Magistrates Court (Fair Trading Australian Consumer Law Infringement Notices) Regulation 2024

The regulation uses several defined and contextual concepts. “Relevant provision” is defined in the dictionary as section 34GA(1) of the Fair Trading (Australian Consumer Law) Act 1992. That is the only offence to which this regulation applies. “Infringement notice” and “reminder notice” are terms borrowed from the MC Act Part 3.8; the regulation does not redefine them but relies on the MC Act dictionary. The dictionary does note that terms used in the regulation have the same meaning as in the MC Act. An infringement notice is a notice that offers the recipient an alternative to prosecution by paying a fixed penalty; a reminder notice is a follow‑up notice if the initial notice is not paid. The administering authority is stated in section 5 to be “the commissioner for fair trading”. That official is responsible for the infringement notice system under this regulation. “Authorised person” is defined in the dictionary as an investigator appointed under section 36 of the Fair Trading (Australian Consumer Law) Act 1992. Only such investigators may serve infringement notices and reminder notices (section 11). Section 12 then separately prescribes “a public servant” for the purposes of section 135(1) of the MC Act. The reader must look to the MC Act to understand what power or duty that confers; the regulation does not elaborate. The infringement notice penalty is set at $960 for an individual and $4,800 for a corporation (section 7(1),(2)). The cost of serving a reminder notice is $34 (section 7(3)). These amounts are not multiples of the penalty unit values noted in the republication ($160 for an individual, $810 for a corporation); $960 is exactly 6 units for an individual, but $4,800 is not a round multiple of $810 (5.93 units), which may create indexing complications if penalty units are adjusted. “Company” is defined in section 9(2) as a company registered under the Corporations Act, and an infringement notice served on a company must include its ACN. This is an additional requirement beyond the general content requirements in section 121(1)(c) of the MC Act. The dictionary also refers readers to the Legislation Act 2001 for definitions of “corporation”, “individual”, and “public servant”, confirming that those terms bear their standard statutory meanings.

The regulation directly affects three groups. First, any person (individual or corporation) who is alleged to have committed an offence against section 34GA(1) of the Fair Trading (Australian Consumer Law) Act 1992. That person may be served with an infringement notice and thereby becomes liable to pay the fixed penalty as an alternative to being prosecuted in court. The penalty payable by an individual is $960; by a corporation, $4,800. The recipient must also deal with reminder notices and any additional $34 cost if a reminder is sent. The regulation does not create any class of persons exempt from this regime; it applies on its face to all alleged offenders against that single provision. Second, the commissioner for fair trading is the administering authority (section 5). That means the commissioner (or delegates) is responsible for issuing infringement notices, receiving payments, and administering the system under Part 3.8 of the MC Act. The regulation does not specify the resources or powers of the commissioner in this role, but the function carries an implicit compliance burden. Third, authorised persons, defined as investigators appointed under section 36 of the FT(ACL) Act. Only those investigators may serve infringement notices and reminder notices (section 11). The regulation also prescribes “a public servant” in section 12, but the effect of that prescription is opaque without reference to the MC Act. If section 135(1) of the MC Act allows any prescribed person to do something (e.g., serve notices or give evidence), then the regulation makes all public servants in the ACT prescribed, which could broaden the pool of persons who may act under that provision. However, that does not override the specific authorisation in section 11, which is limited to investigators. This creates potential confusion: an investigator must be a public servant (likely), but a public servant who is not an investigator may have some other role under section 135(1). The regulation does not require amendment of any primary law; it operates as a subordinate instrument. Businesses that operate in the ACT and engage in conduct captured by section 34GA(1) , which is likely related to false or misleading representations or unfair practices under the Australian Consumer Law , are the most likely targets. The regulation does not affect interstate traders directly, but they may be caught if their conduct occurs in the ACT. Consumers and competitors who suffer loss from such conduct may see a reduction in court proceedings as matters are diverted to infringement notices, though the regulation does not provide for compensation or redress; it is purely a penal mechanism.

