Magistrates Court (Planning Infringement Notices) Regulation 2023

Infringement notice offence. This term is defined in the Magistrates Court Act 1930, not in this Regulation, but the Regulation makes it operational by specifying which Planning Act 2023 provisions attract the infringement notice regime. An infringement notice offence is one for which a notice may be served instead of laying a charge. The seven offences are listed in Schedule 1; they are all strict liability or administrative offences relating to planning compliance, with the court penalty set at either 60 penalty units or 10 penalty units.

Penalty payable. The infringement notice penalty is not the same as the maximum court penalty. Under section 8(1), an individual must pay the dollar amount shown in Schedule 1, column 4. For six of the seven offences, that amount is $1,200; for the seventh (item 7, section 473(4) of the Planning Act) it is $200. These amounts are fixed by the Regulation and are not indexed automatically. Under section 8(2), a corporation must pay five times the individual amount, so $6,000 for most offences and $1,000 for the lesser offence. The multiplier is notable: it is higher than the standard corporate penalty unit multiplier of 2 or 3 used in some other Australian jurisdictions.

Administering authority. Section 6 appoints the Territory Planning Authority as the administering body for these infringement notices. That Authority is responsible for receiving payments, issuing reminder notices, and presumably maintaining records of notices served. It also has the power under section 9(b) to assign unique numbers to authorised persons for identification on notices.

Authorised person and inspector. Under section 12, only an “inspector” (as defined in the Planning Act 2023 dictionary) may serve an infringement notice or a reminder notice. The term “authorised person” used in sections 9 and 10 is defined in the Magistrates Court Act; it includes inspectors, but the Regulation specifically limits the power to inspectors. This is a narrower group than, say, all public servants.

Reminder notice. If a person does not pay an infringement notice within the prescribed period, the administering authority may serve a reminder notice. Section 8(3) fixes the cost of serving a reminder notice at $34. That cost is added to the penalty if the notice remains unpaid. The content requirements for a reminder notice (section 11) mirror those for the original notice: it must identify the authorised person by name and surname or initials, or by a unique number.

Schedule 1. This is the core of the Regulation. It lists seven items, each corresponding to a specific Planning Act 2023 offence provision. Column 3 shows the offence penalty in penalty units (as set by the Planning Act), and column 4 shows the infringement penalty in dollars. The relationship between the two is not uniform: for a 60‑penalty‑unit offence, the infringement penalty of $1,200 is exactly half the maximum court fine (60 units x $160 = $9,600 for an individual). For the 10‑penalty‑unit offence, the infringement penalty of $200 is one‑eighth of the maximum. The Regulation does not explain this variation; it simply prescribes the amounts.

The Regulation directly affects three groups: persons alleged to have committed one of the seven scheduled Planning Act offences; corporations that may be liable for those offences; and inspectors of the Territory Planning Authority.

Individuals and corporations. Any natural person or company who is alleged to have contravened a provision listed in Schedule 1 may be served with an infringement notice. Because the offences are strict liability (typically, no mental element), the notice can be issued on the basis of objective facts such as unauthorised development or failure to comply with a condition. Individuals face a $1,200 or $200 penalty; corporations face five times those amounts. The corporate multiplier is significant: a $6,000 penalty for a minor planning breach is a substantial sum for a small business, especially given that the underlying court maximum for a corporation (60 penalty units x $810 = $48,600) is far higher, but the infringement notice penalty is not a trivial amount. The Regulation does not provide for any reduction or waiver based on financial circumstances; the fixed penalty applies regardless.

Inspectors. Section 12 confers a power on inspectors to serve infringement notices and reminder notices. This expands the inspector’s enforcement toolkit beyond formal prosecution. The Regulation does not require any additional training, warrant, or approval before issuing a notice. An inspector must identify themselves on the notice by full name (or surname and initials) or by a unique number assigned by the administering authority. This identification requirement is minimal; the notice need not include the inspector’s photograph, badge number, or contact details beyond what is prescribed.

