Magistrates Court (Fisheries Infringement Notices) Regulation 2004

The regulation builds on several defined concepts. Fisheries legislation means the Fisheries Act 2000 and the Fisheries Regulation 2001 (s 5). This definition is narrow; it does not include any other ACT law that might relate to fishing, such as the Nature Conservation Act 2014, even though that Act defines conservation officers who serve notices. Infringement notice offence is not defined separately but is effectively any offence listed in schedule 1, column 2, to which part 3.8 of the Magistrates Court Act is applied by s 7. The administering authority for these offences is the conservator of flora and fauna (s 6). This is a single statutory office holder, not a department, which concentrates responsibility for the infringement notice system. Authorised people are conservation officers as defined in the Nature Conservation Act 2014 dictionary (s 12(2)). Only conservation officers may serve infringement notices and reminder notices. The regulation does not authorise any other category of public official to issue notices for fisheries offences. Infringement notice penalty is the dollar amount in schedule 1, column 4, for an individual, and five times that amount for a corporation (s 8). This is a flat sum unrelated to the gravity of the particular incident, the offender’s prior record, or any aggravating factors. Reminder notice is not defined but the regulation prescribes a service cost of $34 for such a notice (s 8(3)). The Magistrates Court Act part 3.8 would govern when and how a reminder notice is issued. Penalty units appear in column 3 of schedule 1 as the maximum court penalty for each offence. At the republication date, the value of a penalty unit was $150 for an individual and $750 for a corporation (see note on page 1). The infringement penalty is always significantly lower than the maximum court penalty. For example, item 12 of schedule 1 (offence under s 76(2) of the Fisheries Act) carries a maximum of 100 penalty units ($15,000 for an individual) but an infringement penalty of only $250. That gap is the economic incentive to pay without contesting. The regulation does not explain how the infringement penalties were set; they appear arbitrary in relation to the penalty units. Many offences with 10 penalty units maximum have a $100 infringement penalty, while an offence with 50 penalty units also has a $250 infringement penalty in one case and $100 in another. The schedule shows no consistent ratio. This lack of proportionality could be challenged as irrational, but no such challenge is recorded in the source. Another key concept is the ACN requirement in s 9. An infringement notice served on a company must include the company’s ACN. This is additional to the requirements in the Magistrates Court Act s 121(1)(c). The purpose is likely to ensure accurate identification of the corporate entity, but it also imposes an administrative burden on the conservation officer to verify the ACN. Failure to include the ACN may render the notice invalid, though the regulation does not state that consequence.

The regulation primarily affects three groups: individuals who fish recreationally or commercially in ACT waters, corporations and business entities that conduct fishing operations, and the public officials responsible for enforcing fisheries laws. For individual recreational fishers, the main impact is that relatively minor breaches of the Fisheries Act or Regulation can be dealt with by an on the spot fine rather than a court appearance. A person who forgets a licence, uses a prohibited fishing method, or takes an undersized fish may receive an infringement notice with a penalty between $100 and $250. This is a modest sum compared to the maximum court penalty, but it still represents a direct financial loss. For an individual on a low income or a pensioner who fishes for subsistence, $250 is not trivial. The regulation does not provide for hardship, payment plans, or the ability to dispute the notice informally. For corporations, the effect is more severe because the penalty is multiplied by five. A company that operates a fishing charter business, for example, could receive an infringement notice of $1,250 for the same offence that would cost an individual $250. That multiplier applies regardless of the company’s size or turnover. A small family run business may be hit as hard as a large corporation. The regulation also requires the notice to contain the company’s ACN, which means the company must ensure its ACN is on record with the administering authority or risk receiving a defective notice. For conservation officers, the regulation specifies the procedural requirements they must follow when serving notices. Officers must identify themselves by full name, surname and initials, or a unique number (ss 10 and 11). This provides accountability but also creates a compliance burden: the officer must have a unique number issued by the administering authority and must record it on every notice. Failure to do so could invalidate the notice. The administering authority (the conservator of flora and fauna) is affected because it must maintain a system of unique numbers for conservation officers and ensure that notices are correctly issued. The regulation does not specify how this system is to be funded, so the costs fall on the conservation agency’s budget. The Magistrates Court is indirectly affected: fewer fisheries cases go to trial, reducing court congestion but also reducing the development of case law on the interpretation of fisheries offences. Legal practitioners who advise on fisheries matters must be aware that many offences can now be resolved by payment, which may reduce demand for representation but also create a need for advice on whether to pay or contest. Journalists and researchers looking at enforcement patterns can use the schedule to see which offences are most commonly targeted by infringement notices.

