Magistrates Court (Health Infringement Notices) Regulation 2016

This regulation mechanically puts two offences under the Health Act 1993 (the Act) into the infringement notice system set out in Part 3.8 of the Magistrates Court Act 1930. Instead of a prosecution requiring a charge, hearing and judicial determination, a police officer can issue an on-the-spot infringement notice for the specified offences. The recipient can pay the prescribed penalty and avoid a criminal conviction, or elect to have the matter heard by a court. The regulation does not create new offences; it merely adds existing offences to an existing administrative enforcement pathway.

The two offences are both under section 87 of the Health Act. Schedule 1 lists item 1: section 87(1) with an offence penalty of 25 penalty units (meaning a maximum court fine of $3,750 for an individual) and an infringement penalty of $750. Item 2: section 87(2) with 50 penalty units (maximum $7,500 for an individual) and an infringement penalty of $1,500. For corporations, the infringement penalty is five times the individual amount: $3,750 for section 87(1) and $7,500 for section 87(2). These corporate penalties are significantly lower than the maximum court fine a corporation could face (25 penalty units at $750 per unit would be $18,750, so the infringement notice offers a discount of roughly 80 per cent). The regulation also sets a $34 cost for serving a reminder notice.

The administering authority for these infringement notice offences is the chief police officer (section 6), and only a police officer may serve an infringement notice or a reminder notice (section 12). The officer must be identified by their police service number on the notice and on any reminder notice (sections 9 and 11). For a company, the notice must include the company’s ACN (section 10). This is in addition to the content requirements already imposed by the Magistrates Court Act.

The stated purpose from the note to section 5 is that the infringement notice system “is intended to provide an alternative to prosecution.” That is the official rationale: to divert minor health offences from the court system to a more streamlined process. The trade-offs are significant. The person receiving the notice loses the procedural protections of a criminal trial unless they elect to contest the matter. The threat of a conviction if they do not pay may create pressure to pay even if the recipient disputes the facts. The discount from the maximum court penalty incentivises early payment, which reduces the incentive to challenge a potentially incorrect notice. For a person of modest means, $750 or $1,500 is not trivial, and the decision to pay or contest involves weighing time, legal costs and risk of a higher penalty if unsuccessful. For corporations, the five-times multiplier still produces a discount from the statutory maximum, but the absolute amounts are substantial enough to create a strong incentive to pay rather than litigate. The $34 reminder notice fee adds a further cost for non-payment.

The regulation does not change the underlying elements of the Health Act offences. It does not provide any new defences, rights of review or internal merits review. It merely enables a faster, cheaper enforcement mechanism for the administering authority and generates state revenue from fines without the expense of a prosecution. The compliance cost for the recipient is the time and money to pay or the cost of legal advice to decide whether to contest. The regulation expands the discretion of police officers to issue fines without independent oversight, because a notice can be issued on the officer’s assessment of the facts and there is no requirement to obtain prior approval from a prosecutor or magistrate.

The key concept is the “infringement notice offence”, which is defined by cross-reference to the Magistrates Court Act dictionary. Under that Act, an infringement notice offence is an offence for which an infringement notice may be served. The regulation lists which Health Act offences are infringement notice offences. The infringement notice is a document that must contain certain information, including the offence details, the penalty, and the authorised person’s police service number. A “reminder notice” is a follow-up notice served if the initial infringement notice is not paid, and it also must identify the police officer by service number.

The “administering authority” is defined in the Magistrates Court Act dictionary and for this regulation is the chief police officer. That authority is responsible for the overall operation of the infringement notice system for these offences. However, the regulation delegates the power to serve notices to any police officer, not just the chief police officer or a delegate. This means that any uniformed or authorised police officer in the ACT can issue a health infringement notice. The officer does not need to be an inspector under the Health Act; they are acting under the Magistrates Court Act framework.

The “penalty payable” under an infringement notice is different from the maximum court penalty for the offence. The regulation sets the specific dollar amounts in schedule 1. For an individual, the infringement penalty is $750 for section 87(1) and $1,500 for section 87(2). For a corporation, the penalty is five times that amount: $3,750 and $7,500 respectively. This ratio of five times for corporations mirrors the standard penalty unit ratio in the Legislation Act 2001 (section 133), where a penalty unit is $150 for an individual and $750 for a corporation. So the corporate infringement penalty is aligned with the corporate penalty unit value: 20 penalty units for a corporation would be $15,000. Here, the infringement penalties for corporations are 25 penalty units equivalent ($3,750) and 50 penalty units equivalent ($7,500). That means the infringement notice penalty for a corporation is exactly the same number of penalty units as the offence penalty for an individual. But the individual infringement penalty is substantially lower than the maximum court penalty.