The Territory Planning Authority. As the administering authority, the Authority bears the administrative burden of issuing notices, processing payments, sending reminder notices, and handling disputes. The Regulation does not allocate any specific funding or staff for this function; it is simply a statutory designation. The Authority also must assign unique numbers to inspectors if it wishes to use that identification method. There is no obligation to publish a register of those numbers, which may affect transparency.

The Magistrates Court. Indirectly, the Regulation affects the workload of the Magistrates Court. By offering an alternative to prosecution, it may reduce the number of contested planning matters that reach court. However, it may also increase the number of applications to set aside or challenge notices, especially if the fixed penalty is perceived as high relative to the severity of the breach.

Solicitors and advisers. Legal practitioners advising clients in planning matters must now inform clients that an infringement notice is a possible outcome. The low cost of paying a $1,200 notice (relative to court proceedings) may encourage early settlement, but it also may discourage clients from challenging unjustified notices because the penalty is small enough to pay rather than contest.

Duty to pay or elect to be prosecuted. The principal duty imposed by the Regulation is triggered only indirectly: the recipient of an infringement notice must either pay the penalty within the time specified in the notice or elect to have the matter dealt with by a court. The Regulation itself does not specify the time period or the procedure for election - those are set out in the Magistrates Court Act 1930, Part 3.8. However, the practical effect is that a person who pays the penalty extinguishes any liability for the offence and cannot be prosecuted for it (subject to the notice being valid). A person who does nothing after a reminder notice may be charged with the offence and face a court hearing, with the possibility of a higher penalty.

Right to procedural correctness. Sections 9, 10, and 11 impose duties on the issuing inspector regarding the content of notices. These are rights for the recipient: a notice that fails to identify the authorised person by name or unique number, or (if served on a company) fails to include the company’s ACN, may be invalid. The recipient can challenge the validity of the notice on procedural grounds. However, the Regulation does not state that invalidity automatically vitiates the notice; that would depend on the Magistrates Court Act and general administrative law.

Right to a reminder notice before escalation. Before a person can be prosecuted for an unpaid infringement notice, the administering authority must serve a reminder notice. The Regulation fixes the cost of serving that notice at $34, which is added to the debt if not paid. This gives the recipient a second opportunity to pay before court proceedings are initiated.

Duty on inspectors to identify themselves. When serving a notice, the inspector must provide identification as prescribed. This is a duty to ensure traceability and accountability. The recipient has a right to know who issued the notice, which is relevant if the recipient wishes to dispute the facts or the inspector’s authority.

No duty to warn or explain. The Regulation does not require the inspector to explain the consequences of the notice or the recipient’s rights. The note to section 5 says the infringement notice system is “intended to provide an alternative to prosecution”, but that note is explanatory and not part of the Regulation (section 4). Therefore, a recipient may not appreciate that paying the notice is an admission of liability (in the sense of accepting the penalty) or that they have a right to elect court.

Right to avoid a criminal record? Paying an infringement notice typically prevents a conviction being recorded, but the Regulation does not address this. The effect would depend on whether the Planning Act 2023 makes the offence a “penalty offence” or whether the Magistrates Court Act treats payment as a final disposition without conviction. Practitioners should verify the record keeping practices of the Territory Planning Authority and the court.

Fixed penalties. The infringement penalties are set in dollars in Schedule 1, column 4. For an individual, they are $1,200 for six offences and $200 for one offence. These figures are not expressed in penalty units; they are fixed amounts that can only be changed by amending the Regulation. The republication note states that a penalty unit is $160 for an individual and $810 for a corporation. The infringement amounts do not correspond to any integer multiple of penalty units: $1,200 is 7.5 penalty units for an individual, which is below the 60‑penalty‑unit maximum. The Regulation thus offers a significant discount from the maximum court fine.

Corporate multiplier. Section 8(2) imposes five times the individual infringement penalty on a corporation. This is a rigid multiplier; there is no discretion to reduce it based on the size of the corporation or the nature of the breach. For a small company, a $6,000 penalty may be disproportionate to the low‑level offence of, say, failing to display a development approval on site (one of the possible offences). The multiplier is directly set by the Regulation, not by reference to penalty unit values.