The regulation itself imposes only one explicit duty: the duty to pay the prescribed penalty if an infringement notice is issued and the recipient chooses not to contest the matter. The duty is set out in the structure of the infringement notice system: payment of the penalty discharges liability for the offence (this is implicit from the MC Act framework, not stated here). The rights of the recipient are not spelled out in the regulation; they are found in the Magistrates Court Act 1930, Part 3.8. The regulation merely provides the mechanism for issuing notices and sets the penalty amount. A person served with an infringement notice has the right to elect to have the matter dealt with by a court, which likely involves not paying the notice and either being prosecuted or disputing the notice in the Magistrates Court. That right is not created by this regulation, but by the parent Act. The regulation also gives rights of identification: section 8 requires that an infringement notice served on a person must identify the authorised person by full name (or surname and initials) or by a unique number assigned by the administering authority. Section 10 imposes the same requirement for reminder notices. Section 9 requires that an infringement notice served on a company must include the company’s ACN. These are duties imposed on the person serving the notice (the authorised person) and are rights of the recipient to know who issued the notice and the correct corporate identifier. The regulation does not specify the consequences of a failure to comply with these content requirements, but presumably such a notice could be invalid or challengeable under the MC Act. The regulation also imposes a duty to pay an additional $34 cost if a reminder notice is served (section 7(3)). That cost is stated as “the cost of serving a reminder notice”, but it does not explicitly say it is payable by the person served. It may be that the administering authority recovers that cost from the recipient as an additional amount; practical precedent from similar schemes suggests yes, but the regulation is ambiguous. The recipient’s right to challenge the reasonableness of that cost is not provided. There is no duty in the regulation to respond or to provide information; the system is purely an offer to pay or not.

The regulation fixes three monetary amounts. The infringement notice penalty is $960 for an individual and $4,800 for a corporation (section 7(1),(2)). These are the amounts that, if paid, avoid prosecution for the section 34GA(1) offence. The penalty for a corporation is exactly five times the individual penalty. This ratio is common in infringement notice schemes but is not required by the parent Act. The individual penalty corresponds to 6 penalty units (at $160 per unit); the corporate penalty corresponds to about 5.93 times the corporate penalty unit value of $810, not a round number. This may be because the drafters set the amounts in dollar terms rather than as multiples of units, which creates a risk of misalignment if penalty units are later adjusted under the Legislation Act 2001 section 133. The regulation does not contain a built‑in indexing mechanism; the amounts would require amendment to be updated. The third amount is the cost of serving a reminder notice: $34 (section 7(3)). The regulation does not state that this cost is added to the penalty if a reminder is required, but in similar infringement notice schemes the recipient pays that cost when the reminder is sent. If the recipient pays the original penalty before a reminder is issued, the $34 cost is avoided. Enforcement of unpaid penalty amounts is not addressed in the regulation. If a recipient does not pay and does not elect to go to court, the MC Act Part 3.8 would likely provide that the matter may be prosecuted. The regulation does not create any automatic enforcement mechanism such as a penalty notice becoming a court order; that would require further legislative provisions. The authorised persons (investigators) are empowered to serve the notices (section 11) but not to collect payments or enforce non‑payment. The administering authority (the commissioner) is responsible for the system. There is no provision for withdrawal of a notice or for variation of penalty. The regulation does not specify time limits for payment; those would be in the MC Act. The penalty amounts appear designed to be lower than the maximum court‑imposed fine for the offence, which is the classic trade‑off for an infringement notice: the recipient gets a discount for not exercising procedural rights. The incentive effect is that paying $960 (individual) is cheaper than the time and risk of court, but the fine may be higher if a court convicts. For businesses, the $4,800 penalty may be a relatively minor cost of doing business if the expected profit from the contravening conduct is higher, which could reduce deterrence.

The regulation sits within a legislative framework of at least three ACT Acts and one Commonwealth Act. Primary interaction: It is made under the Magistrates Court Act 1930 and gives effect to Part 3.8 of that Act for a specific offence. Part 3.8 contains the general infringement notice rules, including time for payment, court elections, and validity of notices. This regulation must be read in conjunction with that Part. Second interaction: The offence to which it applies is section 34GA(1) of the Fair Trading (Australian Consumer Law) Act 1992. That Act enforces the Australian Consumer Law (ACL) as a law of the ACT (Schedule 1). Section 34GA(1) is not reproduced here; it likely prohibits specific conduct such as making false or misleading representations in trade or commerce. The regulation does not amend or repeal that provision; it merely adds an enforcement option. Third interaction: The definition of “authorised person” cross‑references section 36 of the Fair Trading (Australian Consumer Law) Act 1992, which deals with appointment of investigators. Those investigators are the only persons who may serve notices under this regulation. That means the commissioner cannot delegate notice‑serving power to general compliance officers unless they are also appointed as investigators under section 36. Fourth interaction: Section 12 prescribes “a public servant” for the purposes of section 135(1) of the MC Act. Section 135(1) is not quoted; it may deal with who can take certain actions under Part 3.8, such as issuing certificates or processing payments. By making all public servants prescribed, the regulation broadens the pool of persons who can act under that provision beyond the authorised persons defined earlier. There may be an inconsistency: authorised persons (investigators) are a subset of public servants, so public servants who are not investigators could be involved in some administrative tasks but should not serve notices. Fifth interaction: The regulation may indirectly interact with the Competition and Consumer Act 2010 (Cth) because the ACL applied in the ACT mirrors the Commonwealth ACL. However, this regulation is a purely territory law; it does not affect federal enforcement (by the ACCC) of the same conduct. The ACCC could still prosecute for an ACL contravention in the ACT, and the territory infringement notice regime does not bar Commonwealth action. Sixth interaction: The dictionary notes that the Legislation Act 2001 defines “corporation”, “individual”, and “public servant”. Those general definitions apply. The regulation does not cite or interact with the Criminal Code 2002 (ACT) unless the MC Act Part 3.8 incorporates it. There is no interaction with the Spent Convictions Act 2000 or similar; payment of an infringement notice is not a conviction. The regulation is a standalone subordinate law that only becomes operative if an investigator issues a notice for the specific offence. It does not create any new powers of investigation or entry; those remain in the FT(ACL) Act.

