Owner/Driver #328

The legal view Sarah Marinovic
Balancing act
Now, more than ever, inconsistencies in State laws
could mean big fines due to guilt by interpretation
IN THE PAST few months we’ve seen
every State pass new laws in response to
Covid-19. The extent of the restrictions
on people’s lives and how quickly they’ve
been enacted is unprecedented.
But the speed at which these laws
needed to be made means they’re not
perfect. I don’t say that to be critical of the
lawmakers. This is a difficult situation for
everyone. Most people are trying to do their
best under a lot of pressure – this includes
the authorities.
But the reality is, the laws aren’t as clear
as they would have been had there been
time to review them and seek the input
that usually occurs.
The public has a lot of questions about
what’s actually allowed or not. And that’s
completely understandable. The way the
laws have been written leaves a lot of room
for interpretation. Even lawyers are having
trouble working out with certainty where the
boundaries fall. That’s a concerning situation
when the punishment for breaching them is
large on the spot fines and jail time if the case
goes through court.
Interstate drivers are in an even harder
position. Not only do they need to know the
restrictions in their home State, they need to
know the rules in every jurisdiction they pass
through. It’s not easy!
To make things more difficult, even where
the rules seem similar the police in different
States are interpreting them differently.
Then to top it all off the laws are being
changed regularly when the restrictions
need tightening or relaxing. By the time this
article goes to print, the laws will likely have
changed again.
There’s a real risk that people are going
to find themselves unknowingly breaching
the law. Alternatively, given the differing
interpretations among police, it’s also likely
that people will be wrongly accused of
breaking the law.
STAYING ON THE RIGHT SIDE
So how can the transport industry reduce
their chances of receiving a fine?
The most important thing to do is keep
up to date on the rules. Before you begin any
trip across borders you should check the
current restrictions and make sure nothing
has changed. The government websites have
up-to-date information about the laws. I have
included a list at the bottom of this article
with the website for each State.
The other important thing to do is stop and
think each time you go out into public. Think
carefully about whether your outing falls into
one of the permitted categories. If you are
questioned by police, while you don’t usually
have to answer questions other than your
name and address, sometimes being able to
politely explain what you’re doing is often the
difference between receiving a fine or not.
Finally, given the lack of clarity, if in doubt
seek advice. You can ask your local police or
SARAH MARINOVIC is a
principal solicitor at Ainsley
Law – a firm dedicated to
traffic and heavy vehicle
law. She has focussed on this
expertise for over a decade,
having started her career
prosecuting for the RMS, and
then using that experience
as a defence lawyer helping
professional drivers and
truck owners.
many lawyers are happy to provide guidance.
While these steps aren’t failsafe, they will
put you in the best position to avoid a fine.
DISPUTING UNFAIR FINES
If you do receive a fine you can contest it.
With all the confusion and changing laws
there are bound to be people who are fined
without realising they were doing anything
wrong. Given the big fines involved, it’s worth
looking into whether you have grounds to
have the fine waived if you think it was unfair.
There are a few options for review:
• Internal Review – in most States you can
apply to have your fine reviewed by the
issuing body. The instructions are usually
included on the penalty notice. Internal
review is usually the most straightforward
way to have your fine reviewed. If the
authority accepts that the ticket was
incorrectly issued, they will withdraw it.
This has already occurred with several fines
incorrectly issued when Victorian police
misinterpreted the Covid-19 restrictions.
• Court elect – you can choose for your fine
to be referred to court. The magistrate can
dismiss the charge entirely if they accept
that you didn’t break the law. Alternatively,
if you accept that you broke the law they
can often reduce the fine if you have a good
justification. It’s a good idea to seek legal
advice before taking your case to court
as there are risks involved. These include
getting a criminal conviction or a harsher
penalty.
• Time to pay – if your only concern is that
you can’t pay the fine immediately, then you
could consider asking for a payment plan.
Often the revenue department will let you
pay off your fine over time. You can apply
for this by calling the contact number
on the infringement notice. Before going
into a payment plan check whether the
authority will add an additional fee to the
fine for this.
Most importantly, we at Ainsley Law hope
that you and your families are safe and
healthy during this time.
Government websites for
current Covid-19 laws
Queensland – www.covid19.qld.
gov.au/government-actions
NSW – www.nsw.gov.au/
covid-19/what-you-can-andcant-do-under-rules
Victoria – www.vic.gov.au/
victorias-response-coronavirus
Australian Capital Territory –
www.covid19.act.gov.au
Tasmania – coronavirus.tas.
gov.au/families-community/
gatherings
Northern Territory – coronavirus.
nt.gov.au/community-advice/
gatherings
South Australia – www.covid-19.
sa.gov.au/restrictions-andresponsibilities
Western Australia – www.wa.gov.
au/government/documentcollections/covid-19-coronavirusstate-of-emergency-declarations
32 MAY 2020 ownerdriver.com.au