Top lawyers call for challenges against COVID fines
Top lawyers have called on NSW residents slugged with $1000 COVID-19 fines to challenge the ‘poorly drafted’ laws in court after NSW Arts Minister Don Harwin has his own fine dropped.
Police & Courts
Don't miss out on the headlines from Police & Courts. Followed categories will be added to My News.
- Top Sydney brain surgeon not guilty of assaulting wife
- Guy Sebastian’s manager accused of defrauding star
The floodgates are open for legal challenges against the 1300 COVID-19 fines handed out across NSW after embattled Arts Minister Don Harwin beat the “poorly drafted laws” in court, top lawyers say.
The Director of Public Prosecutions, on Friday, withdrew the $1000 fine against Mr Harwin after he launched a legal challenge against the infringement that saw him resign his position as NSW Arts Minister in April.
His $1000 fine was one of 1332 Criminal Infringement Notices issued by police as the state grappled with the spread of coronavirus.
Another nine $5000 fines were handed out to corporations.
Every one of them underwent review, which resulted in police rescinding 77 of them.
High-profile barrister Emmanuel Kerkyasharian told The Daily Telegraph he has long held concerns about the wording of the public health orders which empower police to hand out fines and court notices for failing to comply with the ever-changing COVID-19 restrictions.
“My concern is that the order itself was poorly drafted, confusing,” he said.
Mr Kerkyasharian said the fact NSW Police believe the fine is warranted but the Director of Public Prosecutions dropped the case was proof of the problem.
“Even at the highest levels of prosecution you have some different understanding of what the law is, that shows how poorly drafted it is.”
The barrister said his primary concern was that many other people would simply pay the fine to have it dealt with.
“I am concerned the average person won‘t have the resources to challenge (the fines) or the ability to understand if they have the grounds to challenge it, he said.
“Only by challenging them can we make sure the laws are clear. We accept the difficult circumstances the government was facing and can understand why these laws are poorly drafted. But now we need clarity so it doesn‘t happen again.”
He called on the DPP to review each case or for an independent body to be established to ensure the fines and charges legally stack up.
MORE NEWS
Melbourne man blasted after ‘half-baked’ Sydney visit
Embattled minister reinstated after COVID fine dropped
Prosecutor turned defence lawyer, Penny Musgrave, said penalty notice laws required certainty around the law or police officers may end up applying the laws too broadly. And the COVID-19 laws lacked that certainty.
“If you‘re going to give (police officers) discretion there has to be certainty about the law and the ability to challenge the fines” she said.
“You‘re making the police judge and jury. And these basic protections should not be thrown away because it’s a time of crisis.”
She supported calls for every person to challenge their fine – but acknowledged many would lack the resources to launch a legal battle.
Ms Musgrave also called on NSW Police to fully reveal where they handed out each fine and to which demographics to determine if police were actually applying the fines in a way that reduced the risk of the coronavirus threat.
Australian Criminal & Family Lawyers‘ principal Osman Samin said the original lockdown orders were “hopelessly” put together, and “rushed through” without any thought to how police would enforce them.
When we examined the Order from a legal perspective, it contained irremediable deficiencies that would be fatal to prosecuting authorities, in simple terms ‘loopholes’,“ he said.
The most glaring, he added, was that the order still required police to prove people didn‘t have a good reason to leave their home — that would make it very difficult to prosecute in court.
He said others should absolutely come forward to challenge the “fundamentally flawed laws” but recognised the cost of going to court, for many, would likely be more than the $1000 fine.
“In the current climate, I think that will remain to be a significant deterrent to people who want to challenge the issuing of these fines,” he said.
His firm has put together a guide for people who want to challenge the laws themselves.