Magistrates Court (Long Service Leave Portable Schemes Infringement Notices) Regulation 2020

Infringement notice. Defined in the Magistrates Court Act 1930, dictionary (as cross-referenced in the Regulation’s dictionary note). An infringement notice is a notice served on a person alleging an offence and offering the option to pay a fixed penalty to avoid prosecution. It is an administrative enforcement tool, not a court order. Paying the penalty does not constitute an admission of guilt under the general Magistrates Court Act framework, but it does resolve the matter finally. The Regulation applies this concept to the 16 listed LSL Act offences.

Infringement notice offence. Section 7 provides: “The Magistrates Court Act 1930, part 3.8 applies to an offence against a provision of the Long Service Leave (Portable Schemes) Act 2009 mentioned in schedule 1, column 2.” This means those offences become eligible for the infringement notice process. Not every LSL Act offence is included; only the 16 specified are covered. The omitted LSL Act offences (such as potentially more serious or criminal standard offences) must still be dealt with by prosecution in court.

Infringement notice penalty. The fixed dollar amount set out in schedule 1, column 4, for individuals. For corporations, section 8(2) multiplies that amount by five. This is the amount that must be paid to avoid prosecution. It is separate from the maximum court penalty for the offence (column 3, expressed in penalty units). The court penalty is substantially higher; for example, the section 31 offence has a maximum of 50 penalty units ($8,000 for an individual at the current penalty unit value of $160) but the infringement penalty is only $1,600. This differential creates a strong incentive to pay the notice, but also means that a person who believes they have a defence might still pay for cost-benefit reasons rather than contest the allegation.

Administering authority. Section 6 designates “the registrar of the Long Service Leave Authority” as the administering authority. The Long Service Leave Authority is established under section 79A of the LSL Act. The authority’s functions include managing the portable long service leave schemes. Making its registrar the administering authority for infringement notices centralises enforcement within the same agency that handles contributions and entitlements, potentially creating an efficient single point of contact but also raising the risk of enforcement bias (the authority has a vested interest in maximising contributions).

Authorised person. Defined in the Magistrates Court Act dictionary, and for this Regulation limited by section 12 to inspectors appointed under section 71 of the LSL Act. Those inspectors are typically employed by the Long Service Leave Authority. Their powers include entry, inspection, and requiring documents. The infringement notice power is an additional enforcement tool. The notice must identify the authorised person either by full name (or surname and initials) or by a unique number issued by the administering authority (sections 9 and 11). This identification requirement is intended to ensure that the recipient knows who served the notice and can verify their authority, but the Regulation does not require the authorised person to produce their appointment instrument at the time of service.

Reminder notice. A notice sent after an infringement notice has not been paid within the required period (typically 28 days under the Magistrates Court Act). Section 8(3) sets the cost of serving a reminder notice at $34. This cost is added to the penalty amount if the reminder notice is served. The reminder notice must also identify the authorised person in the same manner as the original notice (section 11).

Offence penalty (penalty units). Column 3 of schedule 1 lists the maximum penalty (in penalty units) that a court could impose for each offence if the matter proceeds to prosecution. For example, section 31 carries 50 penalty units, while section 36 carries only 5 penalty units. These penalty unit amounts are relevant because they reflect the seriousness of the offence as determined by the Legislative Assembly. The infringement penalties in column 4 are uniformly lower than the maximum court penalty, but the ratio varies. For section 36 (5 penalty units, maximum $800), the infringement penalty of $160 is exactly 20% of the maximum. For section 31 (50 penalty units, maximum $8,000), the infringement penalty of $1,600 is also 20% of the maximum. This consistent ratio suggests a policy choice to set infringement penalties at one-fifth of the maximum court penalty, but that ratio is not stated and may not apply to all offences (the schedule shows identical infringement penalties for offences with different maximums).

Employers in covered industries. The LSL Act establishes portable long service leave schemes for designated industries: building and construction, contract cleaning, community sector, and security. Employers in those industries are the primary targets of the offences listed in schedule 1. For example, section 31 of the LSL Act (offence of failing to pay long service leave contributions to the relevant scheme) carries an infringement penalty of $1,600 for individuals, $8,000 for corporations. An employer who miscalculates or fails to remit contributions on time may receive an infringement notice. The Regulation does not create any exculpatory provisions or grace periods; the strict liability nature of many LSL Act offences means a business can be liable even without intention to avoid obligations.

The Long Service Leave Authority and its registrar. The registrar is the administering authority under section 6. This means the Authority’s staff must establish procedures for issuing and tracking infringement notices, handling payments, and managing reminder notices. The cost of this system is not disclosed in the Regulation, but the $34 reminder fee is intended to offset some administrative costs. If the system is poorly managed, it could result in unfair or incorrect notices, but the Regulation provides no mechanism for disputing a notice short of electing to have the matter heard in court.