The regulation was made as part of the Housing and Consumer Affairs Legislation Amendment Act 2024 (A2024-29). Section 5 and Schedule 2 of that Act created the regulation. The regulation is taken to have been made under the Magistrates Court Act 1930 (see section 5(1) of A2024-29). It was notified on the ACT legislation register on 9 July 2024 and, under section 5(2)(a), the regulation itself (the instrument) was taken to have been notified on that date. Section 1 (name of regulation) commenced on 9 July 2024 (under the Legislation Act 2001 section 75(1)). The remainder of the regulation commenced on 16 July 2024 (section 5(2)(b) of A2024-29). The republication is number 1, effective 16 July 2024, and the status annotation says “Regulation not amended”. There are no amendment acts, no editorial changes under Part 11.3 of the Legislation Act, and no modifications or uncommenced provisions. The legislation history endnote confirms that the regulation was made as part of a larger omnibus amendment Act that also dealt with housing and consumer affairs matters. The regulation is entirely new; it had no predecessor. There is no repeal history or expiry date. The act that created it (A2024-29) did not itself amend the MC Act; it empowered the making of this subordinate law under that Act. The regulation is a subordinate law subject to disallowance by the Legislative Assembly (likely within 6 sitting days after notification), but no disallowance motion has been recorded. As of the republication date, it is in force for the indefinite future unless repealed or expired. Because it is tied to a specific offence provision, any amendment to section 34GA(1) of the FT(ACL) Act (e.g., renumbering) would require a corresponding amendment to this regulation’s dictionary. The regulation does not contain a sunset clause or review date. The amendment history is minimal, reflecting its recent enactment. Any future amendments would appear in later republications.

As at the republication date (16 July 2024), the regulation is brand new, having been in force only from that same date. There are no reported cases in which this regulation has been considered, applied, or challenged. The Act that created it (A2024-29) was passed and notified only days earlier. The infringement notice system under the MC Act Part 3.8 has a longer history, but there are no known cases that interpret this specific regulation. It is possible that a person served with an infringement notice under this regulation may challenge its validity in the Magistrates Court on grounds such as improper content (e.g., failure to identify the authorised person or include the ACN), excessive penalty (though the amount is fixed by regulation and would be hard to attack unless unreasonable), or that the notice was served by someone who was not an authorised person (i.e., not an investigator). Any such challenges would rely on the MC Act and the regulation’s own requirements. A challenge could also be made to the underlying offence (section 34GA(1) of the FT(ACL) Act), but that is independent of this regulation. The regulation does not create a defence of reasonable mistake or due diligence; those would be in the offence provision. There is no indication that the regulation has been subject to judicial review or constitutional challenge. It is a territory law operating within the ACT’s legislative competence; no constitutional issues arise unless the offence relates to interstate trade or federal matters, which is unlikely for the specific section. The absence of litigation history means that many interpretive questions remain open, particularly regarding the interaction between section 11 (authorised persons) and section 12 (prescribed public servants). Future litigants may test whether a notice served by a public servant who is not a section 36 investigator is valid. Similarly, the $34 reminder cost could be disputed if it is not authorised by the MC Act or is imposed without proper authority. For now, the regulation operates on an untested foundation. Practitioners dealing with a notice under this regulation should be aware that legal precedent is non‑existent and the meaning of several provisions (especially the effect of section 12) will need to be resolved by reference to the MC Act and possibly by the courts.

