WHAT TO DO IF YOU GET A COVID-19 FINE (NSW)

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The Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (the Order), which came into force on 31 March 2020, mandates that persons in NSW must not leave their place of residence unless they have a reasonable excuse to do so.

Yesterday, the NSW Arts Minister Don Harwin was ‘ordered’ to return to his primary place of residence in Sydney, and apologised for having relocated to his holiday house in Pearl Beach to work from there.

According to media reports, the decision to work from his alternative residence was made having regard to his underlying health issues and was made prior to the Order coming into effect.

 

WHY ARE WE TROUBLED BY THE PUBLIC HUMILIATION OF MR HARWIN AND HIS APOLOGY? 

Yesterday morning the NSW Police Commissioner Mick Fuller said “if [Mr Harwin’s] excuse doesn’t cut the mustard, he will get a $1,000 fine”. But it is important to note that:

  1. Mr Harwin had relocated before the Order came into effect.
  1. The Order does not define a person’s place of residence to be their primary place of residence.
  1. The Order does not provide an exhaustive list of what constitutes a ‘reasonable excuse’. Rather, it lists 16 activities which are included as activities that would constitute a ‘reasonable excuse’.

 

IF YOUR EXCUSE IS REASONABLE, YOU CAN LEAVE YOUR PLACE OF RESIDENCE.

If parliament intended to limit the list of what constitutes a ‘reasonable excuse’ to the 16 activities specified in the Order it should have, and would have, spelt that out in the Order.

The public (and the Police Commissioner) should not to be confused by the ‘order’ issued by NSW Premier Gladys Berejiklian to Mr Harwin that he return to Sydney.  There is no plausible suggestion that Mr Harwin was breaking the law.  As Ms Berejiklian said, this was a matter of ‘perception’ because people in NSW have been asked to avoid regional towns unless it is their primary place of residence.

But Ms Berejiklian must know that Mr Harwin wasn’t breaking the law.  He relocated to his holiday house before the Order was issued, and he went there (ironically enough) for health reasons. Perhaps Ms Berejiklian is particularly sensitive to issues of ‘perception’ in circumstances where the Ruby Princess debacle just won’t seem to go away.  But that makes it a political issue, not a matter of law.

Confused?  So, it seems, is the head of the NSW Police Force.

 

WHAT IF POLICE APPROACH YOU AND YOU ARE CONCERNED?

If you don’t think that you are breaching the Order but you are being hassled by police, you can record the interaction with police. Recording an interaction with police (to protect your legal interests) is allowed.

 

WHAT ARE YOUR OPTIONS IF YOU ARE ISSUED WITH A FINE? 

If you are issued with a fine for breaching the Order you can either choose to pay the fine, or elect to have the matter heard in court.

Before you decide to court-elect the fine, it is important to properly consider your rights, know what the maximum penalties are, and understand the court procedure.

 

OPTION 1: PAY THE FINE

On-the-spot fines of $1,000 are being issued by police. If you accept that you were in breach of the Order, or simply want to have the matter finalised as soon as possible, you can pay the fine. This won’t be recorded as a criminal conviction, however it will still appear on your criminal record as a penalty infringement notice offence.

 

OPTION 2: COURT-ELECT

If you court-elect the fine you will be sent a Court Attendance Notice (CAN). This requires your attendance at court on a later date for the matter to be determined by the court.

 

If I court-elect, what is the maximum penalty?

Section 10 of the Public Health Act 2010 (NSW) creates an offence of failing to comply with the Order. This offence has a maximum penalty of 6 months imprisonment and/or a fine of up to $11,000, plus a further $5,500 fine for each day the offence continues.

 

What is the procedure at court?

At court you will be required to enter a plea of either guilty or not guilty. If you plead guilty your matter might be able to be finalised on the first court date. If you plead not guilty your matter will be adjourned to a later date for hearing.

 

What will happen if I plead guilty?

If you enter a plea of guilty the court will sentence you, taking into account the following:

  • the nature of the breach
  • the circumstances surrounding the issuing of the fine
  • your personal circumstances and your criminal history.

It is important that a lawyer properly prepares and presents your case to assist you in getting the best possible outcome.

It is possible that a conviction will be recorded and, although these are many sentencing alternatives, it is possible that you will go to gaol.

 

What will happen if I plead not guilty?

If you do not accept that you breached the Order, you can plead not guilty. Your matter will then be adjourned to a later date for hearing. Depending on the particular circumstances of your case, your defence might be that you had a ‘reasonable excuse’ to leave your place of residence, or that you were unlawfully stopped, questioned and/or arrested.

At the end of the hearing, the court will either find you guilty or not guilty. If you are found guilty your matter will proceed to sentence. If, however, you are found not guilty the charge will be dismissed.

 

If you have been issued with a fine for breaching the Order and you would like to discuss your options, call us on (02) 9696 1361 to make an appointment to speak to one of our lawyers via phone, Zoom or FaceTime.