Inspectors appointed under section 71 of the LSL Act. Section 12 designates these inspectors as the only class of persons who may serve infringement notices and reminder notices. This limits the enforcement power to a specialised cohort, reducing the risk of blanket enforcement by general compliance officers. However, it also means that if inspectors are understaffed or undertrained, the infringement notice system may be underutilised. Inspectors must be identified on the notice by name or unique number; a failure to do so may invalidate the notice or render it unenforceable.

Company directors and officers. Because the offences in schedule 1 apply to both individuals and corporations, a director or officer who is personally liable (for example, under the LSL Act’s accessorial liability provisions) could receive an infringement notice in their personal capacity. The corporate multiplier only applies to corporations, so individuals always pay the lower individual penalty. However, a director who fails to ensure corporate compliance may face personal notices if they are deemed to have committed the offence.

Sole traders and partnerships. The definition of “individual” in the Legislation Act includes natural persons, so sole traders are treated as individuals for penalty purposes. Partnerships are not separately addressed in the Regulation; depending on the structure, partners may be jointly and severally liable. The Regulation does not contain any special rules for partnerships.

The Magistrates Court. The court is affected indirectly: infringement notices divert cases away from court proceedings. If a person pays the penalty, no court hearing occurs. If they do not pay, the matter may ultimately come before the court as a prosecution. The Regulation reduces the court’s workload for minor offences, but the court retains jurisdiction to hear contested matters.

Duty of person served with infringement notice. The primary duty is to pay the stated infringement penalty within the time specified in the notice (the Magistrates Court Act generally requires 28 days, but the Regulation does not restate that period). Alternatively, the person may elect to have the matter dealt with by a court. If they do nothing, the administering authority may serve a reminder notice (cost $34) and eventually initiate prosecution. There is no duty to respond to the notice other than by payment or election; there is no requirement to provide an explanation or to prove compliance.

Right to contest the offence. A person who receives an infringement notice retains the right to have the matter heard in court. Under the Magistrates Court Act, part 3.8, paying the penalty does not constitute an admission of guilt, but it does finalise the matter. If the person believes they have a defence (for example, the contribution was paid on time, or they are not the correct employer), they can decline to pay and await court proceedings. The infringement notice must inform the person of this right (per the Magistrates Court Act, section 121(1)(c)).

Duty of authorised person to correctly identify themselves. Sections 9 and 11 require the authorised person serving the notice to be identified by full name (or surname and initials) or by a unique number issued by the administering authority. This duty ensures the recipient can verify the server’s authority. If the notice does not contain such identification, it may be invalid. However, the Regulation does not prescribe the consequences of non-compliance; it would likely be a challenge to enforcement.

Duty to include ACN for companies. Section 10(1) requires an infringement notice served on a company to include the company’s ACN. This is additional to the general content requirements under the Magistrates Court Act. The purpose is to avoid confusion with similarly named entities. Failure to include the ACN may invalidate the notice or at least make it defective.

Duty to serve reminder notice properly. The administering authority can serve a reminder notice if the infringement penalty is not paid within the required period. The cost of serving the reminder notice ($34) is added to the penalty. The reminder notice must also identify the authorised person in the same manner as the original notice (section 11). There is no duty to provide any additional information, such as the consequences of non-payment or a new deadline.

No new duties under this Regulation. The Regulation itself does not impose any direct compliance obligations that are not already present in the LSL Act. The infringement notice process is an enforcement mechanism, not a source of substantive duties. A business that fully complies with the LSL Act will never receive an infringement notice. Therefore, the key duties remain those found in the LSL Act: making contributions to the relevant portable scheme, keeping records, providing information to inspectors, and notifying the Authority of changes.

The infringement notice penalties are fixed dollar amounts listed in schedule 1, column 4. The most common amount is $640 (items 3-8: sections 49, 57(1), 57(2), 58(1), 58(2), 63(2)). Two offences carry the higher amount of $1,600: section 31 (failing to pay contributions) and four schedule offences (1.7(1), 2.7(1), 3.8(1), 4.8(1) - each likely a model provision for different industry schemes). The lowest amount is $160 for section 36 (presumably a record keeping or information offence). For a corporation, these amounts are multiplied by five (section 8(2)), resulting in penalties of $800, $3,200, and $8,000 respectively.

The reminder notice service cost of $34 (section 8(3)) is added if the initial penalty is not paid within the required period. This is a fixed fee, not indexed, and likely intended to cover postage and administrative costs. It is relatively modest compared to the penalties, but it can accumulate if multiple reminder notices are sent (although the Magistrates Court Act likely limits the number of reminders).

