Heavy Covid infringement hikes will most likely fall the people most unable to pay – those for whom lockdowns have probably already been financially ruinous

This article originally appeared in LawNews (ADLS) and is here with permission.

By Nathan Batts

On the same day I sit down to write this, protests about lockdown restrictions and vaccine mandates have, for a second day in a row, erupted in violence in Melbourne. It appears that state premiers of our close neighbour, Australia, may be losing touch with segments of their populations.

A salutary reminder, perhaps, that legal obligations derive their legitimacy not simply from being promulgated through proper process but also by being perceived as proportionate responses to the purposes they aim to achieve. Unreasonable or irrational legal liabilities risk undermining the rule of law.

While not seeking to read anything into the timing, on the same day as these protests in Melbourne Jacinda Ardern announced that our government will be increasing on-the-spot infringement fees for non-compliance with orders issued under the Covic-19 Public Health Response Act 2020, from $300 to $4000. Given Labour’s significant majority, the amendment giving effect to these increases will almost certainly be passed in November.

If you are silly enough to dispute such an infringement notice in court (or if the infringement is filed in court rather than simply served on you by way of notice), then the maximum fine that can be imposed trebles to a whopping $12,000 if you are found liable.

You might have thought that with such exorbitant fines involved, you’d also be looking at a criminal conviction. You would be wrong. Infringements are what you incur when you park illegally. They are effective from the moment an enforcement officer issues them.

An enforcement officer (most likely police in the case of Covid orders) may issue an infringement notice if the officer believes on reasonable grounds that the person is committing, or has committed, an infringement offence. An enforcement officer needn’t even speak to you. The first you might know of your obligation to pay the Crown $4,000 for an alleged breach of an order might be a couple of weeks later when it turns up in your letterbox.

Whether you intended to breach a rule, or even knew that you had, is entirely irrelevant. An enforcement agency does not need to prove an infringement against you unless you go to the trouble of formally disputing it in court. If you do nothing about the infringement notice and do not pay the $4,000 in full by its due date, then it is referred to the Ministry of Justice for enforcement, at which point it is treated as a fine.

Recent media attention has focussed on Aucklanders travelling out of alert level 4 to places like Queenstown. Whatever you think about that, it is worth observing that infringement offences under the current alert level order are rather more extensive than such cross-country escapades. Infringements include:

• failure to display a QR code ($12,000 fee for a company);
• failure to wear a face covering when required;
• failure to physically distance (2m) at alert levels 3 and 4;
• exercising somewhere not ‘readily accessible’ from your home during alert levels 3 or 4; and
• swimming, surfing or tramping at alert level 4.

Reasonable and proportionate?

At the media briefing where news of the fee and fine amendments was delivered, the Prime Minster said she thought the general public would probably be of a view ‘that when you are putting people at risk, you need to have an infringement regime that reflects the seriousness of some of that rule-breaking’.

Opinions will no doubt vary, but one might think that non-compliance with the above examples at least do not warrant a $4,000 price tag. For some context, travelling at double the speed limit (100km/hour in a 50km/hr zone) carries an infringement fee of $630. So at alert level 4, in a rush to stock up on toilet paper, you might travel at 100km/hr through residential streets to get to the supermarket in time. You are potentially liable for a $630 infringement fee for the speeding, but it’s essential travel so you’d be safe in terms of the Covid order. On the other hand, come November, a trip down to an empty local beach on a hot afternoon for a paddle in the shallows at alert level 4 might see you $4,000 poorer.

A statement issued by Chris Hipkins, the Covid-19 Response Minister, confirmed that an example of an infringement offence would include failure to wear a face covering in places where it is mandatory.

On this point, and whatever might be said now about the merits of mask-wearing, it is worth bearing in mind that official advice from the government in the early months of the pandemic was that wearing masks if you were healthy was not necessary.

Clearly the government’s position on that has changed markedly. But in the space of 18 months we have gone from a practice that was not even recommended to one that you are legally obliged to comply with on pain of a $4,000 fine.

