Magistrates Court Regulation 2009

Infringement notice management plan. This is a creature of the Magistrates Court Act 1930. It allows a person who has been issued with one or more infringement notices (for example, speeding fines, parking tickets) to enter into a plan to pay the total amount by instalments. The regulation fleshes out who can apply and when the plan can be cancelled. The plan is an alternative to enforcement action such as the suspension of a driver’s licence or the referral of debt to the State Debt Recovery Office.

Prescribed cards. The regulation identifies four specific federal concession cards that qualify a person for an infringement notice management plan. A “gold card” is defined in s 3A(2) as the Repatriation Health Card - For All Conditions, evidencing entitlement under veterans legislation. The cards are not issued by the ACT government; they are administered by the Commonwealth Department of Social Services, Services Australia, or the Department of Veterans’ Affairs. The effect is that the ACT outsources the eligibility determination to the Commonwealth means tests for these benefits. A person who is on a low income but does not hold one of these cards (for example, a person on a state-based concession or no concession at all) cannot apply for a plan under this regulation, even if they would otherwise be able to pay in instalments.

Cancellation triggers for instalment plans. Section 3B lists two circumstances that, if present, allow the administering authority to cancel an instalment plan. The first is missing three or more consecutive instalments. The second is missing six or more instalments in any twelve-month period. These are cumulative defaults, not a single missed payment. The trigger is not a minimum amount in arrears; any missed instalment counts. The regulation does not distinguish between a $10 default and a $500 default. Once a person triggers one of these thresholds, the authority may decide to cancel the plan, but must first consider the matters in s 3C.

Matters to consider before cancellation (s 3C). Before cancelling, the authority must consider the person’s reasons for the default and whether the person is likely to fail to pay further instalments or comply with the plan in the future. This is a prescribed set of considerations. It is not an exhaustive list; the authority may also consider other factors under the Act, but only these two are mandated by the regulation. The authority does not have to consider whether the person still meets the eligibility criteria (for example, still holds a concession card), whether the original infringement was valid, or whether the total debt is proportional to the person’s income.

Scale of costs (schedule 4 of the Court Procedures Rules 2006). This is a detailed schedule that sets maximum amounts for various legal tasks, such as attending court, preparing documents, and appearing in proceedings. It is used in civil matters in the Magistrates Court. The regulation adapts it for criminal costs by: substituting “court” or “parties” for “registrar” in items that refer to the registrar; applying a 67 per cent multiplier to part 4.2 items; and excluding the transitional rule (r 4.12). Part 4.2 covers professional fees for solicitors and barristers. The effect is that a successful party in a criminal costs order can only recover two-thirds of what would be allowed in a civil matter for the same work. The other parts of the scale (for example, disbursements, filing fees) are not discounted. The transitional rule exclusion means that any pre-existing transitional scaling does not apply.

Costs agreement (s 5). If the court orders costs in an amount agreed by the parties, the parties can file a written agreement signed by them or their solicitors. On filing, that amount becomes the costs order. This avoids a taxation or assessment process. If the parties cannot agree, the court may order the registrar to assess costs using the modified scale. The agreement mechanism is only available if the court first makes an order under s 4(1)(b) that the amount be the agreed amount. The court has discretion to adopt that approach.

Persons issued with infringement notices. The primary group affected are people who receive infringement notices (traffic fines, parking tickets, littering penalties, etc.) in the ACT and who are on low incomes or have Commonwealth concession cards. If they hold one of the prescribed cards (health care card, pensioner concession card, or gold card), they can apply for an infringement notice management plan. That plan allows them to pay the total amount in instalments. The regulation affects their ability to retain the plan if they miss payments, and sets out the cancellation triggers. People who do not hold a prescribed card cannot use the plan at all; they must either pay the full amount upfront, request an internal review, or face enforcement action.

