Magistrates Court (Circular Economy Infringement Notices) Regulation 2023

Several key concepts underpin the Regulation, many of which borrow definitions from the Magistrates Court Act or the Circular Economy Act.

Infringement notice: A notice issued under Part 3.8 of the Magistrates Court Act that offers the recipient the option to pay a fixed penalty in lieu of prosecution. The Regulation specifies which offences can be dealt with this way, the penalty amounts, and the required content. If the penalty is paid within the prescribed time, no further proceedings can be taken for that offence. If not paid, the matter may be referred to court.

Reminder notice: A follow‑up notice sent if the initial infringement notice is not paid. The Regulation sets a fixed cost of $34 for serving a reminder notice (section 8(3)). This cost is added to the penalty if the recipient ultimately fails to pay and the matter proceeds. The reminder notice must also identify the authorised person in the same manner as the original notice (section 11).

Infringement notice penalty: The fixed dollar amount that the recipient must pay to discharge liability. For individuals, it is the amount in schedule 1, column 4. For corporations, it is five times that amount (section 8(2)). This multiplier reflects the greater capacity of corporations to pay but also creates a disparity: a sole trader operating through a company structure faces a significantly higher fixed penalty than an individual committing the same offence.

Administering authority: The director‑general of the Transport Canberra and City Services Directorate. This body is responsible for administering the infringement notice scheme for the Circular Economy Act, including assigning unique identification numbers to authorised persons (section 9(b), 11(b)). It also presumably manages the payment system, the issuance of reminder notices, and the referral of unpaid notices to court.

Authorised person: Defined by reference to section 24 of the Circular Economy Act. That section is not reproduced in the Regulation, but it appears to designate certain officers or classes of persons who may exercise enforcement powers, including serving infringement and reminder notices (section 12). The Regulation adds content requirements: an infringement notice or reminder notice must identify the authorised person by full name (or surname and initials) or by a unique number assigned by the administering authority. This requirement avoids anonymous enforcement action but may raise practical issues for authorised persons who are concerned about personal safety or privacy.

Prescribed person: Section 135(1) of the Circular Economy Act allows for a ‘prescribed person’ to be served with certain documents or notifications. The Regulation prescribes the waste manager (section 13). The term ‘waste manager’ is defined in the dictionary of the Waste Management and Resource Recovery Act 2016, which covers persons involved in managing waste and resource recovery operations. This means that a waste manager may receive notices or requirements directly under the Circular Economy Act even if not the alleged offender, potentially exposing them to administrative obligations or liability.

The Regulation directly affects three main groups: alleged offenders, the administering authority and its authorised persons, and waste managers.

Alleged offenders: Any individual or corporation that is reasonably believed to have committed one of the six infringement‑notice‑eligible offences under the Circular Economy Act 2023. The offences are identified only by section numbers and penalty units in the schedule: section 17(1) (50 penalty units), section 19(5) (20 units), section 22(1) (50 units), section 23(6) (50 units), section 26(2) (1 unit) and section 30(3) (5 units). Without the text of the Circular Economy Act, we cannot specify the conduct regulated, but based on the Act’s title and purpose (circular economy, waste reduction) they likely relate to matters such as failure to comply with waste‑sorting duties, unlawful disposal, or reporting obligations. Businesses in the waste and resource recovery sector - including collectors, processors, and landfill operators - are the most probable recipients of infringement notices. Individuals such as householders who breach bin‑sorting rules might also be caught, depending on the scope of the underlying offences.

Administering authority and authorised persons: The director‑general of Transport Canberra and City Services must establish a system for issuing infringement notices, including assigning unique numbers to authorised persons and ensuring that notices comply with the Regulation’s content requirements. Authorised persons (typically enforcement officers) must be appointed under section 24 of the Circular Economy Act and are then empowered to serve notices under section 12 of the Regulation. They must correctly identify themselves on each notice, failure of which could invalidate the notice and affect subsequent prosecution.

Waste managers: Section 13 prescribes the waste manager (defined in the Waste Management and Resource Recovery Act 2016) as a person who may be served documents under section 135(1) of the Circular Economy Act. This likely means waste management companies or entities that control waste facilities may receive notices of enforcement action, compliance orders, or other formal communications directed to them even if the underlying breach was committed by a different entity. This expands the potential reach of enforcement.

The Regulation does not directly affect the courts themselves, but it alters the caseload: infringement notices that are paid never reach court, while those that are unpaid or contested generate court proceedings. The overall effect on court resources depends on the volume of notices issued and the rate of payment.

The Regulation imposes duties on the administering authority and authorised persons, and confers rights on recipients of notices.