Reminder notice cost. Section 8(3) sets the cost of serving a reminder notice at $34. This is added to the penalty if unpaid. The cost is modest but fixed; it does not vary with the method of service (post, email, personal service). The administering authority must bear any additional costs if service is difficult.

Enforcement. The Regulation does not itself create enforcement mechanisms. If the infringement notice penalty is not paid within the period and the reminder notice is ignored, the matter may proceed to prosecution under the Magistrates Court Act. The court can then impose the full penalty under the Planning Act 2023 (60 or 10 penalty units), plus any costs. The fixed penalty is therefore not the final sanction; it is an incentive to resolve the matter administratively. There is no provision for late payment penalties or interest on overdue amounts.

No discount for early payment. Unlike some infringement schemes (e.g., traffic fines), the Regulation does not offer a reduced amount if paid within a certain number of days. The penalty is the same whether paid on day one or day twenty.

No power to withdraw or vary a notice. The Regulation is silent on whether the administering authority can withdraw a notice if it was issued in error or if the recipient provides an explanation. This is a gap: a person who believes the notice is wrong has no administrative avenue to have it cancelled without electing court. The only recourse is to refuse to pay and face prosecution, which is a high‑risk strategy.

Interaction with other enforcement action. The note to section 5 says the infringement notice is an alternative to prosecution. If a person pays the notice, they cannot later be prosecuted for the same offence. However, the Regulation does not preclude the Territory Planning Authority from taking other regulatory action, such as issuing a remedial order or seeking an injunction, even if a notice has been paid. The notice only extinguishes criminal liability, not civil or administrative consequences.

Magistrates Court Act 1930. This is the parent Act under which the Regulation is made. The Regulation relies on Part 3.8 of that Act for the procedural framework: the effect of paying a notice, the time limits, the right to elect court, and the consequences of non‑payment. The Regulation takes precedence over the general provisions of Part 3.8 only where it expressly provides otherwise (e.g., the specific identification requirements in sections 9 and 11 supplement the general requirement in section 121(1)(c) of the Magistrates Court Act). The dictionary of the Regulation (page 6) notes that terms such as “authorised person”, “infringement notice”, and “reminder notice” have the same meaning as in the Magistrates Court Act, ensuring consistency.

Planning Act 2023. The Regulation designates seven specific offence provisions from the Planning Act as infringement notice offences. Those provisions are not reproduced in the Regulation; the reader must cross‑reference the Planning Act to understand the conduct prohibited. The penalty units listed in Schedule 1, column 3 are the maximum penalties under the Planning Act for each offence. The infringement penalty is a subset of that maximum. The Planning Act also defines “inspector”, which is the only class of person authorised to serve notices under section 12 of this Regulation. Any change to the definition of “inspector” in the Planning Act would automatically affect this Regulation (see section 3 and the dictionary).

Legislation Act 2001. The Legislation Act governs the making, commencement, and republication of subordinate laws. The notes in the Regulation refer to sections 75, 89, 95, 115, 117, 133, 155, and 156 of that Act. Notably, the value of a penalty unit is determined under section 133, and the republication note on page 1 records the current values. The Regulation itself does not override those values; it sets fixed dollar amounts instead.

Corporations Act 2001 (Cth). Section 10(2) defines “company” by reference to the Commonwealth Corporations Act, meaning only companies registered under that Act must be identified on a notice by their ACN. This excludes unincorporated associations or foreign companies not registered under the Corporations Act. For those entities, the ACN requirement does not apply, but they are still liable as “corporations” for the purposes of the corporate penalty multiplier (since the term “corporation” in the Legislation Act is broader).

No interaction with common law defences. The Regulation does not alter any defence available under the Planning Act or the common law, such as mistake of fact, necessity, or act of God. However, the infringement notice scheme may implicitly discourage reliance on such defences because paying the notice avoids the cost of litigation, even if a defence exists. This is an economic disincentive to assert legal rights.