The administering authority. This is the ACT government agency (likely Access Canberra or the ACT Revenue Office) that manages infringement notices. The regulation prescribes the grounds on which it may cancel a plan. The authority must also consider the matters in s 3C before cancelling. This imposes a procedural step: the authority must obtain and consider the person’s reasons and assess future compliance. That requires resources and documentation. The prescribed cards also limit the authority’s discretion: it cannot accept applications from people without those cards, even if they demonstrate financial hardship.

Legal practitioners in criminal matters. Section 4 and 5 affect solicitors and barristers who act for parties in criminal proceedings in the Magistrates Court. When costs are awarded (for example, after a successful appeal or a dismissal of charges), the practitioner must calculate costs using the modified scale. The 67 per cent multiplier on part 4.2 items means that the maximum recoverable professional costs are significantly lower than for comparable civil work. This may affect a practitioner’s decision to take on criminal work on a speculative basis, or to settle costs disputes. The ability to file an agreed costs amount (s 5) allows the parties to avoid the scale, but only if the court orders that approach.

The Magistrates Court. The court applies the regulation when making costs orders. The court has discretion to decide the amount under s 4(1)(a) or to order that the parties agree under s 4(1)(b). If the court decides, it must use the scale as modified. This removes any general discretion to award a higher or lower amount except as permitted by the scale. The court also has power to send costs to the registrar for assessment if the parties cannot agree (s 5(5)).

The registrar. The registrar may be called upon to assess costs if the parties cannot agree. The registrar uses the same modified scale (s 5(5) refers to s 4(3)(b) and (c)). This provides a backstop but adds time and cost.

The public fisc. The 67 per cent discount on criminal costs may reduce the cost burden on the state when the prosecution loses and is ordered to pay costs. Conversely, it may undercompensate private parties who successfully defend charges and incur legal fees. The regulation does not address which effect dominates.

Duty of the person on an instalment plan to make payments on time. The regulation does not create an explicit duty to pay, but the cancellation triggers in s 3B assume that the person has a duty to pay each instalment in accordance with the plan. The person’s right to remain on the plan is conditional on staying below the default thresholds: not missing three consecutive instalments, and not missing six in any twelve-month period. If the person misses fewer than three consecutive or fewer than six in any twelve months, the plan cannot be cancelled on these grounds alone, though other grounds under the Act may exist.

Right of eligible persons to apply for a plan. Section 3A effectively confers a right to apply for a plan or to be added to an existing plan, if the person produces one of the prescribed cards. This right is limited to cardholders. The regulation does not say that the authority must approve the application; that is determined by s 131AA of the Act. But the regulation sets a floor: if the applicant holds a prescribed card, the authority cannot reject the application on the ground that the person lacks a card of a type that is not prescribed. In practice, the prescribed cards are the only ones that can be used. The regulation does not provide a dispute mechanism for a person who is refused a plan.

Right of the person to give reasons before cancellation. Section 3C(a) requires the authority to consider any reasons given by the person about why they failed to make payments. This gives the person a right to be heard in the cancellation process, albeit informally. The authority must take those reasons into account, though it is not bound to accept them. The person may explain, for example, that they missed payments due to illness, unemployment, or administrative error. The weight given to those reasons is at the authority’s discretion.

Right of the person to be assessed on future compliance likelihood. Section 3C(b) requires the authority to consider whether it is likely the person will fail to pay further instalments or comply in the future. This is a forward-looking assessment. If the person can show that their current default was temporary and they are likely to resume payments, the authority may decide not to cancel. This right depends on the person providing information about their circumstances; the regulation does not require the authority to proactively gather that information.

Right of a successful party in criminal proceedings to seek costs. The regulation provides the mechanism for quantifying costs. The party entitled to costs can either ask the court to fix an amount under the scale, or seek an agreement with the other party. If the other party agrees, the amount is filed and becomes an order. If not, the party can request registrar assessment. The right to costs itself arises from s 244 of the Act, not the regulation.

Right to recover only up to the scaled amount. The regulation caps recovery to the scale of costs (with the 67 per cent reduction). A party cannot claim more than the scale allows, even if actual legal costs were higher. This may impose a financial burden on the successful party, who must absorb the gap between actual fees and recoverable costs. This is a known feature of cost scales in many jurisdictions, but the additional 67 per cent discount makes it more acute.