The “reminder notice cost” of $34 is a separate fee added to the amount owing if the person does not pay the infringement notice within the required period (usually 28 days under the Magistrates Court Act). This fee is intended to cover the administrative cost of issuing the reminder and is a flat amount regardless of the offence. It is not indexed to CPI in this regulation; it is fixed at $34.

The regulation directly affects two groups: persons who allegedly commit either of the two Health Act offences specified in schedule 1, and police officers who may issue infringement notices for those offences. Indirectly, it affects the ACT court system, the administering authority (chief police officer), and any third party that may be required to pay on behalf of a corporation (e.g. a director, company secretary or authorised representative).

For individuals, the regulation creates a discrete set of consequences. If a police officer believes on reasonable grounds that an individual has committed a Health Act offence under section 87(1) or (2), the officer can issue an infringement notice on the spot or later by post. The individual then has a choice: pay the $750 or $1,500 penalty within the period specified in the notice (usually 28 days), or elect to have the matter dealt with by a court. If the individual pays, there is no criminal conviction recorded. If the individual fails to pay and does not elect to go to court, a reminder notice will be issued with the additional $34 cost. Eventually, the matter may be referred to the Magistrates Court for enforcement as a fine, and additional enforcement costs may apply. The individual does not get a trial unless they actively elect to contest. This is a significant procedural difference from a prosecution where the state must prove the case beyond reasonable doubt and the accused has a right to legal representation, to silence, and to cross-examine witnesses. The infringement notice system shifts the burden onto the recipient to take action if they wish to dispute.

For corporations, the stakes are higher. The infringement penalties are $3,750 and $7,500. A corporation that receives a notice must decide whether to pay that sum or contest. If it pays, there is no conviction. If it does not pay, a reminder notice will be issued with a $34 cost, and eventually enforcement action. For a small business, $7,500 may be a significant financial hit. The corporation must ensure that its contact details are correct so that it receives the notice; if the notice is sent to an incorrect address, the corporation may not be aware of it and may be subject to default enforcement. The regulation also requires that the notice include the company’s ACN. That is a small administrative detail that should not be burdensome, but if the police officer omits the ACN, the notice may be invalid. That is a potential defence.

Police officers are directly affected because they are the only people authorised to serve these notices. They must comply with the content requirements, including identifying themselves by service number. They must also issue reminder notices if the initial notice is not paid and the person has not elected to go to court. This adds to their workload, but is part of their general enforcement role under the Magistrates Court Act.

The regulation does not impose duties directly; it creates a system for enforcing duties that arise under the Health Act. The primary duty is on the person who receives an infringement notice to either pay the penalty or elect to have the matter dealt with by a court within the period stated in the notice (which is governed by the Magistrates Court Act, not this regulation). The regulation specifies the penalty amount but does not alter the underlying obligation to comply with the Health Act.

For the administering authority, the duty is to ensure that the infringement notice system operates correctly. That duty is exercised through police officers. Police officers have a duty to correctly identify themselves by service number and, for companies, to include the ACN. If they fail to do so, the notice may be invalid, and the person served could argue that the notice does not comply with section 9 or 10, thereby preventing any penalty from being enforced. The regulation does not specify the consequences of non-compliance with these technical requirements, but under the general law of infringement notices, a notice that does not comply with the statutory requirements is a nullity and cannot be enforced. That gives the recipient a right to challenge the notice on procedural grounds.

The recipient has the right to contest the offence by electing to have the matter heard in the Magistrates Court. If they do that, the infringement notice is effectively withdrawn and the matter proceeds as a normal prosecution for the offence. The person then has full procedural rights: legal representation, the right to call evidence, to cross-examine the police officer, and to be presumed innocent until proven guilty. The disadvantage is that if found guilty, the court may impose a penalty up to the maximum court penalty (25 or 50 penalty units) plus court costs, which could be higher than the infringement penalty. So the right to contest comes with financial risk.

