Magistrates Court (Heritage Infringement Notices) Regulation 2020

Infringement notice offence. This term, defined in the Magistrates Court Act 1930 dictionary and adopted here, means an offence for which an infringement notice may be served. The regulation specifies which Heritage Act offences qualify - only section 74(3) and section 75(3). No other Heritage Act offence can be dealt with by infringement notice under this regulation.

Infringement notice penalty. This is the fixed monetary amount that a person must pay to discharge liability for the offence without a court hearing. For an individual it is the amount in column 4 of schedule 1, which is $1,000 for each of the two offences. For a corporation it is five times that amount, so $5,000. This is significantly lower than the maximum court penalty. The Heritage Act sets a maximum penalty of 100 penalty units for each of the two offences. At the republication date, one penalty unit for an individual is $160 (Legislation Act 2001, section 133), making the maximum court fine $16,000. The infringement penalty is therefore a discount of about 94 per cent, creating a strong incentive to pay rather than contest.

Administering authority. The director-general for the Heritage Act is the administering authority. This person or office is responsible for issuing unique identification numbers to authorised persons for use on notices, and generally overseeing the infringement notice process.

Authorised person. The term is defined by reference to the Heritage Act 2004 dictionary. The regulation does not reproduce that definition, but it would include inspectors, authorised officers, or others appointed under that Act. Only an authorised person may serve an infringement notice or reminder notice under section 12.

Reminder notice. A second notice served if the first infringement notice is not paid or disputed within the period set by the Magistrates Court Act. The regulation fixes the cost of serving a reminder notice at $34, which is added to the penalty amount.

Penalty units. Although not defined in the regulation, the concept appears in schedule 1, column 3, where the offence penalty is expressed as 100 penalty units. The infringement penalty is a dollar amount, not a multiple of penalty units. The dollar amount remains fixed until amended by regulation, whereas the penalty unit value changes periodically under the Legislation Act. This means the infringement penalty does not automatically escalate with inflation, unlike the court penalty.

The regulation directly affects any person who is alleged to have committed an offence under subsection 74(3) or subsection 75(3) of the Heritage Act 2004. Because the regulation does not reproduce those subsections, one must look to the Heritage Act to identify the prohibited conduct. Affected individuals include property owners, lessees, occupiers, developers, contractors, and possibly heritage consultants or volunteers who interfere with a heritage place or object. Corporations are affected more heavily because they must pay five times the individual infringement penalty.

The regulation affects the administering authority (the director-general for the Heritage Act). That office must manage the identification numbers for authorised persons, receive payments, issue reminder notices, and handle any enforcement action if penalties go unpaid. It also affects authorised persons appointed under the Heritage Act, who gain the power to serve infringement notices and reminder notices. Those officers must comply with the content requirements in sections 9, 10, and 11; failure to do so may render a notice invalid.

Indirectly, the regulation affects the ACT Magistrates Court and the criminal justice system. By providing a low-cost alternative to prosecution, it reduces the number of Heritage Act matters that proceed to a hearing. This frees court resources but also reduces judicial oversight of enforcement decisions. The regulation affects legal practitioners who advise clients on heritage compliance, because the availability of an infringement notice changes the risk calculus for minor breaches. It also affects insurers, financiers, and other stakeholders with an interest in heritage-listed properties, because an infringement notice can be issued quickly without prior warning.

Most importantly, the regulation affects the incentive structure of heritage enforcement. A $1,000 penalty for an individual is low enough that a rational actor might treat it as a cost of doing business, especially if the benefit of non-compliance is higher. The regulation’s drafters intended it as an alternative to prosecution, but the consequence may be that serious heritage breaches are sometimes dealt with by a trivial fine.

Duty to include identifying information on notices. Sections 9 and 11 require that an infringement notice and a reminder notice served by an authorised person identify that person by full name, or surname and initials, or by a unique number given by the administering authority. This duty enables the recipient to know who issued the notice and to verify that the person is authorised. If the notice omits this information, it may be invalid and unenforceable.

Duty to include ACN for companies. Section 10 requires that when an infringement notice is served on a company (defined as a company registered under the Corporations Act), the notice must include the company’s Australian Company Number (ACN). This is additional to the requirements under section 121(1)(c) of the Magistrates Court Act. The duty ensures the notice clearly identifies the corporate entity and avoids confusion with similar names. Failure to include the ACN could be a defence to non-payment.

Right to decline payment and elect court hearing. The infringement notice scheme under Part 3.8 of the Magistrates Court Act gives a recipient the right to refuse to pay and have the matter dealt with by a court. The regulation does not alter that right. A person who believes they did not commit the offence, or who disputes the amount, can simply not pay within the prescribed period, and the matter will proceed to prosecution. That right is the essential safeguard of the scheme.

Right to a reminder notice. If the initial infringement notice is not paid or disputed, the administering authority must serve a reminder notice before any enforcement action begins. The regulation sets the cost of that service at $34. The reminder notice gives the recipient a second chance to pay or contest.

