Walgett Indigenous leaders welcome Supreme Court decision, call for all COVID-19 fines to be reconsidered

Last year, data obtained by the Redfern Legal Centre revealed western NSW communities with high Aboriginal populations topped the state in terms of COVID fines per capita.

The town with the highest rate of fines was Walgett, where six people out of every hundred were fined for COVID-19 breaches.

But the Walgett-based Dharriwaa Elders Group is hopeful the reasons given in the Supreme Court's decision to overturn two fines in the test case brought forward by the Redfern Legal Centre could see more fines scrapped.

"[We] understand deeply the ongoing negative impact of Revenue NSW fine debt on individuals, families and the Walgett community and the stress and financial burden it creates in an already highly disadvantaged community," Dharriwaa Elders Group secretary Virginia Robinson said.

"There must be a better way to keep our communities safe from future pandemics, than to elevate police powers. We ask the adults in NSW Parliament to apply themselves to planning better responses for the future."

The test case was filed in July last year and represented two people who argued that their COVID-19 fines were invalid because the penalty notices they received lacked sufficient "unambiguous" detail about the offence.

On 29 November 2022, the government conceded and the Supreme Court found that both fines were invalid. Following the decision, NSW withdrew a total of 33,121 COVID-19 fines.

Samantha Lee, Redfern Legal Centre police accountability solicitor, said the decision calls into question the validity of 29,017 more COVID-19 penalty notices where the offence may not have been not specified clearly enough to be legally valid.

"This judgement calls into disrepute all remaining COVID-19 fines because the fines do not meet the legal requirement to be a valid penalty notice," she said.

"The government must now do the right thing and withdraw all COVID-19 fines that were issued, including withdrawing those offences for which individuals elected to take to court, any Work and Development Orders and reimburse fines already paid.

"This case is not about COVID-19 or about public health orders. It is about ensuring the rule of law is adhered to even in a time of crisis."

Ms Lee said, in order to be legally valid, penalty notices must contain enough information about the alleged offence for the average person to be able to understand what law they were breaking.

"What that meant on the ground for those who were issued with the fine is that they didn't know where to look in terms of what they now do with this fine, and if they want to contest it what are they contesting," she explains.

"If someone went to a lawyer they might be able to figure it out but most people don't have that benefit and the penalty notice itself should have enough information that people don't need to go to a lawyer for a fine.

"Especially because the public health orders were changing 2.5 times a day, so it was just impossible."

Ms Lee said fines have a disproportionate impact on people of a lower socioeconomic status and noted Walgett is one of the most socio-economically disadvantaged communities in NSW. According to 2016 census data, the median income for Aboriginal people in Walgett is just $376 a week.

"This case was about the crippling nature of fines, particularly for those who are from lower socioeconomic areas," she said.

"Fines aren't means tested and so what that means is that people on a lower income are punished more for the same offence than someone of a higher income."

Walgett isn't the only western NSW community which was hit by a disproportionate number of fines.

Brewarrina had five in 100 residents fined and Wilcannia saw over four in 100 people fined. Coonamble, Bourke, Goodooga, Warren and Collarenebri were also near the top of the list for the proportion of residents receiving COVID-19 fines.

Ms Robinson said the Dharriwaa Elders Group was "dismayed" by the figures.

As well as hoping to see the fines overturned, they're asking for the NSW Government to review Walgett police's use of fines during the pandemic.

"The NSW Government made a big mistake for our community in tasking police to lead the local emergency response to this public health crisis," she said.

"Police have a long history as an intimidating presence in Walgett, without a track record of building trust or communicating well with the local Aboriginal community.

"What we know is that there is no evidence that the heavy use of fines has benefited our community or achieved any public health outcome."

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