A damning ruling about the legality of Covid fines has prompted New South Wales police to quietly withdraw some infringements from court and forced the judiciary to put all remaining Covid breach cases on hold, pending urgent legal advice.
Earlier this month, the status of tens of thousands of fines issued during Covid restrictions was cast into doubt by a NSW supreme court ruling, which found infringements that failed to properly spell out an alleged offence were invalid.
The ruling created uncertainty around fines that were still being challenged in the state’s lower courts, including by the clients of Redfern Legal Centre.
Samantha Lee, senior solicitor at Redfern Legal Centre, said she was this week notified that police would withdraw fines against her clients who remained locked in court disputes about their infringements.
It is not clear whether NSW police will adopt the approach more broadly and withdraw all fines still before the courts. A spokesperson would say only that police were still considering the supreme court’s ruling.
The decision has also prompted a direct response within the NSW courts this week.
The Guardian understands that all remaining Covid breach matters in the local, children’s and district courts have been put on hold temporarily, until legal advice clarifies how the decision could affect pending and finalised court cases. Court registries are being directed to adjourn any Covid breach matter until after 8 May, to allow time for the legal advice to be obtained.
A notice at the top of the NSW local court website also said that “work is currently underway” to determine how it will deal with the remaining Covid fines.
“The judgment relates to penalty notices issued for certain offences under the Public Health Act 2010. Work is currently underway to determine if or how cases in the Local Court may be affected by the decision,” the message said. “This website will be updated as soon as further information becomes available.”
Lee told the Guardian that police had “made the right decision” by withdrawing the remaining matters involving Redfern Legal Centre’s clients.
“But there will be many more court elected Covid matters that also require certainty,” she said. “It’s time for the NSW police commissioner to withdraw all such matters before the court or risk a stint of cost orders against the state for continuing to pursue these matters for which the originating fine has found to be invalid by the supreme court.”
The Aboriginal Legal Service has also expressed concerned about the fate of Indigenous Australians who were convicted after taking their Covid fines to court. An ALS spokesperson told the Guardian that those convictions now warranted reconsideration.
The government decided last year, while the supreme court case was still under way, to refund 33,000 Covid fines worth $30m. That followed a concession in court by government lawyers that the way many penalty notices had been issued was not valid.
But the delivery of the supreme court’s judgment on 6 April prompted renewed calls for the government to withdraw and refund the remaining fines, of which there were roughly 29,000.
Redfern Legal Centre wrote to NSW police’s office of general counsel last week, asking for clarification on what would happen to the fines still before the court.
“It is clear from the judgment that all Covid fines are invalid because the fines do not meet the requirements as outlined in the judgment to ensure the fines are valid,” Lee wrote, according to correspondence seen by Guardian Australia. “For this reason, I request that clarification be provided as to whether the Covid fine elected matters before the Local Court will be withdrawn.
The government’s handling of Covid fine enforcement has attracted significant scrutiny.
Data suggested that small towns with high Indigenous populations and western Sydney suburbs that are home to the most socioeconomically disadvantaged residents in the city bore the brunt of Covid fine enforcement.
Last year, Guardian Australia also revealed how the government had privately suggested that children as young as 10 could be placed in an unpaid work program or on “extended payment plans” to help them pay Covid fines.