Several aspects of this regulation may catch unwary readers or compliance officers. First, the regulation applies only to one offence: section 34GA(1) of the Fair Trading (Australian Consumer Law) Act 1992. It does not cover all Australian Consumer Law offences. Someone who receives an infringement notice for a different ACL offence (e.g., section 29 or section 18) cannot rely on this regulation; that notice would be invalid unless separately authorised. The regulation does not list the text of the offence, so the recipient must look up the FT(ACL) Act to understand what conduct is alleged. Second, the authorised persons who can serve notices are narrowly defined as investigators appointed under section 36 of the FT(ACL) Act. Section 11 says “An authorised person may serve the following: (a) an infringement notice … (b) a reminder notice”. Section 12 then says “A public servant is prescribed” under MC Act section 135(1). This creates a potential trap: a public servant who is not an investigator may believe they can serve a notice because they are prescribed under section 135(1), but they cannot , only investigators can. Conversely, an investigator who is not a public servant (e.g., a contracted investigator) may not be able to act because the MC Act may require the server to be a public servant. The regulation does not harmonise these two provisions. Third, the penalty for a corporation ($4,800) is not a clean multiple of the corporate penalty unit ($810), which may cause indexing problems. If the ACT government later adjusts penalty units under the Legislation Act 2001, the $4,800 amount will not automatically update; it requires amendment. This could result in the infringement notice penalty becoming either more or less than the intended ratio to court‑imposed fines. Fourth, the reminder notice cost of $34 appears to be a fixed amount not tied to penalty units or inflation, with no indexing. Over time, the real cost of sending a reminder may increase, but the amount will remain $34 unless amended. Fifth, the regulation requires that an infringement notice served on a company must include the company’s ACN (section 9). Failure to include the ACN could make the notice defective. However, the regulation does not state whether such a defect is fatal or can be cured. Sixth, the regulation does not specify time limits for payment or for serving reminder notices. Those are left to the MC Act Part 3.8, but a person reading only this regulation may miss them. **Seventh, the ‘relevant provision’ definition uses a precise reference to section 34GA(1) of the FT(ACL) Act. If that section is renumbered or relocated in future, this regulation will need a consequential amendment; until then, it will refer to a wrong provision. **Eighth, the regulation creates an alternative to prosecution but does not provide a mechanism for a person to dispute the facts or seek a review before paying. The only option is to refuse to pay and risk court proceedings. **Ninth, the administering authority is the commissioner for fair trading, but the regulation does not specify where payments must be sent or how to obtain a receipt. **Tenth, there is no provision for withdrawal or cancellation of a notice if it was issued in error. The MC Act may provide this, but it is not in the regulation.

Compliance with this regulation depends on the role of the person or entity. If you are a recipient of an infringement notice under this regulation, you have two choices. First, you may pay the prescribed penalty: $960 for an individual or $4,800 for a corporation. Payment must be made within the time specified in the notice (likely 28 days under MC Act Part 3.8; check the notice itself). Paying in full and on time will extinguish your liability for the underlying offence and you will not be prosecuted. If you receive a reminder notice, you must decide whether to pay the original penalty plus the $34 cost of serving the reminder, or to continue to dispute. The regulation does not give you the right to request an extension. Second, you may elect to have the matter dealt with by a court. Do not pay the notice; instead, follow the procedure in the MC Act Part 3.8 (e.g., notifying the administering authority that you wish to defend the matter). If you choose this route, you risk prosecution and a potentially higher fine if convicted. If you are an entity subject to compliance obligations under the ACL (e.g., a trader), the best compliance strategy is to avoid committing the offence in section 34GA(1) of the FT(ACL) Act. That section likely prohibits false or misleading representations in connection with the supply of goods or services. Train staff on these requirements; implement monitoring and internal reporting. Understand that an infringement notice may be issued by an investigator without prior warning, and the penalty is fixed. There is no negotiation or discount for early payment. If you are an authorised person (investigator), you may serve infringement notices and reminder notices. Ensure each notice complies with the content requirements: you must be identified by your full name (or surname and initials) or your unique number from the administering authority (section 8). For notices to a company, include the ACN (section 9). For reminder notices, include the same identification (section 10). Keep records of service. Do not delegate the serving power to anyone who is not an investigator under section 36 of the FT(ACL) Act. If you are a public servant who is not an investigator, you should not serve notices unless you are separately authorised under the MC Act section 135(1) for some other purpose. The regulation’s section 12 may allow you to perform administrative functions (e.g., processing payments) but not to issue enforcement notices. General compliance for all: Keep a copy of the notice and any correspondence. Note that payment of a penalty under this regulation is not an admission of guilt, but it prevents prosecution. Check the ACT legislation register for any future amendments to the regulation or the penalty amounts. If the penalty units are changed, the dollar amounts in this regulation may become outdated; monitor for amending instruments. If you are a business, factor the $4,800 penalty into your compliance budget as a potential cost of non‑compliance. Consider legal advice before electing to go to court, as the cost of defending even a minor case may exceed the penalty. Remember that this regulation applies only in the ACT and only to section 34GA(1); other enforcement mechanisms (ACCC action, private litigation) remain available.