Another example of the sort of conduct that would attract the $4,000 fee would be taking part in a peaceful protest at alert levels 3 or 4 (known as an unlawful outdoor gathering under the order).

During the same media briefing, the Prime Minister was careful to distance the government from the enforcement of these increased fees and fines. The government has just set up the framework. “The prosecution decisions are not ultimately made by us,” she said. “Where they’re used and how they’re used, what fines are awarded, that sits out of our hands,” the Prime Minster was careful to emphasise.

That is all true and appropriate. However, this reality highlights a further significant concern about the level of infringement fee soon to be in force.

An enforcement officer tasked with issuing infringements has no discretion as to the level of fee he or she can impose, based on the perceived seriousness of the breach. It’s $4,000. Period. As an infringement, anything from an unwitting error to a sustained and intentional breach will attract the same $4,000 fee.

Police officers tasked with issuing these infringements will, one hopes, be acutely aware of the potentially devastating effect liability to pay such a fee could have on many New Zealanders. Placing such a burden on frontline policing staff is unlikely to be a productive exercise and may well result in the unprincipled exercise of police discretion to avoid imposing this fee.

The proposed amendment bill does allow for the enactment of regulations that identify infringement fees less than the $4,000 default, and that prescribe different penalties for different infringement offences. How and if such regulations are utilised to mitigate the effects of the default $4,000 fee is, of course, yet to be seen. The Prime Minister’s media statement certainly did not indicate that the government was contemplating lesser infringement fees.

Paying the price

One centrally important question is who is most likely to bear the brunt of the financial burden of these colossal infringement fees. Well, we can pretty confidently say who it won’t be – the wealthy Aucklanders escaping level 4 lockdown to holiday homes in Queenstown.

Yes, the very people whose actions presumably solidified the government’s resolve to drastically increase the legal consequences of non-compliance. Instead, the people most likely to be on the receiving end of these fees are those most unable to pay – those for whom lockdowns have probably already been financially ruinous.

We know, for example, that Māori, who make up only 16.5% of the total population, are significantly overrepresented in the criminal justice system. Based on this reality, we can probably assume that liability for these increased fees will rest disproportionately on Māori, at least.

This is not simply speculation. Again, we can look to our neighbours. The Victorian and New South Wales governments in Australia were early adopters of very high monetary penalties for Covid restrictions rule-breakers. This hasn’t worked well for them.

On 15 September 2021, an open letter with more than 100 signatories was delivered to NSW Premier, Gladys Berejiklian.

Signatories included heads of community law centres and the NSW Aboriginal Legal Service. The letter is headed A call to address unjust Covid-19 fines. One of the primary motivations for the letter was concerns ‘about the impact of Covid-19 fines on vulnerable people and communities in NSW’. The letter observes that as a result of excessive fines, people experiencing disadvantage already and suffering from the economic impact of Covid-19 risk being plunged further into debt.

The letter calls on the NSW government to ‘reduce the use of policing and fines to ensure compliance with public health orders and invest more heavily in non-punitive approaches’. It calls specifically for a reduction in the excessive levels of the fines. The letter continues:

• These new public health orders have been introduced and amended at a rapid pace. Their legal elements are complex and difficult to understand. This has inevitably resulted in confusion among some members of the public about their rights and responsibilities...

Sound familiar?

In terms of the impact on the fines on the criminally over-represented Aboriginal community, the letter states:

• The excessive use of fines against Aboriginal and Torres Strait Islander people and communities in NSW also has the potential to further entrench disadvantage and exacerbate negative relationships between Aboriginal communities and the police.

The letter concludes with the rather blunt statement that ‘we cannot fine our way out of the pandemic’.

Our government would do well to heed this warning. All the signals are that the proposed fees and fine hikes will be counter-productive and do more damage than good. 

Nathan Batts is a senior associate at Haigh Lyon Lawyers. This article originally appeared in LawNews (ADLS) and is here with permission.