Duty of the court to apply the scale when fixing costs. Under s 4(2), if the court decides the amount, it must work it out in accordance with the scale as modified. The court cannot simply pluck an arbitrary figure. This provides predictability but limits judicial discretion.

The Magistrates Court Regulation 2009 does not itself create any penalties for non-compliance. It is a procedural regulation that sets eligibility and cancellation criteria. The enforcement consequences flow from the underlying Act and from the infringement notice scheme.

Cancellation of an infringement notice management plan. The most direct adverse consequence under the regulation is the cancellation of a plan under s 3B. If the administering authority cancels the plan, the person loses the ability to pay by instalments. The full outstanding amount of all infringement notices covered by the plan becomes immediately payable. The authority may then take enforcement action under the Act, such as referring the debt to a collection agency, suspending the person’s driver’s licence, or registering the debt as a civil judgment. The regulation does not provide a right of review or appeal from a cancellation decision; that would be under the Act or general administrative law.

No criminal penalty for default. There is no offence provision under the regulation for failing to pay an instalment. Default is a civil matter. However, the cancellation triggers in s 3B are strict. There is no minimum amount of arrears; missing even one instalment counts towards the threshold. A person who misses three consecutive $10 instalments faces cancellation just as much as a person who misses three $500 instalments.

No penalty for false statements. The regulation does not create an offence for falsely claiming to hold a prescribed card when applying for a plan. That would be a matter for the general criminal law (obtaining a financial advantage by deception) or for the Act if it contains such a provision. The regulation is silent.

Costs orders are enforceable. If the court orders costs under s 4, and the amount is not paid, the party entitled to costs can enforce the order as a civil debt. The regulation does not provide any special enforcement mechanism; it relies on the usual processes of the Magistrates Court for enforcing money orders.

Potential for costs as a deterrent to prosecution. The regulation indirectly affects the behaviour of prosecutors. If the prosecution loses and is ordered to pay costs, those costs are capped at 67 per cent of the civil scale for professional fees. This may reduce the financial risk to the prosecution of bringing weak cases. Conversely, a defendant who successfully defends may not recover all their legal costs, which might deter some defendants from hiring a lawyer, especially in less serious matters.

Costs agreements are contractually binding. If parties file a signed agreement under s 5(4), the agreed amount becomes the costs order. Failure to pay that amount can lead to enforcement. The agreement is not subject to variation by the court after filing, unless the court sets it aside on general grounds.

No separate monetary penalty for failure to comply with the regulation. The regulation is purely prescriptive. Enforcement of its provisions is through the cancellation of a plan (s 3B) or through the cost order process (s 4 and 5). There are no infringement notice penalties or court fines for breaching the regulation itself.

Magistrates Court Act 1930. This is the parent Act. The regulation is made under its rule-making power. Specifically, s 3A prescribes cards for the purposes of s 131AA(4)(b). Section 3B prescribes circumstances for s 131ACA(1)(b)(i). Section 3C prescribes matters for s 131ACA(4)(b). Sections 4 and 5 give content to s 244(1)(d)(i). The regulation does not operate independently; it only fills gaps left by the Act. Any change to the Act (for example, amendment of s 131ACA) could render parts of the regulation inoperative.

Legislation Act 2001. This general ACT Act governs the making, interpretation, and republication of subordinate laws. The regulation is subject to it. The note to s 3 states that notes are explanatory and not part of the regulation, as provided by s 127(1), (4) and (5) of the Legislation Act. The penalty units mentioned in the republication page are under s 133 of that Act (currently $160 for individuals, $810 for corporations). However, the regulation itself does not impose any penalty units. The republication process and editorial changes are also governed by the Legislation Act.