The regulation imposes specific duties on conservation officers and on recipients of infringement notices, and it preserves certain rights under the Magistrates Court Act. Duty of conservation officers: When serving an infringement notice or a reminder notice, the officer must identify themselves in one of two ways: by their full name, or surname and initials, or by a unique number assigned by the administering authority (ss 10 and 11). This duty ensures that the recipient can verify the officer’s identity. Additionally, if the notice is served on a company, the officer must include the company’s ACN in the notice (s 9). This is an extra requirement beyond what the Magistrates Court Act demands. The officer must also ensure that the offence is listed in schedule 1 and that the penalty is correct, including the five times multiplier for corporations. Duty of the recipient: Upon receiving a valid infringement notice, the recipient has no legal duty to pay immediately, but if they choose to pay, they must do so within the period specified in the notice (usually 28 days under the Magistrates Court Act). If they do not pay, they have no duty to respond; the matter may then proceed to enforcement or prosecution. However, if a reminder notice is served and the recipient does not pay, additional costs ($34) may be added. Rights of the recipient: The most important right is to elect to have the matter dealt with by a court rather than paying the infringement penalty. This right arises under the Magistrates Court Act, not directly under this regulation, but s 7 applies part 3.8 of that Act, so that right is preserved. The recipient can contest the allegation, raise defences, and have the matter determined by a magistrate. They also have the right to receive a notice that complies with the content requirements. If the notice fails to identify the authorised person correctly, or lacks the ACN for a company, it may be invalid, and the recipient could argue that no valid infringement notice was served. The regulation does not specify the consequence of a defective notice, but the general law would treat it as a nullity. The recipient also has the right to be free from further enforcement action once the penalty is paid: payment constitutes a conviction and the matter is closed. Duty of the administering authority: The authority must maintain a system for assigning unique numbers to conservation officers and must ensure that officers are aware of their identification obligations. The authority may also need to publish or provide guidance on which offences are infringement notice offences. Corporate recipients have the additional duty to ensure that their ACN is accurate if they intend to pay; if the notice contains an incorrect ACN, the recipient should not rely on the notice. The regulation does not give a corporation the right to demand a corrected notice.

The penalties under this regulation are fixed sums, not discretionary. For individuals, the amounts are either $100, $150, or $250, depending on the offence (schedule 1, column 4). For corporations, every amount is multiplied by five, yielding $500, $750, or $1,250. These amounts are low relative to the maximum court penalties listed in column 3, which range from 5 penalty units ($750) for the sole Regulation offence to 100 penalty units ($15,000) for the most serious Act offence. The infringement penalty for the 100 penalty unit offence is only $250 for an individual, a discount of 98.3%. That enormous gap may undermine general deterrence: the expected cost of a breach is very low if the offender pays quickly. The regulation also imposes a $34 cost for serving a reminder notice (s 8(3)). This cost is added to any unpaid penalty if the matter proceeds to enforcement. The source does not specify whether the $34 is indexed or can be waived. Enforcement of unpaid infringement notices proceeds under the Magistrates Court Act part 3.8. Generally, if the penalty is not paid within the specified period, the administering authority may either serve a reminder notice or commence court proceedings. The regulation does not create any additional enforcement powers; it merely designates the pathway. The practical consequence is that a person who does not pay and does not elect court may eventually be prosecuted for the original offence, and if convicted, face the higher court penalty plus costs. The regulation does not allow for the infringement penalty to be increased or decreased based on circumstances. There is no provision for a warning in lieu of a notice, nor for a lower penalty for early payment. The penalty is a fixed take it or leave it offer. For corporations, the five times multiplier is significant. Consider a small charter company with two directors who both fish; if each receives separate infringement notices, the company could rack up multiple $1,250 penalties quickly. The regulation does not cap the total liability for a corporation per incident. The penalty for the single Regulation offence (item 1 of part 1.2) is $100 for an individual, $500 for a corporation: the same ratio. The enforcement of corporate penalties relies on the usual debt recovery mechanisms under the Magistrates Court Act. The regulation does not impose any additional sanctions, such as licence suspension, for non payment. However, the underlying Fisheries Act may have separate suspension powers. The total compliance cost for an alleged offender includes not only the penalty but also potential legal fees if they contest, and the time and risk of a court outcome. The system is designed to incentivise payment, but the low penalties may also reduce the incentive to comply with the underlying rules in the first place, particularly for commercial operators who factor in the low expected cost of an infringement notice.

