During the pandemic, every state announced a raft of restrictions to protect community safety. During lockdowns in particular, the public had to strictly follow the government’s published rules whenever they went out. However, because these new rules were issued over a short period of time and were numerous, it was possible for someone to breach a rule without knowing about it and end up being fined. In that situation, can you have the fine overturned by lodging an appeal?

An example

A restaurant employee travelled across LGAs for work. He was not aware that NSW now required a worker permit for cross-LGA work. When police carried out a random check at the restaurant where he worked, they found that he had travelled across LGAs without applying for a permit and fined him $3,000 on the spot. Clearly the police were enforcing the new rules, but the fined employee wanted to appeal — he believed he had not been aware of the new rule, and his employer had not informed him of it either, so his breach of the rule was understandable and he should not have been fined outright. A situation like this employee’s was certainly not unique during the pandemic; there were many similar cases, such as the 5 km radius limit imposed in many areas, with some people being fined for travelling beyond 5 km from home, or for going out without wearing a mask. If someone is fined solely because they were not aware of the relevant rules, can that be a valid reason to request the fining authority to overturn the fine?

NS Legal’s analysis

First of all, we need to understand that the person has rights. If they disagree with the penalty, they can choose to lodge an appeal. It is true that many new rules during the pandemic were drafted and issued in a rush. The public may not have had time to understand what conduct was or was not compliant, and police did not have enough time to be trained, which could sometimes result in penalties being imposed inappropriately. 

If the person believes they have been fined incorrectly or has reasonable grounds to support their conduct, they can apply to the fining authority for a review online, by phone or by email. Generally, the back of the fine notice sets out the steps for lodging an appeal — simply follow those steps. If the appeal is successful, the fine will be overturned, or the person may receive only a warning. Factors that typically affect whether an appeal s\ucceeds include:

• The police made a mistake when issuing the fine notice
• The person fined has reasonable grounds
• The person’s actual circumstances can reduce the penalty (for example, being homeless, having a mental illness, a disability or a cognitive impairment)

Another issue to understand in this process is why we have a fines system at all. The purpose of fines is to influence people’s behaviour and ensure that individuals take responsibility when they break the law. As a result, the relevant authorities review these appeals very strictly. If any of the following factors apply, the appeal is essentially very unlikely to s\ucceed:

• Being unable to provide the relevant supporting documents
• The person claiming they were unaware of, or misunderstood, a particular rule
• A breach caused by negligence

So, coming back to the original question, can a fine be overturned simply because the person “did not know the rules”? The answer is definitely no. The reason is that whether the person knew the relevant rules is a matter of their subjective state of mind, which cannot be verified from the outside. If “ignorance of the law” were allowed as a valid defence, then anyone who knowingly breached a rule could claim they did not know it in order to escape responsibility, which would plainly be unfair. However, if the police consider that the person is a first-time offender, or that their lack of awareness of the rules is understandable, they may choose to take a lenient approach — for example, waiving the fine or issuing only a warning.

As mentioned earlier, if after weighing up all the factors the police still decide to issue a fine, the person can still choose to appeal. If the appeal is successful, the fine will be overturned; if it is unsuccessful, the original penalty will be upheld following the review and the person will have to pay the fine. If the review is unsuccessful but the person still considers the outcome unfair, they can apply to the court for a hearing. Note, however, that not only will the court charge a filing fee, but if the hearing is lost, the penalty may become more severe.

What other options are there for dealing with a fine?

If the person accepts the fine notice but genuinely cannot pay the fine on time due to financial hardship, they can apply to extend the payment period. In some special circumstances they may also apply for a Work and Development Order (WDO). These special circumstances include the person having mental health or alcohol/drug issues, suffering serious financial hardship and being homeless, or being under 18. A WDO allows the person to offset the fine by doing unpaid work, or by completing certain courses or treatment. It should be noted that a WDO application must be supported by an approved organisation or a qualified health practitioner, otherwise the application will not be approved.

Overall, the simplest way to avoid a fine is to comply with the law. The pandemic has been a difficult time for every state, every community and every individual. In times of crisis, active civic awareness is key. Freedom comes with duties and responsibilities. In the midst of the pandemic, we should understand and comply promptly with all the necessary measures and rules in order to respond to the COVID-19 health crisis.