Duties of the administering authority: The director‑general of Transport Canberra and City Services must ensure that authorised persons are properly identified on notices. This includes, for authorised persons who use unique numbers, actually assigning those numbers (sections 9(b), 11(b)). The authority must also ensure that corporate recipients’ Australian Company Number (ACN) is included on infringement notices (section 10). This is an additional requirement beyond what the Magistrates Court Act section 121(1)(c) already mandates. Failure to include the ACN could render the notice defective, potentially requiring re‑issuance or withdrawal.

Duties of authorised persons: An authorised person who serves an infringement notice or reminder notice must identify themselves on the notice by their full name (or surname and initials) or by a unique number given by the administering authority (sections 9, 11). They must also, for a company, include the company’s ACN (section 10). The authorised person may serve both infringement notices and reminder notices (section 12). There is no explicit duty to verify the correctness of the underlying offence or penalty amount, but that duty arises from the general law and the Magistrates Court Act.

Rights of recipients: The primary right is to pay the infringement penalty and thereby avoid prosecution and conviction. Payment may be made within the period stated in the notice (usually 14 to 28 days under the Magistrates Court Act). If the recipient believes the notice is invalid (e.g., because the authorised person is not identified, the penalty amount is wrong, or the offence is not one listed in schedule 1), they may choose not to pay and may instead challenge the notice in court. The Regulation does not itself create appeal rights; those arise from the Magistrates Court Act Part 3.8. However, the content requirements are mandatory - a notice that does not comply may be set aside or the offence may be prosecuted de novo without the benefit of the infringement notice process.

Right to be given a reminder notice: The Regulation provides for a reminder notice and sets a fixed cost for serving it ($34). A recipient who has not paid the infringement notice may encounter this added cost. The reminder notice must also comply with the identification requirements.

These duties and rights operate within the broader framework of the Magistrates Court Act. The Regulation does not alter the option to elect court proceedings or the right to remain silent; those remain governed by the general law.

The Regulation provides for fixed penalties for six offences, as set out in schedule 1. The penalties for individuals are shown in column 4; for corporations, the penalty is five times that amount (section 8(2)). The schedule is:

| Item | Offence provision | Offence penalty (penalty units) | Infringement penalty ($) | |------|------------------|--------------------------------|--------------------------| | 1 | 17(1) | 50 | 300 | | 2 | 19(5) | 20 | 120 | | 3 | 22(1) | 50 | 300 | | 4 | 23(6) | 50 | 300 | | 5 | 26(2) | 1 | 32 | | 6 | 30(3) | 5 | 100 |

The offence penalty column (column 3) is the maximum penalty that a court could impose under the Circular Economy Act, expressed in penalty units. At the republication date, one penalty unit is $160 for an individual and $810 for a corporation. So the maximum court penalty for item 1 is 50 x $160 = $8,000 for an individual, or 50 x $810 = $40,500 for a corporation. The infringement penalty of $300 is only 3.75% of the maximum for an individual, and for a corporation it is 5 x $300 = $1,500, or 3.7% of the maximum corporation fine. This stark discount reflects the legislative choice to trade deterrence for administrative efficiency. The infringement penalty is set far below the maximum to encourage payment, but it may also mean that the financial disincentive is too low to deter profit‑driven breaches, especially where the cost of compliance is higher than $300.

Item 5 (section 26(2)) has an infringement penalty of only $32 for individuals. This is a very low amount, suggesting the offence is a technical or minor breach (e.g., failure to provide information or comply with a low‑level direction). At that level, the cost of contesting the notice likely exceeds the penalty, creating a strong incentive to pay even if the recipient believes the notice is incorrect.

The reminder notice service cost of $34 (section 8(3)) is separate from the penalty. If a recipient does not pay the infringement notice and the matter proceeds to court, the court can also award costs, including the reminder notice fee. The Regulation does not specify a fee for the original notice itself; that is typically zero or included in the penalty amount.

Enforcement: if the infringement penalty is not paid within the time specified in the notice (and any reminder), the administering authority may refer the matter to court for prosecution. The court will then hear the case and may impose a penalty up to the maximum (the offence penalty in penalty units). The recipient cannot be convicted solely because they failed to pay the infringement penalty; the prosecution must still prove the offence. However, the failure to pay may be used as evidence of nothing more than the recipient’s choice. The Regulation does not alter these enforcement pathways.

The Regulation operates at the intersection of several ACT laws.

Magistrates Court Act 1930: The Regulation is made under this Act, specifically to activate Part 3.8 (infringement notices). The Part 3.8 provisions govern the form, service, payment, and legal effect of infringement notices. The Regulation adds supplementary requirements (e.g., ACN, identification method) but does not override the parent Act. For example, section 121(1)(c) of the Magistrates Court Act already requires a statement of the time within which the penalty may be paid; the Regulation does not repeat that but adds the ACN requirement for companies. If there were a conflict, the Regulation, being subordinate, would yield to the Magistrates Court Act.