Enforcement beyond the infringement notice follows the normal criminal justice pathway. If the penalty is not paid and the person does not elect to have the matter heard, the administering authority may serve a reminder notice. If still unpaid, the matter may be referred for prosecution in the Magistrates Court. At that stage, the offence penalty (in penalty units) applies, and the person may receive a conviction, a higher fine, and potentially costs. The infringement penalty paid (if any) is not a bar to prosecution; the Magistrates Court Act provides that payment of the infringement penalty discharges liability for the offence, but only if paid within the notice period. Once the notice period has expired, the matter proceeds as if no notice had been issued.

The Regulation does not specify any additional enforcement powers. The Long Service Leave Authority cannot issue penalty notices for other LSL Act offences not listed in schedule 1. It also cannot vary penalties or offer instalments. The system is binary: pay the fixed amount or go to court. There is no provision for late payment extensions or payment plans within the infringement notice framework.

From a compliance economics perspective, the infringement penalties present a cost-benefit calculation for a business that may be non-compliant. For example, a building contractor who fails to remit contributions for a short period might calculate that the maximum court penalty (50 penalty units = $8,000) is far higher than the infringement penalty ($1,600). But the risk of prosecution and conviction may still deter compliance. The system creates an incentive to pay even if the person believes they are innocent, because the cost of defending the matter in court may exceed the penalty. This is a common critique of infringement notice systems generally, and this Regulation is no different.

Magistrates Court Act 1930, part 3.8. This is the enabling framework. The Regulation is made under that part. Part 3.8 sets out the general rules for infringement notices: who may issue them, what they must contain (section 121), the effect of payment, the consequences of non-payment, and the power to make regulations prescribing offences and penalties. The Regulation merely specifies which LSL Act offences are covered and what the penalties are. Any matters not addressed in the Regulation (such as time limits, withdrawal of notices, or the right to elect court) are governed by the Magistrates Court Act itself. For example, section 122 of that Act provides that payment of the infringement penalty discharges any further liability for the offence.

Long Service Leave (Portable Schemes) Act 2009. This is the principal Act that creates the portable long service leave schemes and the offences. The Regulation only covers 16 of the many offences in that Act. The Act also contains other enforcement mechanisms: inspectors’ powers, the ability to issue compliance notices, and civil recovery of unpaid contributions. The infringement notice system is an additional, not exclusive, enforcement tool. The administering authority could still choose to prosecute an offence directly even if it could have issued an infringement notice. However, the note to section 5 states the system “is intended to provide an alternative to prosecution,” implying that the authority will generally use infringement notices for minor or first offences and reserve prosecution for more serious breaches.

Legislation Act 2001. The Regulation is a subordinate law subject to the Legislation Act’s rules on interpretation, publication, and amendment. The dictionary note cross-references definitions from the Legislation Act for terms such as “corporation,” “Corporations Act,” and “individual.” The penalty unit value mentioned on the republication cover ($160 for individuals, $810 for corporations) is set under the Legislation Act, section 133. However, as noted, the infringement penalties in the Regulation are fixed dollar amounts, not expressed in penalty units, so they do not automatically adjust. This could lead to anomalies if the penalty unit value increases significantly over time; the relative burden of infringement penalties would decline.

Criminal Code 2002 (ACT). The Regulation does not mention the Criminal Code, but the LSL Act offences are subject to the general principles of criminal responsibility unless excluded. This means that the fault element for strict liability offences (which many LSL Act offences are) is negligence. The infringement notice process does not alter those fault elements; it simply provides a way to resolve them without a court ruling on fault.

Other ACT infringement notice regulations. The ACT has numerous similar regulations under the Magistrates Court Act for other Acts (e.g., road transport, environment, workers compensation). The structure of this Regulation mirrors that common pattern: a schedule listing offences and penalties, a provision for corporate multipliers, and designation of the administering authority. Practitioners dealing with multiple infringement notice regimes will find the structure familiar.

The Regulation has not been amended since its commencement. It was notified on the legislation register on 20 January 2020 and commenced on 21 January 2020 (republication date). The amendment history endnote states that section 2 (commencement provisions) was omitted under the Legislation Act, section 89(4) (which deals with republication formatting). There are no substantive amendments. This indicates that no changes have been made to the list of offences or penalty amounts in over four years. Given that penalty unit values have increased (from $150 to $160 for individuals over the same period), the fixed dollar penalties remain unchanged. This may reflect a policy decision that the penalties are appropriate, or it may be due to administrative inertia. If the LSL Act has been amended to add new offences or modify existing ones, the Regulation has not been updated to reflect those changes. Counsel should verify whether the underlying LSL Act sections referenced in schedule 1 are still current; an amendment to the LSL Act could render a reference obsolete or incorrect.