This regulation operates as a subordinate instrument under the Magistrates Court Act 1930, specifically part 3.8. Section 7 declares that part 3.8 applies to the listed offences. That part contains provisions on service, payment, enforcement, and the effect of payment (deemed conviction). Any amendment to part 3.8 will automatically affect how this regulation’s infringement notices are handled. The regulation does not stand alone; it depends entirely on the parent Act. The regulation also interacts with the Fisheries Act 2000 and the Fisheries Regulation 2001 (together defined as fisheries legislation in s 5). It does not amend those laws; it merely selects which of their offence provisions can be enforced by infringement notice. A person charged under the Fisheries Act could be served an infringement notice only if the offence appears in schedule 1. If a new fisheries offence is created and not added to schedule 1, it cannot be dealt with by infringement notice under this regulation. Conversely, if an offence is removed from the schedule, the infringement notice pathway closes. The regulation interacts with the Nature Conservation Act 2014 because the definition of conservation officer in s 12(2) refers to the dictionary of that Act. That Act was amended in 2015, and consequential amendments updated the regulation. Thus, any changes to the definition of conservation officer in the Nature Conservation Act will automatically flow through to this regulation. The regulation also interacts with the Corporations Act (Commonwealth) via s 9, which requires an ACN on notices served on companies. This is a unique intersection: a territorial law requiring a federal identifier on a notice. The regulation does not specify what happens if the company does not have an ACN (e.g., a foreign company), but the definition of company in s 9(2) is a company registered under the Corporations Act, so it only applies to Australian registered companies. The Legislation Act 2001 governs the republication, amendment, and editorial changes to this regulation. The note on page 1 explains that penalty unit values are set under s 133 of the Legislation Act. That means the infringement penalty amounts in schedule 1 are fixed in dollars, not in penalty units, so they are not automatically adjusted when the penalty unit value changes. The regulation would need to be amended to update amounts. The Magistrates Court Act 1930 also interacts with the Criminal Code 2002 (ACT) generally, but the regulation does not reference it. Infringement notice offences are regulatory and may not carry the full criminal procedure protections, but the Code’s principles of criminal responsibility would apply if a matter goes to court. The regulation does not create any new interaction with the Human Rights Act 2004 (ACT), but a recipient could arguably challenge the system as a violation of the right to a fair trial if procedural safeguards are inadequate. No such challenge appears in the source. The regulation’s content requirements (ss 9-11) are additional to those under the Magistrates Court Act, so the interaction is additive.