Circular Economy Act 2023: This is the substantive Act whose offences are targeted. The Regulation does not interpret or expand the offences; it only specifies which ones are infringement‑notice eligible and at what fixed penalty. The Circular Economy Act would contain the definitions of the conduct, defences, and maximum penalties. Any amendment to the Circular Economy Act that renumbers or repeals one of the six sections would automatically affect schedule 1 of the Regulation. The Regulation also uses the term ‘authorised person’ as defined in section 24 of the Circular Economy Act, creating a cross‑dependency.

Waste Management and Resource Recovery Act 2016: The Regulation incorporates the definition of ‘waste manager’ from that Act’s dictionary (regulation dictionary). This creates an interaction: the scope of who qualifies as a waste manager for the purposes of section 13 of the Regulation depends on the definition in another Act, which may be amended without direct amendment to this Regulation. Practitioners must consult both Acts to determine whether a client is a prescribed person.

Legislation Act 2001: The Regulation is subject to the general provisions of that Act regarding definitions, numbering, and republication. The value of penalty units is set under section 133 of the Legislation Act (currently $160 individual, $810 corporation). The Regulation also uses notes from that Act and the Corporations Act definitions.

Corporations Act 2001 (Cth): The Regulation requires that infringement notices served on a company (a company registered under the Corporations Act) include its ACN (section 10). This is a unique requirement not found in all infringement notice schemes. It aids identification but imposes a compliance cost on the administering authority to obtain and include the correct ACN.

The Regulation does not interact with common law torts or contracts; its effect is purely administrative and penal.

The Republication No 1 (effective 9 November 2023, republication date 16 November 2023) states that the Regulation has not been amended. The legislation history shows it was notified on 26 October 2023; sections 1 and 2 commenced on that date, and the remainder commenced on 9 November 2023 concurrently with the commencement of the Circular Economy Act 2023 (section 2 of the Regulation, now omitted by operation of the Legislation Act 2001, section 89(4)). There have been no subsequent amendments or editorial changes recorded. The endnotes confirm no amendment history entries. This means the schedule and penalty amounts remain as originally fixed.

The Regulation is likely to be amended in the future if the Circular Economy Act is amended to add or remove offences, or if penalty values are revised to reflect inflation or policy adjustments. As subordinate legislation, it can be updated by the Executive without requiring amendment of the parent Act. The absence of amendment history to date is expected given its short life (less than 2 years at the time of republication). Practitioners should monitor the ACT legislation register for future amendments.

As at the date of the republication (16 November 2023), there is no evidence of any litigation concerning the Regulation. The Regulation is only a few weeks old from its commencement date, so it is unsurprising that no court decisions have yet interpreted its provisions or challenged its validity. However, potential grounds for challenge can be anticipated based on analogous infringement notice cases.

First, challenges to the validity of an infringement notice could arise based on non‑compliance with the content requirements in sections 9 to 11. If an authorised person fails to identify themselves by name or assigned number, or if a reminder notice omits that identification, the notice could be argued to be invalid, and any subsequent prosecution might be stayed or the notice set aside. Courts are generally strict about the mandatory content of infringement notices because they affect a person’s right to choose payment over prosecution.

Second, the corporate multiplier (5x) could be challenged as discriminatory or ultra vires if it is shown to disproportionately affect small businesses or to be inconsistent with the Magistrates Court Act or the Human Rights Act 2004 (ACT). However, such a challenge would be difficult given the long‑standing acceptance of higher corporate penalties.

Third, the prescription of ‘waste manager’ in section 13 may generate disputes about who falls within that definition. The definition in the Waste Management and Resource Recovery Act 2016 may be broad or ambiguous, leading to litigation about whether a particular person or entity was properly served under section 135(1) of the Circular Economy Act.

Lastly, constitutional challenges to infringement notice schemes in general have been rejected in Australian courts, but specific wording in this Regulation may still be tested.

There are no reported cases currently. The litigation history section should be updated as cases emerge.

Several features of the Regulation may catch practitioners and businesses off guard.

Corporate multiplier trap: The Regulation states that the penalty for a corporation is 5 times the amount in column 4 (section 8(2)). That is a steep multiplier. For item 1, a company would pay $1,500, not $300. Many business operators may assume a flat penalty applies and pay the individual amount, only to have the notice considered unpaid and the matter escalate. The administering authority should clearly indicate whether the recipient is an individual or corporation, but the burden is on the recipient to check.

Low penalty for item 5: The infringement penalty of $32 for section 26(2) is so low that it may be uneconomical for a recipient to challenge even if they did not commit the offence. The cost of obtaining legal advice, gathering evidence, and attending court could easily exceed $32. This creates a perverse incentive: the state can issue many low‑value fines knowing that most recipients will pay rather than contest, regardless of factual guilt. This is a recognised dynamic in fixed‑penalty enforcement.