Duty to pay the correct amount. The recipient must pay the amount specified in the notice, which for an individual is the column 4 amount ($1,000) and for a corporation is five times that amount ($5,000). If the incorrect amount appears on the notice, the recipient may have grounds to challenge it.

No duty to explain the offence. Unlike a summons or charge, an infringement notice does not require a full statement of the elements of the offence. It must contain the information specified in the Magistrates Court Act (such as the provision alleged, the date and place, and the amount payable) and the additional regulation requirements, but it does not need to provide evidence or a narrative. This reduces the recipient’s ability to assess the strength of the case before deciding whether to pay.

The infringement penalty for an individual for an offence against section 74(3) or 75(3) of the Heritage Act is $1,000, as set in schedule 1, column 4. The penalty payable by a corporation is five times that amount, namely $5,000 (section 8(2)). The cost of serving a reminder notice is $34 (section 8(3)). These amounts are not indexed to the penalty unit value, so they remain at the same dollar figure unless the regulation is amended.

By comparison, the maximum court penalty for each of the two offences is 100 penalty units. At the republication date, that is $16,000 for an individual and $81,000 for a corporation (because the legislation Act sets a higher penalty unit value for corporations: $810 per unit). The infringement penalty therefore represents a substantial discount: 94 per cent for an individual and 94 per cent for a corporation. This is the intended benefit: the infringement notice is meant to encourage quick payment and avoid court time.

Enforcement of unpaid infringement notices follows the Magistrates Court Act Part 3.8. If the penalty is not paid and the recipient does not elect to go to court, the unpaid amount can be registered as a fine and enforced by the sheriff, including through garnishee orders, property seizure, or suspension of driver licences in some circumstances. The regulation itself does not create any additional enforcement powers.

The $34 reminder notice fee is relatively modest, but it is an extra cost that the recipient incurs if they do not respond to the first notice. There is no provision in the regulation for withdrawal or variation of an infringement notice. Any such power must come from the parent Act. If an authorised person issues a notice in error, the recipient may have to go through the court process to have it set aside.

The penalty structure creates a strong incentive to pay rather than defend, even if the recipient believes they are not liable. That is the trade-off inherent in any infringement notice scheme. For a corporation, $5,000 may be a small amount relative to the cost of legal representation, so the notice may effectively impose a tax on non-compliance without any adjudication of fault.

The regulation is made under the Magistrates Court Act 1930, specifically under the regulation-making power that supports Part 3.8 (infringement notices). Part 3.8 of that Act provides the overarching framework: it defines the effect of paying a notice, the period for payment, the consequences of non-payment, and the ability of a recipient to elect to have the matter heard in court. The regulation does not repeat those provisions; it simply designates the Heritage Act offences to which the framework applies. A person reading the regulation must also consult the Magistrates Court Act for procedural rules.

The Heritage Act 2004 is the substantive parent law that creates the two offences. The regulation does not amend or repeal any provision of the Heritage Act; it leaves the maximum penalties unchanged. The infringement notice regime is an alternative, not a replacement. Prosecution for the same conduct remains possible if a notice is not served or if the recipient elects court action. The regulation also borrows the Heritage Act’s definition of “authorised person”, meaning that only those with authority under that Act may issue notices. This preserves the chain of accountability within the heritage enforcement system.

The Legislation Act 2001 governs the interpretation of subordinate laws, the value of penalty units, and the effect of notes and dictionaries. The note in section 4 of the regulation confirms that notes are explanatory only and not part of the regulation. The dictionary at the end of the regulation signposts definitions from other Acts, including the Magistrates Court Act and the Heritage Act. The Legislation Act also provides that terms used in the regulation have the same meaning as in the Magistrates Court Act unless otherwise indicated.

Where a company is served with a notice, section 10 requires the inclusion of its ACN, which is a concept drawn from the Corporations Act. That provision connects the infringement notice scheme with corporate identification law. If a company does not have an ACN (for example, an unincorporated association), the notice requirements may be ambiguous; the regulation defines “company” narrowly to mean a company registered under the Corporations Act.

The regulation does not interact with any Commonwealth laws, except indirectly through the Corporations Act reference. It does not create a power to search premises, seize property, or compel information. Those powers must be found in the Heritage Act itself.

The Magistrates Court (Heritage Infringement Notices) Regulation 2020 has not been amended. It was notified on the ACT legislation register on 20 February 2020, sections 1 and 2 commenced on that date, and the remainder commenced on 21 February 2020. The republication endnote confirms that the regulation is “Regulation not amended”. There is no amendment history table in the source because no amending laws have been made. The regulation remains in its original form.

This means the infringement penalties of $1,000 (individual) and $5,000 (corporation) have not been updated since commencement. Given that the penalty unit value for individuals has previously changed (it was $150 before 1 July 2020 and increased to $160), and may change again, the fixed dollar amounts in the regulation do not track inflation. Over time, the real value of the infringement penalty will decrease unless the regulation is amended. That is a potential issue for deterrence: a fine that erodes in value may become less effective. The regulation’s failure to index the infringement penalty to penalty units is a deliberate choice, but one that imposes ongoing costs on the administering authority to monitor and amend.