Court Procedures Rules 2006. Section 4(2) of the regulation directly incorporates schedule 4 (the scale of costs) of those Rules as applied with modifications. The regulation modifies the scale by: substituting references to the registrar with the court or the parties (s 4(3)(a)); applying a 67 per cent multiplier to part 4.2 items (s 4(3)(b)); and excluding rule 4.12 (transitional) (s 4(3)(c)). The Court Procedures Rules are made by the Rule-Making Committee under the Court Procedures Act 2004. Any change to that schedule will automatically affect costs calculations under the regulation, unless the regulation is also amended. This creates an interaction where a change in the civil cost scale directly impacts criminal cost recovery without any legislative amendment to the regulation itself.

Social Security Act 1991 (Cwlth). This Commonwealth Act is the source of the health care card and pensioner concession card. The regulation does not incorporate the Act by reference; it merely lists the cards. However, the validity of a person’s card depends on whether it was issued under that Act. If the Commonwealth changes the name or nature of these cards, the regulation would need to be updated to refer to the new cards. A person holding a state-issued concession card or a different Commonwealth card (such as a Commonwealth Seniors Health Card) is not eligible under this regulation.

Veterans’ Entitlements Act 1986 (Cwlth) and Military Rehabilitation and Compensation Act 2004 (Cwlth). These Commonwealth Acts are the basis for the gold card and veteran pensioner concession cards. The definition of “gold card” in s 3A(2) explicitly refers to the Repatriation Health Card - For All Conditions that evidences eligibility for treatment under either Act. The regulation does not require the applicant to produce the card itself; only that the card be of that type. The administering authority would need to verify the card’s validity.

Crimes Legislation Amendment Act 2024 (A2024-12). This ACT Act inserted the current ss 3B and 3C into the regulation, effective 20 April 2024. Before that amendment, the regulation did not contain these provisions. The regulation’s interaction with that amending Act is that the amendment added new circumstances and matters for cancellation. The amendment was part of a broader package of changes to criminal legislation.

Magistrates Court (Infringement Notices) Amendment Act 2020 (A2020-5). This Act inserted s 3A (prescribed cards) into the regulation, effective 27 February 2024 (after a delayed commencement). The regulation interacted with that Act by giving it operational content: until s 3A was made, the Act’s reference to “prescribed cards” had no application. The regulation thus enabled the infringement notice management plan scheme to come into effect.

The regulation was originally made as SL2009-24 on 28 May 2009 and commenced on 30 May 2009 except for sections 1 and 2 which commenced on notification. It has been amended three times.

Statute Law Amendment Act 2013 (A2013-19). This Act amended s 4. The amendment history in the endnotes shows that s 4 was amended by A2013-19 amdt 3.209, effective 14 June 2013. The exact nature of the amendment is not detailed in the available text, but it likely involved updating the reference to the Court Procedures Rules or adjusting the language of the scale. The amendment was part of a standard omnibus statute law revision. This is the only amendment to the costs provisions.

Magistrates Court (Infringement Notices) Amendment Act 2020 (A2020-5). This Act inserted s 3A into the regulation. The Act was notified on 27 February 2020, but part 3 (which amended the regulation) was originally to commence on 27 February 2024 (section 2(2)). That commencement was then amended by the Justice and Community Safety Legislation Amendment Act 2021 (A2021-33), part 15, which altered the commencement provisions. The endnotes show that A2021-33 commenced on 17 December 2021 and amended A2020-5 part 15. As a result, the amendment inserting s 3A into the regulation finally commenced on 27 February 2024, exactly four years after the Act was notified. This long delay suggests that the infringement notice management plan scheme required preparation time.

Crimes Legislation Amendment Act 2024 (A2024-12). This Act inserted ss 3B and 3C into the regulation. It was notified on 19 April 2024 and commenced on 20 April 2024. This is the most recent amendment. It added the cancellation triggers and the matters to consider before cancellation. The timing suggests that the infringement notice management plan scheme had been operational only since February 2024, and within two months the government added cancellation rules. This may reflect a perceived need to tighten the scheme early in its operation.

Republications. The regulation has been republished four times: R1 (30 May 2009, new regulation); R2 (14 June 2013, incorporating A2013-19); R3 (27 February 2024, incorporating A2020-5); R4 (20 April 2024, incorporating A2024-12). The republication history shows that the regulation remained largely unchanged between 2013 and 2024, then received two amendments in quick succession in 2024.