Reminder notice cost: The $34 cost is fixed by section 8(3) and does not vary with the penalty amount. For item 5, the reminder cost exceeds the original penalty. A recipient who delays payment even briefly could find the total liability almost doubled (from $32 to $66). This may be perceived as punitive.

Requirement to include ACN: Section 10 requires the ACN to be included on infringement notices served on companies. If the administering authority omits it, the notice may be invalid. A company that wishes to challenge a notice should verify this requirement. Conversely, an authority that mistakenly serves an individual as a company (or vice versa) may have to reissue a correct notice.

Authorised person identification: The option to use a unique number (section 9(b)) may make it difficult for a recipient to know who issued the notice, especially if they need to contact that person. The administering authority must keep a register linking numbers to actual officers. If that register is not maintained, the right to challenge identification may be undermined.

Waste manager exposure: Section 13 prescribes the waste manager without any accompanying limitation or notification requirement. Waste managers may not be aware that they are prescribed persons and that documents under the Circular Economy Act can be served on them. This could lead to unintended liability if the waste manager fails to respond to a notice because they did not know the prescriptive effect.

No definition of ‘corporation’: The Regulation uses the term in section 8(2) but does not define it. The dictionary relies on the Legislation Act 2001 definition, which includes a body corporate. However, partnerships and unincorporated associations are not corporations; they would be treated as individuals or as multiple individuals, potentially avoiding the multiplier. Practitioners should check entity structure before advising on penalty amounts.

Schedule 1 is exhaustive: Only the six listed offences are infringement‑notice eligible. Any other offence under the Circular Economy Act cannot be dealt with by infringement notice. An authorised person who issues a notice for a non‑listed offence acts without authority, and the notice is void. Recipients should verify that the notice cites one of the six correct provisions.

Compliance with the Regulation requires different actions depending on the stakeholder.

For the administering authority (director‑general of Transport Canberra and City Services):

• Establish and maintain a system for assigning unique identification numbers to authorised persons under sections 9(b) and 11(b). The system must ensure that each authorised person has a number that appears on their notices.
• Ensure that all infringement notice templates and reminder notice templates include fields for: the authorised person’s full name or surname and initials (or unique number), and - for company recipients - the company’s ACN (section 10).
• Verify that penalty amounts used in the schedule are current. Although the Regulation has not been amended, if penalty units change or if the Circular Economy Act is amended, the schedule amounts may need updating.
• Ensure that reminder notices also comply with the identification requirement and that the cost of $34 is correctly added only once per notice series.
• Train authorised persons on the correct identification method: they should either use their name (full name or surname and initials) consistently, or use the assigned unique number. Mixing methods between the initial notice and the reminder notice could cause confusion but is not prohibited.

For authorised persons:

• Always include your identifying information on every infringement notice and reminder notice you serve. If you rely on a unique number, ensure you have received it from the administering authority before issuing any notice.
• Check that the offence you are issuing the notice for is listed in schedule 1. Do not attempt to use an infringement notice for any other Circular Economy Act offence.
• For any recipient that is a company (as defined by the Corporations Act), request the ACN from the administering authority’s records or from publicly available registers. Include the ACN in the notice.
• Serve the notice in accordance with the Magistrates Court Act Part 3.8 (not detailed here but typically personal service or post to last known address).

For recipients of infringement notices:

• Verify that the notice identifies the authorised person in accordance with sections 9 or 11. If the identification is missing or ambiguous, consider challenging the notice.
• Check whether the notice refers to an offence listed in schedule 1. If not, the notice is invalid.
• If you are a company, check that your ACN is included. If omitted, the notice may be defective.
• Determine whether the penalty amount is correct for your entity type: individual amount from column 4, or corporate amount (5 times that figure). If the amount is wrong, do not pay; instead seek clarification or challenge.
• If you believe the notice is valid but wish to avoid court, pay the penalty within the time stated (usually 14 to 28 days). If you pay after the deadline, the notice may still be accepted, but the matter may already be referred to court.
• Keep a copy of the notice and proof of payment for your records.
• If you receive a reminder notice, note the additional $34 cost. Decide whether to pay or contest.

For waste managers (prescribed persons):

• Become aware of the prescription under section 13 of the Regulation. This means documents under section 135(1) of the Circular Economy Act may be served on you. Ensure your business has a system for receiving and responding to such documents, as failure could lead to enforcement action.
• If you are not the alleged offender but receive a notice, check whether the circular Economy Act imposes an independent duty on you. Seek legal advice if uncertain.

Compliance is essentially a matter of attention to form and accuracy. The Regulation does not impose ongoing reporting obligations or record‑keeping requirements beyond those inherent in issuing and paying notices. The main risk is invalidity due to technical defects, which can be mitigated by careful drafting of templates and training of officers.