The recipient also has the right to request information about the notice, such as the details of the alleged offence, but the regulation does not impose an obligation on the police to provide further information beyond what is in the notice. The police service number on the notice allows the recipient to identify the officer, but not necessarily to contact them directly. The recipient may need to contact ACT Policing to obtain the officer’s name or to arrange a meeting.

For a company, the right to contest is the same as for an individual, but the amount at stake is larger. The company may have to consider whether the $3,750 or $7,500 penalty is worth paying to avoid a conviction that could affect its reputation or licence conditions. The company also has the right to have a representative appear on its behalf if it elects to go to court.

The penalties under this regulation are the infringement notice penalties set out in schedule 1. For an individual, the penalty for section 87(1) is $750 and for section 87(2) is $1,500. For a corporation, the penalty is five times those amounts: $3,750 and $7,500 respectively. These are the amounts that must be paid to avoid prosecution. They are not the maximum court penalties for the underlying offences, which are 25 and 50 penalty units respectively. At the time of republication, a penalty unit for an individual is $150, so the maximum court fine for an individual is $3,750 for section 87(1) and $7,500 for section 87(2). The infringement notice discounts are 80 per cent off the maximum ($750 vs $3,750) and 80 per cent off ($1,500 vs $7,500). That is a substantial incentive to pay promptly.

For a corporation, the maximum court fine is 25 or 50 penalty units at $750 per unit = $18,750 or $37,500 respectively. The infringement notice penalties of $3,750 and $7,500 are 80 per cent and 80 per cent discounts off those maxima. So the incentive for corporations is equally strong.

Enforcement of the infringement notice system is not detailed in this regulation. The Magistrates Court Act Part 3.8 contains the general enforcement machinery. Generally, if the recipient does not pay and does not elect to go to court, the administering authority may file an enforcement order with the Magistrates Court, which may then register the penalty as a fine. Additional enforcement costs may be added, such as the $34 reminder notice cost and possibly court costs. The regulation does not state the period for payment; that is in the Magistrates Court Act (likely 28 days). If the recipient elects to go to court, the infringement notice is replaced by a charge, and the court proceeds to hear the matter. If the person is convicted, the court may impose a penalty up to the maximum, plus costs.

The chief police officer is the administering authority. That means the overall management of the infringement notice system for these offences falls on the ACT Police. Police officers are the only persons authorised to serve notices. This is narrower than some other infringement notice regimes where other regulatory officers (like environmental health officers) can issue notices. Here, it is exclusively police. That may reflect the nature of the Health Act offences (possibly they are criminal in nature rather than purely regulatory). It also means that the police have discretion whether to issue a notice or to charge the person directly. This discretion is not constrained by the regulation. A police officer could decide to bypass the infringement notice system and lay a charge, which could lead to a higher penalty upon conviction. That creates uncertainty for the recipient: they cannot predict whether they will get a cheaper notice or a full prosecution.

This regulation is made under the Magistrates Court Act 1930. It operates within that Act’s infringement notice framework. The provisions of Part 3.8 of the Magistrates Court Act apply to these offences as if they were any other infringement notice offence. That means the general rules about service, payment, reminders, enforcement, and election for trial all apply. The regulation only adds specific details: the schedule of offences and penalties, the identity of the administering authority (chief police officer), the authorised persons (police officers), the requirement to include the company’s ACN, and the requirement to identify the police officer by service number. Any matter not covered by this regulation (such as the time limit for payment, the effect of payment, the form of the notice, or the process for election) falls back to the Magistrates Court Act.

The regulation also interacts with the Health Act 1993 itself. The Health Act creates the offence provision (section 87). This regulation does not amend or replace that provision; it merely designates it as an infringement notice offence. A person who commits the offence can still be prosecuted directly under the Health Act without an infringement notice being issued. The infringement notice is an alternative, not a replacement. The regulation does not affect the elements of the offence, the defence of honest and reasonable mistake, or any other general criminal defences. Those defences apply whether the matter is dealt with by notice or by court.