The regulation was originally made as SL2004-5 and notified on 22 January 2004. It commenced on 23 January 2004 (s 2 of the original). The first amendment was by the Court Procedures (Consequential Amendments) Act 2004 (A2004-60), which commenced on 10 January 2005. That amendment updated s 3 (purpose) and s 7 (infringement notice offences) to reflect changes in the Magistrates Court Act reference. It also made editorial amendments. The second amendment was by Magistrates Court (Fisheries Infringement Notices) Amendment Regulation 2014 (No 1) (SL2014-28), notified on 12 November 2014 and commencing 13 November 2014. This amendment had two effects: it substituted a new s 12 (authorised people) and it replaced schedule 1 in its entirety. The 2014 substitution is the reason the schedule now contains 24 items under the Fisheries Act and one under the Regulation. The previous schedule presumably listed different offences or penalties. The third amendment was by the Nature Conservation Act 2014 (A2014-59), which amended s 12 to refer to the new definition of conservation officer in the Nature Conservation Act dictionary. That amendment commenced on 11 June 2015. The fourth amendment was by the Statute Law Amendment Act 2015 (A2015-15), which made further technical amendments to s 12. That commenced on 10 June 2015. The regulation has also undergone multiple editorial changes under the Legislation Act part 11.3, including renumbering and updating of notes. The republication history in endnote 5 shows six republications (R1 to R6). R1 was the original. R2 (1 November 2004) incorporated editorial amendments and the addition of endnotes. R3 (10 January 2005) incorporated the 2004 Court Procedures amendments. R4 (13 November 2014) incorporated the 2014 amendment regulation. R5 (10 June 2015) incorporated the Statute Law Amendment Act changes. R6 (11 June 2015) incorporated the Nature Conservation Act changes. The amendment history shows that the regulation has been stable in structure but the schedule of offences has been updated at least once. Notably, the 2015 amendments were primarily to update the definition of authorised people, reflecting the reorganisation of ACT conservation law. There is no indication that the infringement penalty amounts have been increased since 2004; they remain at $100, $150, $250 levels. Given that penalty unit values have risen (currently $150, up from perhaps lower values in 2004), the effective real value of infringement penalties has declined. The source does not include any explanatory material about why the amounts were set at these figures. The amendment history also shows that s 2 (commencement) was omitted at some point as an editorial change under the Legislation Act. That is a formal, not substantive, change. The regulation has not been repealed, and no expiry has been noted.

The source does not mention any litigation directly concerning this regulation. The regulation itself is a procedural instrument; it is unlikely to be the subject of a standalone challenge. However, the underlying infringement notice system under the Magistrates Court Act part 3.8 has been litigated in the ACT generally. Cases may have considered whether a notice complied with the content requirements of s 10 or s 11 of this regulation. For example, if a conservation officer failed to identify themselves correctly, a recipient might have argued that the notice was invalid. No such case is recorded in the source. The regulation has been amended several times without any indication that amendments were prompted by litigation. The fact that the schedule was completely replaced in 2014 suggests that the list of eligible offences was reviewed administratively, not in response to a court decision. The absence of litigation could indicate that the infringement notice system operates smoothly, or that recipients lack the incentive or resources to challenge notices. The penalties are small enough that the cost of legal advice may exceed the penalty itself. In that environment, litigation is unlikely. There is also no recorded challenge to the corporate multiplier of five. A company receiving a $1,250 fine might have standing to argue that the multiplier is ultra vires the parent Act if the parent Act does not authorise a differential penalty for corporations. But the source does not show that any such argument was made. The regulation has been in force for over a decade with only technical amendments, which suggests it has not been a source of controversy. Nonetheless, the absence of reported litigation does not mean no individual has ever contested a notice; it may mean such contests were resolved informally or not reported. For any researcher or lawyer, the key point is that the regulation itself has not been judicially interpreted, so its provisions are untested. That creates some uncertainty: for example, whether a notice that omits the authorised person’s unique number is void or merely voidable. Without case law, parties rely on the plain text, which is silent on consequences. The regulation also does not specify a limitation period for serving a notice. The Magistrates Court Act would govern that, but it is not incorporated here. Overall, the litigation history is essentially blank, which is itself a fact worth noting.