The Regulation was notified on the ACT Legislation Register on 18 September 2023 as SL2023‑22. Sections 1 and 2 (name and commencement) commenced on that date under section 75(1) of the Legislation Act 2001. The substantive provisions commenced on 27 November 2023, which was the commencement date of the Planning Act 2023 (see section 2 of the Regulation and CN2023‑10). The Regulation has not been amended. The republication date is 27 November 2023, and it is marked as “Republication No 1”. The endnotes show that section 2 (commencement) was omitted under section 89(4) of the Legislation Act because it was spent after commencement. No other amendments have been made.

The stable text means that practitioners can rely on the current version as the first and only version. However, the Regulation is tied to the Planning Act 2023, which is a new Act. If the Planning Act is amended to add or remove offences, this Regulation will need to be updated. The fact that only seven offences are included suggests that the government may add more in future regulations. The absence of amendment history to date gives no indication of government policy on expanding the scheme.

The republication notes and endnotes do not record any court decisions that have considered this Regulation. As of the republication date (27 November 2023), the Regulation had only been in force for a few hours. Therefore, there is no litigation history. For a deep dive, it is important to note that the Regulation is so new that no legal challenges have arisen. Potential grounds for challenge include: (i) the validity of the corporate multiplier (whether it is within the power of the regulation‑making authority); (ii) the adequacy of the identification requirements (whether a unique number alone is sufficient to identify an inspector); (iii) the failure to provide for withdrawal of notices; and (iv) whether the fixed penalties are so high as to coerce payment from innocent recipients, contrary to the presumption of innocence. None of these challenges have been tested.

Further, because the underlying Planning Act 2023 is also new (commenced the same day), there is no body of case law interpreting the specific offence provisions. Any litigation is likely to focus first on the primary Act before reaching this Regulation. The Regulation may be challenged as an improper delegation of judicial power if it effectively forces recipients to choose between paying a large penalty or facing a risk of higher costs in court. However, the High Court has generally upheld infringement notice schemes provided there is a genuine right to elect court.

Corporate multiplier is 5x, not 2x or 3x. Most Australian infringement schemes apply a multiplier of 2 or 3 for corporations. This Regulation applies five times the individual penalty, making corporate penalties exceptionally high relative to the base. For a small builder or developer, a $6,000 infringement notice for a minor procedural breach (such as failing to give a notice under section 473(4) of the Planning Act) could be financially crippling. The Regulation provides no basis for adjustment.

Only seven offences are covered. The Planning Act 2023 contains dozens of offence provisions. The selection of only seven means that many similar breaches (e.g., unauthorised works exceeding a certain threshold) cannot be dealt with by infringement notice and must go through full prosecution. This creates an uneven enforcement landscape: a minor breach is eligible for a $200 notice, while a similar but unlisted breach exposes the person to a court penalty of up to 60 penalty units ($9,600) and a criminal record. Why the seven were chosen is not explained in the Regulation.

No power to withdraw a notice. If an inspector issues a notice in error (e.g., for a breach that did not occur), the recipient has no administrative mechanism to have it cancelled. The only options are to pay and forfeit the right to contest, or to refuse to pay and risk prosecution. The administering authority may informally decide to withdraw, but the Regulation does not require it. This creates a risk of error or abuse.

Reminder notice cost is fixed at $34. That amount is not indexed and may become trivial over time. However, it is added to the penalty if unpaid. If the original penalty is $1,200, the $34 is a small disincentive. But if the penalty is $200 (item 7), the $34 reminder cost is a 17% surcharge, which may be seen as punitive.

Company notice must include ACN. Section 10 requires that an infringement notice served on a company include its ACN. If the inspector omits the ACN or gets it wrong, the notice may be invalid. Companies should check this detail carefully. Individuals have no equivalent requirement; the notice need not include their date of birth or address beyond what the Magistrates Court Act requires.

Inspector identity by unique number only. An inspector may choose to identify themselves solely by a number assigned by the administering authority. The recipient may not be able to determine the inspector’s name from the notice. If the recipient wants to verify the inspector’s authority or complain about their conduct, they may need to request the number from the Authority. The Regulation does not require a public register of numbers.

No defence of “administrative oversight” - because many of the scheduled offences are strict liability, the fact that a breach was accidental or trivial is not a defence to the infringement notice. The only way to raise such arguments is to elect court, which may be more expensive than paying the notice.

