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The message to everyone during the coronavirus pandemic is to stay at home and only leave if you really need to for, say, food, health care or exercise.
Police now have powers to issue on-the-spot fines to people for breaches of public health orders as part of the coronavirus restrictions.
Hundreds of fines have already been issued in many states, for example:
- Victoria: police fined three friends who did not live together for playing video games in the same lounge room
- Queensland: police fined five young people having a party in a hotel room
- New South Wales: police fined a man eating a kebab on a bench.
Victorian police also pulled over and fined a 17-year-old learner driver for "non-essential travel", but later withdrew the fine.
This last case shows penalty notices can be overturned. So, what should you do if you have been issued with a notice by police, especially if you think you have been unfairly fined?
Know your rights
Penalty notice schemes allow police to swiftly impose a fixed fine and avoid prosecuting the matter in court. Police and politicians tend to describe their benefit as reducing red tape and cutting costs.
But many Australians are unaware of their rights and options if they receive a penalty notice.
The following information is not intended to replace independent legal advice. You should also check your state or territory's rules and procedures.
What happens if I receive a COVID-19 penalty notice?
Check the notice for the payment due date.
If you are experiencing financial hardship and cannot pay the fine, contact the fines administration agency to see if you can request an extension or ask to pay by instalments.
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What should I do if I think the fine has been unfairly issued?
The directions of some COVID-19 orders are vague and have been hastily drafted. Many Australians are struggling to keep up with what's allowed and what isn't.
Police have also had insufficient time and training to understand the orders, including what constitutes a reasonable excuse. This can give rise to arbitrary — and perhaps incorrect — interpretations of the provisions.
You can request an independent review of the police officer's decision to issue a penalty notice. The request should be directed to the relevant fines administration agency before the penalty due date.
If successful, your penalty notice may be withdrawn or you could receive a caution in place of the fine.
Grounds for a review may include:
- an error was made in the decision to issue the penalty notice (for example, you had a reasonable excuse for leaving your residence, even if your excuse was not one specified in the order)
- extenuating circumstances contributed to the alleged offence (such as homelessness, a mental illness, a cognitive impairment or a disability).
Review processes often allow you to provide copies of evidence to support your claim, such as photos and documents.
Can I elect to have the matter heard in court?
If you disagree with the findings of the independent reviewer you can elect to go to court.
A court may find you guilty or not guilty.
If convicted of the offence, you may be liable for a larger fine and imprisonment for up to six months. You should seek legal advice if you intend to go to court.
The right to seek an independent review or go to court is rarely exercised. As the NSW Law Reform Commission observed in 2012:
The penalty notice system does not have the transparency normally associated with justice systems in democratic societies … Most people simply pay the penalty. Only 1 per cent elect to go to court, so that the guilt or innocence of the recipient is rarely scrutinised.
What happens if I don't pay my fine on time?
If you don't pay the fine by the due date, you will usually be given a reminder notice and may incur additional financial penalties.
If you still do not pay the fine by the extended due date, you may receive fines enforcement sanctions, including driver licence or vehicle registration suspension or cancellation, or property seizure.
Problems with penalty notices
In the rush to quickly enforce social distancing and social isolation rules, the flaws of on-the-spot fines regimes have received little attention.
They do not punish everyone equally. A wealthy person is much less likely to feel the weight of a $1,000 fine — and suffer the consequences of fines enforcement sanctions — than someone who is unemployed or has had their income drastically reduced.
There is also insufficient evidence of the deterrent effect of penalty notices, particularly on those who do not understand the law or what they did wrong, those who are too poor to pay the fine or, alternatively, those who are so wealthy that the fine has a negligible impact.
An important aspect of the rule of law is that citizens are made aware of the law so they can moderate their behaviour to comply with it.
The speed at which the COVID-19 orders have been introduced, their breadth and their arbitrary interpretation by individual police officers can result in people unwittingly breaching the law and being unfairly punished.
Elyse Methven is a lecturer and David J Carter is a senior lecturer, both in the Faculty of Law at the University of Technology Sydney. This article first appeared on The Conversation.
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Topics: covid-19, law-crime-and-justice, laws, australia