Several features of this regulation can trap unwary recipients or officials. First, the corporate multiplier: a corporation pays five times the individual penalty. The regulation does not define corporation, but s 9(2) defines company for ACN purposes; corporation presumably includes any body corporate. A sole trader who incorporates will face the higher penalty even if the business is identical to an unincorporated sole trader. This creates an incentive to remain unincorporated, which is a distortion of business structure choices. Second, the flat penalty structure: the infringement penalty bears no rational relationship to the maximum court penalty. For instance, item 9 (s 65(2) of the Fisheries Act) has a maximum of 50 penalty units but an infringement penalty of only $100. That is 1.3% of the maximum. Meanwhile, item 1 (s 37(1)) has the same maximum of 50 penalty units but a $250 penalty (3.3%). There is no explanation for this disparity. A recipient could argue that the penalty is arbitrary, but the regulation does not provide a mechanism to challenge the amount. Third, the ACN requirement: if a conservation officer serves a notice on a corporation without including the ACN, the notice may be invalid. But the corporation cannot simply ignore it; they would need to seek clarification. The regulation does not say what the corporation should do. Fourth, the identification requirement: ss 10 and 11 require identification by full name or surname and initials, or a unique number. A notice that uses only a first name and a surname (but no initials) might comply, but a notice that uses a nickname or badge number without the unique number system might not. The administering authority must issue unique numbers, but if it has not done so, every notice could be defective. Fifth, the reminder notice cost: $34 is added to the penalty if a reminder notice is served. That cost is not subject to the multiplier, so a corporation pays the same $34. The regulation does not specify when a reminder notice can be served; the Magistrates Court Act likely allows it after the initial notice period expires. Sixth, the schedule’s scope: only one regulation offence is listed (under the Fisheries Regulation 2001, s 5(2)). That means many other fisheries regulation offences cannot be dealt with by infringement notice. An officer who issues a notice for an unlisted offence would be acting without authority. Seventh, the absence of a defence of honest mistake: the infringement notice system does not allow for an oral explanation; the recipient must choose to pay or go to court. An honest but mistaken fisher who would normally receive a warning may still receive a notice. The regulation does not give the officer discretion to issue a warning instead. Eighth, the effect of payment: paying the notice is deemed a conviction. That can have collateral consequences, such as a criminal record for a relatively minor offence that might otherwise have led to a dismissal. For a professional fisher, a conviction could affect licence eligibility under the Fisheries Act. Ninth, no provision for withdrawal: the regulation does not say whether the administering authority can withdraw a notice after it is served. The Magistrates Court Act may allow it, but this regulation adds no clarity. **Tenth, the penalty amounts are not indexed: at 2015 values, $100 was about 0.67 penalty units. Over time, inflation erodes the real penalty, reducing deterrence.

Compliance with this regulation takes two different forms: compliance by the recipient of an infringement notice, and compliance by the issuing authority. For a person who receives an infringement notice (individual or corporation), the first step is to verify that the notice contains all required information: the offence must be listed in schedule 1, the penalty must match the column 4 amount (or five times for a corporation), and the notice must identify the conservation officer in accordance with s 10. If the notice is defective, the recipient may have grounds to challenge its validity, but the regulation does not specify how. The safest course is to seek legal advice before ignoring a defective notice. If the notice appears valid, the recipient must decide within the time period (usually 28 days from service) whether to pay or to elect to have the matter dealt with by a court. Paying closes the matter but results in a deemed conviction. Not paying and not electing may lead to a reminder notice (adding $34) and eventually prosecution. A corporation should ensure that the notice includes its ACN; if it does not, the corporation can argue the notice is invalid but should still respond to avoid default. For a conservation officer issuing a notice, compliance requires: confirming that the alleged offence is listed in schedule 1; using the correct penalty from column 4 (or multiplying by five for a corporation); including the company’s ACN if the recipient is a company (s 9); and identifying themselves by full name, surname and initials, or unique number (s 10). If a reminder notice is later served, the same identification requirements apply (s 11). The officer should also be aware that only conservation officers (as defined by the Nature Conservation Act 2014) may serve notices; no other category of person is authorised (s 12). The officer should maintain a record of their unique number if one has been issued. The administering authority (conservator of flora and fauna) is responsible for issuing unique numbers and ensuring officers know them. For a company, compliance with the underlying fisheries law is the primary obligation, but if a notice is received, the company must have its ACN available and should ensure that any officer dealing with the matter can verify the notice’s content. The company should also be aware that paying a notice results in a conviction, which may need to be disclosed in applications for licences or permits under the Fisheries Act. For legal advisers, compliance means checking the notice against the regulation’s requirements, advising the client on the cost benefit of paying versus contesting, and considering whether any human rights arguments (e.g., right to a fair hearing) could be raised if the client wishes to contest. For the administering authority, compliance includes maintaining a system of unique numbers, updating schedule 1 when fisheries offences change, and training conservation officers on the content requirements. The authority should also monitor whether the penalties are still appropriate in dollar terms and propose amendments if inflation erodes their value. The regulation does not impose a duty to review the schedule periodically, but practical compliance with the system’s purpose would benefit from such reviews. A non compliance scenario: if a conservation officer issues a notice for an offence not in schedule 1, the notice is invalid and the recipient cannot be compelled to pay. Similarly, if a notice omits the required identification, the authority may find it difficult to enforce the penalty in court. Therefore, strict adherence to the regulation’s formalities is essential for the enforcement pathway to work.