Persons with limited English or legal literacy may not understand the notice or the right to elect court. The Regulation does not require any warnings or plain‑language explanations. The note in section 5 is explanatory only and not part of the law.

For a person who receives an infringement notice under this Regulation, the simplest compliance path is to pay the penalty amount within the time specified on the notice (usually 28 days or as set under the Magistrates Court Act). Payment should be made to the Territory Planning Authority (the administering authority) as directed on the notice. The payment should be made in full; part‑payment will likely be rejected. After payment, the liability for the offence is extinguished and no further action is taken.

Step‑by‑step checklist for recipients:

1. Check the notice for validity. Verify that the notice identifies the authorised person by full name and surname, or by initials, or by a unique number assigned by the Authority. If it is served on a company, confirm that the company’s ACN is included. If these details are missing, the notice may be invalid; seek legal advice before paying.

2. Identify the alleged offence. Cross‑reference the offence provision listed on the notice with Schedule 1 of this Regulation. Ensure the provision is one of the seven listed. If it is not, the notice is invalid because it is not an infringement notice offence under section 7. Do not pay; instead, write to the Authority explaining the error.

3. Decide whether to pay or contest. Consider the amount: $1,200 (or $6,000 for a corporation) is the fixed penalty. Compare that to the likely cost of a lawyer to defend the matter, the time involved, and the risk of a higher court penalty. If the offence did not occur or there is a valid defence, it may be worth electing court. However, electing court removes the protection of the fixed penalty; the court can impose up to 60 penalty units ($9,600 for an individual) plus costs. This is a commercial decision.

4. If paying, obtain a receipt. Keep a record of payment, including the date, method (e.g., BPAY, online, cheque), and any transaction reference. The receipt is proof that liability has been discharged.

5. If ignoring the notice, expect a reminder notice. The administering authority will serve a reminder notice, adding $34 to the amount. If still unpaid, prosecution may follow. Do not assume the notice will be forgotten.

6. If electing court, notify the administering authority in writing within the time required by the Magistrates Court Act. Do not pay the penalty; instead, indicate that you wish to have the matter heard. The case will then proceed to the Magistrates Court for determination.

For inspectors serving notices:

• Ensure you are an “inspector” as defined in the Planning Act 2023. Only inspectors, not any authorised person, can serve notices under this Regulation.
• On the notice, provide your full name and surname, or initials, or your unique number assigned by the Territory Planning Authority. Do not omit this.
• If serving a company, verify the company’s ACN and include it on the notice.
• Serve the notice in accordance with the service requirements of the Magistrates Court Act (e.g., personal service, post to last known address).
• Do not serve a notice for an offence not listed in Schedule 1; that would be ultra vires.

For the Territory Planning Authority:

• Maintain a register of unique numbers assigned to inspectors, and ensure that inspectors use them correctly on notices.
• Process payments and manage reminder notices.
• Consider developing a policy for withdrawing or amending notices where errors are identified, even though the Regulation does not require it, to reduce the risk of litigation.

For legal advisers:

• Advise clients that paying a notice is a final disposition and cannot be undone. There is no cooling‑off period.
• If the client is a corporation, check whether the notice was validly served and includes the ACN. Errors may provide a ground to set aside.
• Be aware that the corporate multiplier is unusually high; consider advising small business clients to negotiate or contest if the penalty appears disproportionate, even though no formal negotiation mechanism exists in the Regulation. A letter before action might prompt the Authority to withdraw the notice.

Ongoing compliance: The best way to avoid an infringement notice is to ensure full compliance with the Planning Act provisions listed in Schedule 1. These cover matters such as: failing to comply with a development approval condition (s 403(4)); carrying out development without approval (s 404(4)); failing to give a notice of completion (s 406(1)); failing to comply with a tree protection condition (s 432(1)); failing to give a notice of certain matters (s 438(1)); failing to keep records (s 453(1) and (2)); and failing to give information when required (s 473(4)). Businesses engaged in construction, development, or land management should audit their processes against these specific provisions.