorious sites like Substack are suggesting that tyranical enforcement of draconian rules is what we have to look forward to on many fronts, including the now notorious 15 minute cities, ULEZ and other net zero climate nonsense. The truck convoy in Canada, farmers convoy in Denmark and long-running protests in Paris certainly support such claims. If this is how politicians and police choose to act in future there will only be more protests, destruction and violence, and increasingly frequent calls for defunding of police and dissolusionment with governments.

While many terrible and dark stories that have come to light regarding events during the last three years, the enforcement of draconian policies that were little more than a poorly prescribed moving feast imposed against the poorest and most vulnerable of our community has got to be one of the worst. All police should spend some time reflecting on what they did during this period, and ask themselves what they could have done better. Police, like politicians, are there to serve the community. Leaving aside all of the other police scandals of the last decade (or longer), we must consider whether their actions during covid have eroded what little trust remained?