The Legislation Act 2001 is relevant in several respects. First, the definition of “penalty unit” and the conversion of penalty units to dollar amounts comes from the Legislation Act. The note at the bottom of each page states that at the republication date, a penalty unit is $150 for an individual and $750 for a corporation. This is fixed by section 133 of the Legislation Act, and any amendment to that section would change the dollar value of the maximum court fine but not the infringement penalty (which is set in Schedule 1 as a fixed dollar amount). So the infringement penalty does not automatically index with inflation, whereas the maximum court fine does. That gap may widen over time. Second, the Legislation Act contains rules about the legal status of notes (section 127) and about definitions (sections 155 and 156). Those rules govern the interpretation of this regulation.

The Corporations Act is relevant only as to the definition of “company” and the requirement to include the ACN. Section 10(2) of this regulation defines “company” as a company registered under the Corporations Act. That would include public and proprietary companies, but not unincorporated associations, partnerships, or trusts. If a corporation is not registered under the Corporations Act (e.g. a foreign company registered under a different law), it may not be a “company” for the purpose of this regulation, and the requirement to include an ACN may not apply. That could be a source of confusion.

This regulation, SL2016-4, was notified on the ACT Legislation Register on 29 February 2016. Sections 1 and 2 commenced on that date. The remainder of the regulation (sections 3 to 12 and the schedule and dictionary) commenced on 22 March 2016, as specified by section 2 and cross-referenced to the Health (Patient Privacy) Amendment Act 2015 (A2015-43) and Commencement Notice CN2016-4. This commencement date was chosen to align with the commencement of the Health (Patient Privacy) Amendment Act 2015, which amended the Health Act. The regulation therefore commenced simultaneously with the substantive Health Act amendments that likely introduced the new offences in section 87 or at least came into force on that date.

The regulation has not been amended since its commencement. The republication status note says “Regulation not amended”. The endnote on amendment history shows that section 2 (the commencement provision) was omitted by operation of the Legislation Act 2001, section 89(4). That is a standard editorial change that occurs once a law is fully commenced: the commencement provision is no longer necessary and is removed. That omission is not a substantive amendment; it is a formal housekeeping measure. All other provisions remain as originally enacted.

The regulation has only one republication (Republication No 1) effective 22 March 2016. No subsequent amendments have been made. That means the penalty amounts set in 2016 ($750, $1,500, $3,750, $7,500) have not been updated for inflation or changed penalty unit values. Over time, the real value of these infringement penalties will decline relative to the maximum court penalty, which is pegged to the penalty unit that increases with CPI (though the penalty unit itself has not changed often; it has been $150/$750 for many years). The $34 reminder notice cost is also fixed and may not reflect actual administrative costs.

The regulation has not been repealed or replaced. It remains in force as a standalone instrument under the Magistrates Court Act. Future amendments could add new Health Act offences to Schedule 1, adjust penalty amounts, or change the administering authority or authorised persons. The absence of amendments may indicate that the regime is working as intended and has not needed adjustment, or that it is used infrequently and no one has sought to change it.

The source text contains no reference to any litigation involving this regulation. There is no case law noted, no citation of court decisions, and no mention of any challenge to the validity of the regulation or its application. The regulation is subsidiary legislation, and challenges would typically be brought in the ACT Supreme Court on grounds such as ultra vires or procedural unreasonableness, but none is recorded in the source.

Given that the regulation has been in force since March 2016 and has not been amended, it is plausible that the number of infringement notices issued under it is low or that recipients have paid without contesting. The infringement penalties are not trivial, but they are small compared to the cost and risk of litigation. Many recipients may simply pay to avoid the hassle. As a result, there may be no reported decisions.

Practitioners should be aware that the absence of litigation does not mean the regulation is immune from challenge. Potential grounds for challenge might include:

• That the regulation expands the infringement notice system beyond what is allowed under the Magistrates Court Act (e.g., if the Health Act offences are not appropriate for an infringement notice regime because they involve serious health risks).
• That the content requirements (sections 9, 10, 11) have not been complied with, making the notice invalid.
• That the penalty set out in Schedule 1 is disproportionate to the gravity of the offence, though this would be a weak argument given the high court maximum.

No cases are cited in the source, and the deep dive must not invent any. The analyst should note that research of the ACT courts database would be required to confirm whether any unreported decisions exist, but the instruction from the user is to ground every claim in the source. The source is silent on litigation, so the claim is simply that no litigation history is recorded.

