Policing the pandemic didn't work: report shows where COVID fines went wrong

A report by researchers at UNSW Sydney’s Centre for Crime, Law and Justice (CCLJ) has condemned the overuse of COVID-19 fines during the NSW Delta wave in 2021.The report was commissioned by the Public Interest Advocacy Centre (PIAC), The Aboriginal Legal Service (ALS) and The Redfern Legal Centre (RLC).

The report concludes the NSW Government’s and Police Force’s handling of fines did more harm than good.

“The response criminalised noncompliance with public health measures, centred the police as the responsible compliance and enforcement agency, and foregrounded punishment in the form of large ‘on-the-spot’ fines – our report shows this approach was regrettable, and should be avoided in the future,” says lead author, UNSW Law & Justice’s Professor Luke McNamara from CCLJ.

“It was not inevitable that the COVID-19 pandemic would result in more than $56 million in fines for non-compliance with public health orders,” Prof. McNamara says.

“In this report, we wanted to investigate the factors that contributed to these outcomes, and recommend a way forward.”

The authors show how NSW residents found themselves in the middle of a phenomenon that had many of the characteristics of a law and order crisis.

“Individuals were effectively criminalised for behaviours that would never previously have brought them into contact with the police or state-sanctioned punishment,” Prof. McNamara says.

Referencing Revenue NSW data, the report highlights that as at 1 October 2022, more than $15 million in fines had been unpaid and were categorised as outstanding.

“This is the first of two main consequences that have emerged from the issuing of these fines – debt that continues to have punitive effects on people’s lives,” Prof. McNamara says.

“The second consequence are damaged police-community relations in those parts of the state that experienced the most intense forms of policing and penalty notice issuance.

“The actions taken by lawmakers to criminalise non-compliance with COVID-19 fines lacked consideration, and as a result communities were punished, rather than educated.”

What went wrong? Three clues

The report examines three key areas – all with a particular focus on the events of the Delta wave, from June 2021 to November 2021, as the legacies resulting from the policing response are largely attributable to what happened in this period.

“The first area we analysed was the making, amending and remaking of orders relating to the Public Health Act 2010,” Prof. McNamara says.

There was what the report describes as “constant state of flux”: public health laws constantly changed. There were more than 120 principal orders and amendments made in a period of six months, and one Health Order was amended 13 times in two weeks.

Disadvantaged communities particularly affected

Prof. McNamara says the second area the team looked at were statistical data on COVID-19 public health order enforcement actions, with a focus on fines.

With restrictions in place, police started issuing a lot more fines to promote compliance in the community.

“The volume of penalty issues and uneven distribution tell a powerful story,” Prof. McNamara says.

Between July and September 2021, NSW Police imposed  $45.9 million in financial penalties on NSW residents for alleged breaches of ministerial orders made under the Public Health Act 2010 (NSW). This is more than 80 per cent of the total value of fines issued from the beginning of the COVID-19 pandemic in March 2020 to 30 September 2022.

Read more: NSW COVID fines on kids could breach international law

Some Local Government Areas (LGAs) were disproportionately issued these fines, with the areas most affected in NSW being South-Western, Western Sydney and more broadly Western NSW.

“We know that fines were not issued evenly across Sydney and NSW,” Prof. McNamara says.

“Residents in some of the most disadvantaged communities in the state, particularly children and highly populous Aboriginal communities, were targeted heavily.

“The Sydney suburbs of Blacktown, Mount Druitt and Liverpool and the NSW towns of Brewarrina, Bourke and Walgett were disproportionately affected.”

Shifting media rhetoric

The third area of analysis in the report were media-reported comments by the NSW Government and NSW Police Force leaders on the policing of public health orders.

“We found discrepancies in media-reported public statements by NSW Government and NSW Police Force, demonstrating the lack of clarity in the public health messaging,” Prof. McNamara says.

For example, former Police Commissioner Mick Fuller fluctuated between talk of “strong action” and being “done with cautions”, but he also emphasised that police would use the “power of discretion reasonably”.

The report shows how aggressive policing brought about a shift in the rhetoric used by political leaders, as a ‘zero tolerance’ and ‘ask questions later’ approach was adopted.

Recommendations

For future crises, Prof. McNamara recommends a multidisciplinary approach led by community and health organisations – not by police – to increase public health compliance.

“When enforcing relevant restrictions, police must ensure their actions are proportionate to the threat posed to public health and necessary to protect public health,” says Prof. McNamara.

Days before the UNSW report landed in November 2022, Revenue NSW cancelled more than 33,000 COVID-19 penalty notices – equivalent to $30 million in fines that would be overturned and wiped.

The Aboriginal Legal Service (ALS) and the Law Society Of NSW has recommended the cancellation of more than 29,000 additional fines.

“The NSW Government should take further steps to improve the resulting debt legacy – at a minimum, by waiving outstanding fines for all children and any persons experiencing financial hardship,” Prof. McNamara says.

Read more: What history can teach us about pandemic management

The report also gives recommendations for the NSW Government and police to better manage and safeguard communities in any future public health crises.

“NSW Police Force should review its use of penalty notices for all offence categories, and prioritise less punitive methods of encouraging compliance, including engagement, education, and negotiation,” Prof. McNamara says.

“The biggest lesson we can learn is that we should be very careful about imposing big fines as a mechanism of registering a need for compliance in the community. Fines are not simple and it’s not just a slap on the wrist.”

Recently appointed CCLJ Director, Associate Professor Maria Giannacopoulos, says: “This is a timely and important report because it challenges the unjust impacts of the imposition of big fines and aggressive policing in the context of a public health crisis.  The report is significant as it warns that fines do not produce public safety and improve health outcomes but exacerbate harms experienced by already disadvantaged communities”.