The source does not record any litigation history, and no cases are mentioned in the Regulation or its notes. As a subordinate law made in 2020 with no amendments, it is unlikely to have been the subject of reported judicial consideration. However, the absence of litigation does not mean no challenges have occurred; infringement notices are typically resolved by payment or by election to go to court, and court proceedings arising from such notices would be heard in the ACT Magistrates Court, which does not publish all decisions. It is possible that some infringement notices have been challenged on technical grounds (e.g., improper identification of the authorised person, failure to include ACN), but such challenges would likely be resolved summarily. The Regulation itself is legally sound and follows a standard format; any litigation would more likely concern the underlying LSL Act offence or the Authority’s conduct rather than the validity of the Regulation.

Corporate multiplier is 5 times. Section 8(2) applies a multiplier of five for corporations. This means a corporation pays $8,000 for an offence where an individual pays $1,600. The multiplier is not scaled to any other factor; it is a blunt legislative choice. A small family company with few employees could face the same penalty as a large construction firm. There is no reduction for size or revenue.

Fixed penalties not indexed. The penalty amounts in schedule 1 are dollar figures, not penalty units. As penalty unit values increase with inflation (the unit was $150 in 2019 and is $160 now), the real value of these penalties has decreased. By 2024, the $1,600 penalty is roughly equivalent to 10 penalty units rather than the 50-unit maximum for the offence. This could reduce the deterrent effect without any legislative amendment.

Reminder notice fee is a fixed cost. Section 8(3) sets a $34 fee for serving a reminder notice. This is low but adds to the total. If the administering authority serves multiple reminder notices (perhaps because of address issues), the cumulative fee could exceed the penalty for a minor offence like section 36 ($160). The Regulation does not cap the number of reminder notices.

Only inspectors may serve notices. Section 12 limits service of infringement and reminder notices to inspectors appointed under section 71 of the LSL Act. If no inspector is available or if the Authority delegates this function to non-inspector staff, any notice served by that staff member could be invalid. Recipients should verify the server’s authority.

Identification requirements can invalidate notices. Sections 9 and 11 require the authorised person to be identified by full name (or surname and initials) or by a unique number. If the notice does not comply, it may be unenforceable. A recipient who receives a notice without proper identification should consider challenging it.

ACN required for company notices. Section 10(1) requires the notice to include the company’s ACN. Omitting this information could also invalidate the notice. However, the Regulation does not state that non-compliance renders the notice void; a court might treat it as a procedural irregularity that can be cured.

The Regulation does not list all LSL Act offences. Only 16 offences are scheduled. If a person commits an offence that is not listed, they cannot receive an infringement notice and must be prosecuted. That does not necessarily mean those offences are more serious; it simply reflects a policy decision not to extend the system to them.

No discretion to vary penalty. The authorised person has no power to reduce the penalty or offer a payment plan. The only options are pay the fixed amount or go to court. This eliminates any flexibility for a business that may have made an honest mistake but needs time to comply.

Potential for double enforcement. The Regulation does not affect the Authority’s ability to pursue other remedies, such as civil recovery of unpaid contributions or compliance notices. A business could receive an infringement notice for failing to pay contributions and also be sued for the contribution amount itself. The infringement penalty is for the offence; the contribution debt remains separately enforceable.

If you or your client receives an infringement notice under this Regulation, the immediate steps are straightforward. First, check the notice for proper form: does it identify the authorised person by name or unique number (section 9)? Does it include the company’s ACN if it is a company (section 10)? If these are missing, the notice may be defective. Second, check that the offence is one listed in schedule 1 (column 2). If the notice alleges an offence not in that schedule, the infringement notice is not authorised and should be challenged.

Third, decide whether to pay or contest. The decision should be based on the strength of the defence and the cost of going to court. For a clear breach, paying may be cheaper than legal fees. For a disputed breach (for example, if contributions were made on time or the person is not the correct employer), electing court may be preferable. The infringement notice must inform you of this right (per the Magistrates Court Act). If you elect court, notify the administering authority promptly; do not pay the penalty.

If you decide to pay, do so within the time specified in the notice (typically 28 days from service). Pay the full amount; partial payment may be treated as non-payment. Keep a record of payment and any receipt. If you intend to claim the penalty as a business expense, note that it is unlikely to be tax deductible as it is a penalty (though legal advice should be sought).

To avoid receiving infringement notices in the first place, ensure compliance with the LSL Act. This means making long service leave contributions to the relevant portable scheme on time and in full, keeping accurate records, providing information to inspectors when required, and notifying the Authority of any changes. The specific offences in schedule 1 include: failure to pay contributions (section 31), failure to keep records (section 36), and multiple offences relating to each of the four industry schemes (sections 57-58, 63, and schedule provisions). If your business operates in building and construction, contract cleaning, community sector, or security, you should have procedures to ensure contributions are calculated and remitted correctly.

If you are a director or officer of a company, be aware that the company’s failure to comply can result in personal liability. Ensure the company has adequate compliance systems. The infringement notice system is a tool for the Authority to enforce compliance without going to court; if you have a robust compliance culture, you should never encounter it.