Penalty Notices, Policing and Executive Discretion: Examining the Nature and Effects of Criminalisation in the COVID-19 Pandemic Response

Abstract

Police-issued penalty notices were heavily relied upon to deter and punish breaches of emergency restrictions in the Coronavirus 2019 (COVID-19) pandemic. This article critically examines the use of penalty notices in this context and explores the implications for our understanding of contemporary criminalisation practices. The origins, drivers and existing theoretical accounts of penalty notice regimes are first examined. Attention is drawn to their often overlooked disruptive and punitive effects in the domains of public order policing and administrative fines enforcement. Against this background, a case study of the COVID-19 Delta variant outbreak in New South Wales, Australia is presented. This case study exemplifies the substantial discretionary, penal and quasi-judicial functions ceded to police and state debt recovery agencies through modern penalty notice regimes. It exemplifies the ‘chameleon criminalisation’ enacted by penalty notices. Despite appearing transactional and benign, ‘on-the-spot’ fines subtly expand executive power and disproportionately penalise the most vulnerable and marginalised.