A leading community legal group has privately warned New South Wales police that all remaining Covid fines before the courts have been rendered invalid by a recent judgment and should be withdrawn.
The NSW government is yet to reveal what it will do with roughly 29,000 Covid-related infringements issued during 2020 and 2021 in the wake of a damning ruling last week by the NSW supreme court.
The court ruled Covid fines were not lawful if they did not properly spell out the offence that was alleged to have been committed or the relevant offence provisions.
The Redfern Legal Centre has since written to NSW police saying it believes the ruling renders all remaining Covid fines, including those currently being disputed through the NSW courts, invalid.
The RLC is representing clients who are disputing Covid fines through the NSW local court. Their cases have been in limbo waiting for the NSW supreme court decision and the subsequent response from the state government.
On Wednesday morning, RLC senior solicitor Samantha Lee wrote to the NSW police’s office of general counsel, asking that “clarification be provided” on how fines currently before the court will be treated.
“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,” she 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I request that clarification be provided as to whether the Covid fine elected matters before the Local Court will be withdrawn.”
In a statement, NSW police said it was still considering what to do about the fines that remained before the courts.
“The NSW Police Force is currently considering the judgment in Beame; Els v Commissioner of Police & Ors that was delivered by the supreme court on 6 April 2023,” a spokesperson said.
The government was forced to backflip on its enforcement of Covid-related restrictions late last year, conceding that the way it had issued penalty notices was not valid. That concession was made in a test case brought by the RLC on behalf of three fine recipients.
The government subsequently refunded 33,000 fines worth $30m, but left 29,000 further fines unchanged.
The judgment in the RLC case, handed down on Thursday, said it was imperative that the infringement notices clearly and unambiguously specified the offence alleged to have been committed, something it said was a minimum requirement under NSW law.
The absence of such information left recipients unable to discern what they were accused of and unable to decide whether the infringement should be disputed.
“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?” Justice Dina Yehia said.
Lee said she was most concerned about those who could not afford or were not able to access legal representation to advise them on the validity of the infringements.
“People who have representation or legal advice may be able to contest the matters, but we’re more concerned about those who are not our clients, and are most vulnerable, and may not be able to contest these fines on their own,” Lee told Guardian Australia.
“That’s why it would be better if Revenue NSW and the police commissioner came out and said they’re withdrawing these fines.”