The regulation is straightforward and has been stable. If there were a constitutional challenge (e.g., to the validity of the infringement notice system itself), it would have been brought in the ACT courts or the High Court. Even the note to section 5 describes the system as “an alternative to prosecution”, but that description does not give any individual rights. It is a statement of intention only.

The most likely trap is the assumption that the infringement notice penalty is a substitute for the court penalty in all circumstances. It is not. If a person receives a notice but does not pay and does not elect to go to court, the penalty becomes a fine enforceable by the state. That fine is the infringement penalty, not the maximum court penalty. However, if the person elects to go to court and is found guilty, the court may impose a penalty up to the maximum. That is correct. But many people may not understand that paying the infringement notice avoids a conviction, but that the payment is an admission of liability in the sense that the person cannot later claim they did not commit the offence. The regulation does not state that payment is an admission, but under the Magistrates Court Act, paying the infringement notice has the effect of discharging liability and no conviction is recorded. That does not equal an admission, but it effectively prevents the person from contesting the facts later.

Another gotcha is the five-times multiplier for corporations. A corporation that is not a company registered under the Corporations Act may not be subject to the five-times penalty. The regulation uses the definition of “company” only for the ACN requirement. The penalty provision in section 8(2) says “a corporation”. The dictionary for the regulation defines “corporation” by reference to the Legislation Act dictionary, which includes any body corporate. So an unincorporated association is not a corporation, but a statutory corporation (like a government agency) might be. The penalty for a corporation is five times the individual amount, regardless of whether it is a company. But the ACN requirement in section 10 applies only to a company. So a non-company corporation (e.g., a cooperative or a foreign company not registered) does not need to have its ACN on the notice, but still faces the higher penalty. This could lead to confusion where a police officer tries to include an ACN for a corporation that does not have one, potentially invalidating the notice if the officer does it anyway under the mistaken belief it is required.

The $34 reminder notice fee is a separate charge that is added to the penalty if the person does not pay within the initial period. That fee can be avoided by paying on time. But if a person pays after receiving the reminder notice, they must pay the original penalty plus $34. The regulation does not allow a discount for early payment; the penalty is fixed. So there is no incentive to pay before the reminder is issued, except to avoid the extra $34.

The regulation does not require that the infringement notice be served immediately. A police officer may serve the notice later, even weeks after the alleged offence. The Magistrates Court Act imposes a time limit (commonly 12 months), but the regulation does not set a shorter period. So a person could be surprised by a notice arriving long after the event, making it harder to remember or gather evidence.

For an individual or corporation that receives a health infringement notice under this regulation, compliance means either paying the fixed penalty within the period stated on the notice (which will be the period set under the Magistrates Court Act, usually 28 days), or actively electing to have the matter heard by a court. Payment can be made by the methods specified on the notice; the regulation does not specify those methods, but standard police infringement notice schemes allow payment by cheque, money order, credit card, or online portal. The recipient should keep a receipt or proof of payment.

If the recipient wishes to contest the alleged offence, they must complete the election section on the notice and return it to the administering authority (the chief police officer) within the time limit. That election must be in writing and signed. Once the election is made, the infringement notice is withdrawn and the matter proceeds as a normal court prosecution. The recipient will then need to appear in the Magistrates Court, either in person or by a legal representative. They should obtain legal advice beforehand, especially for a corporate recipient facing a potential $7,500 fine if convicted.

If the recipient does nothing and does not pay, a reminder notice will be served, adding a $34 cost. If still no payment or election, the matter will be referred to the Magistrates Court for enforcement as a fine. At that stage, the person loses the chance to contest liability; the fine is automatically registered and can be enforced by garnishment of wages, seizure of property, or other means. The person can apply to the court to set aside the enforcement order, but they must show that the notice was not received or that they have a defence. That is a more difficult path.

For corporations, the recipient must ensure that the notice includes the company’s ACN. If it does not, the notice may be invalid. The company could write to the administering authority pointing out the error and requesting cancellation. However, there is no guarantee that the authority will agree; the company may need to elect to go to court and raise the validity issue as a preliminary point. The safest course for a corporation that believes the notice is invalid is to still pay or elect within the time limit to avoid default enforcement, then separately seek a refund if the notice is later found invalid. That involves additional cost.

The recipient should also check the identity of the authorised person. The notice must show a police officer service number. If the number is absent or obviously incorrect (e.g., “1234” when service numbers are longer), that is another possible invalidity.