The source provides no reported cases, judicial decisions, or tribunal rulings that interpret or apply this regulation. It is a recent and narrow instrument, and it has not been the subject of litigation in the ACT courts, at least as at the republication date of 21 February 2020. Any litigation that occurred after that date is not captured in the source. Because the regulation is procedural rather than substantive, challenges would likely focus on the validity of a particular infringement notice rather than the regulation itself.

Potential grounds for challenge might include: failure to identify the authorised person as required by section 9 or 11; failure to include a company’s ACN under section 10; service of a notice for an offence not listed in schedule 1; or a dispute about whether the person served was the correct entity. The absence of litigation history may reflect that the infringement amounts are small enough that recipients choose to pay rather than incur legal costs.

Corporate multiplier is five times, not the standard corporate penalty unit multiplier. Under the Legislation Act, the penalty unit value for a corporation is $810, which is 5.0625 times the individual value of $160. But the regulation uses a flat multiplier of five on the column 4 amount. For a 100 penalty unit offence, the maximum court fine for a corporation is $81,000, whereas the infringement penalty is $5,000. That is a 94 per cent discount, but the ratio of corporate to individual infringement penalty is exactly 5:1 ($5,000 vs $1,000). This is slightly less than the legislative ratio of 5.0625:1.

Only two offences are covered. Many other Heritage Act offences carry significant penalties. If an authorised officer suspects a breach that does not fall under section 74(3) or 75(3), they cannot issue an infringement notice. That might lead to a situation where a relatively minor breach of a different provision must go through full prosecution, while a breach of the two listed provisions can be dealt with by a fixed fine. This could create an odd incentive for enforcement officers to “fit” behaviour into the infringement notice offences even when a different charge would be more appropriate.

No automatic indexation. The penalty amounts in column 4 are fixed dollar figures. If the penalty unit value increases (as it has done historically), the infringement notice penalty does not rise. A person who receives a notice today pays the same nominal amount as in 2020. Over time, the real deterrent effect weakens. The administering authority would need to make a new regulation to increase the amounts, which requires a legislative process.

The infringement notice must include the authorised person’s identification. If the notice omits this detail, the recipient might have a complete defence if the matter goes to court. But the regulation does not specify the consequence of non-compliance. The recipient would need to argue that the notice is invalid under the parent Act, and that failure to pay cannot lead to enforcement. Similarly, if a company is served with a notice that lacks its ACN, the notice may be unenforceable. This is a technical gotcha that a careful recipient can exploit.

The $34 reminder notice fee. This is a small amount, but it is added to the penalty if the recipient ignores the first notice. There is no option to pay only the original penalty after the reminder notice period expires; the fee is automatically added. Recipients who lose or misplace the first notice may find themselves paying extra.

No power to vary or withdraw. The regulation does not give the authorised person or administering authority any explicit power to amend or withdraw an infringement notice after service. If a notice contains an error, the recipient may have no practical remedy other than to let the matter go to court and argue invalidity. The parent Act may provide a power of withdrawal, but it is not mentioned in this regulation. This creates uncertainty for both sides.

If you receive an infringement notice for a Heritage Act offence, first check that it relates to one of the two listed provisions: subsection 74(3) or 75(3) of the Heritage Act. The notice should state the provision. If it refers to a different provision, the notice may be unauthorised and you should seek legal advice before paying.

Verify that the notice contains the required identification of the authorised person: either the full name, surname and initials, or a unique number. If it does not, the notice may be invalid. Also, if you are a company, confirm that the notice includes your ACN. If it is missing, document this and consider disputing the notice.

Decide whether to pay or contest. Paying within the prescribed period (set by the Magistrates Court Act) discharges liability and avoids any further action. If you believe you have a defence, or if you dispute the facts, do not pay. Instead, do nothing within the payment period, and the matter will proceed to court. Alternatively, you may be able to elect a court hearing by written notice to the administering authority. The regulation does not specify which option applies; you should refer to the parent Act.

If you receive a reminder notice, the penalty amount may increase by $34. You still have the option to pay or contest. Do not ignore reminder notices; if the amount goes unpaid and you do not elect court, it can be registered as a fine and enforced by the sheriff.

For authorised persons and the administering authority, the compliance obligation is to ensure that every notice meets the content requirements of sections 9, 10, and 11. Keep a register of unique identification numbers assigned to each authorised person. Train officers on the requirement to include the company ACN. For corporate notices, check the ACN against the ASIC register before serving. If the notice is served on an unincorporated body, clarify that it is not a company under the Corporations Act and the ACN requirement does not apply, but be aware of potential ambiguity.

For the administering authority, maintain records of all notices served, payments received, and reminder notices sent. Monitor the timeframes under the Magistrates Court Act. Because the regulation has no automatic indexation, consider whether to propose amendments to increase the penalty amounts if inflation erodes their value over time. Also consider whether the current two offences adequately cover the most common heritage breaches or whether additional offences should be added to the schedule.