No other amendments. Sections 1, 3, and 5 have never been amended. Section 2 (commencement) was omitted by operation of the Legislation Act (s 89(4)) at some point, likely because commencement provisions are automatically omitted after commencement. The regulation does not contain any schedules or appendices; it relies on the external scale.

The available source material (the regulation text and its endnotes) does not mention any litigation involving the regulation. This is common for a procedural subordinate law that rarely generates its own case law. However, we can analyse the potential for disputes based on the regulation’s provisions.

Costs awards as a source of litigation. Section 4(2) requires the court to work out costs in accordance with the scale as applied. Disputes may arise about which items in schedule 4 apply to criminal matters, whether the 67 per cent multiplier applies to all of part 4.2 or only certain items, and what constitutes a proper claim. The exclusion of the transitional rule (r 4.12) could be contested if a party argues that the transitional rule should still apply. There is no saving provision for costs incurred before the regulation’s amendments. The court may need to interpret the modifications, particularly the substitution of “registrar” with “court or the parties” in part 4.2 items. The term “part 4.2” is defined only by reference to the Court Procedures Rules; if that part is amended, the regulation’s reference may become ambiguous.

Cancellation of infringement notice management plans. Section 3B prescribes only two circumstances for cancellation. If the authority cancels on a ground not listed, or if it fails to consider the matters in s 3C, the person may challenge the decision on administrative law grounds (such as jurisdictional error or failure to take into account a relevant consideration). The regulation does not provide a statutory right of review, so a challenge would likely be by way of judicial review under the ACT Civil and Administrative Tribunal Act 2008 or the common law. The question of what constitutes “reasons given” under s 3C(a) may be litigated: does the authority have a duty to ask the person for reasons, or may it act only on reasons voluntarily provided? The regulation says “any reasons given”, implying that the person must choose to provide them.

Meaning of “prescribed card”. If a person holds a card that is not listed in s 3A but claims it is equivalent, the authority may refuse an application. The person might challenge that refusal, arguing that the prescribed list is exhaustive and the authority has no discretion to accept another card. Alternatively, a person might argue that a card issued under a different Act (for example, a healthcare card from a state scheme) should be treated as a health care card. The courts would likely interpret “issued under” strictly.

Interaction with the ACT Civil and Administrative Tribunal. The regulation does not confer rights to review by ACAT. If a dispute arises about a cancellation or refusal, ACAT’s jurisdiction would depend on other legislation.

No reported cases. As of the republication date, there are no cited cases in the endnotes involving the regulation. Future litigation is possible, especially as the infringement notice plan scheme matures.

The 67 per cent multiplier is a hidden cost trap. Section 4(3)(b) reduces the amount allowed under part 4.2 of the scale of costs by 33 per cent. This is not immediately obvious from a reading of s 4(1). A practitioner who quotes costs to a client based on the full scale may be understating the client’s exposure or overstating the recovery. The 67 per cent applies only to part 4.2 (professional fees), not to disbursements or other parts of the scale. A successful party will still only recover two-thirds of their professional fees, even if the court considers the case complex. This can create a gap between actual costs and recoverable costs, which the party must absorb.

The cancellation triggers in s 3B are mechanical and do not require notice beforehand. A plan holder may miss a payment due to a banking error or forgetfulness, and without any warning from the authority, find themselves in danger of cancellation. The triggers count missed instalments; the authority does not have to send a reminder after the first or second missed payment. Once the third consecutive is missed, the authority can begin cancellation proceedings without further notice. The regulation does not require the authority to tell the person that they have entered the trigger zone.

The prescribed card list is narrow. The regulation only recognises four specific federal cards. ACT-based concession cards (such as the ACT Concession Card for low-income households) are not included. A person who does not hold a federal card but is nonetheless in financial hardship cannot apply for a plan under this regulation. The regulation therefore excludes a class of people who might benefit from the plan. This could be unintentional or a policy choice to align with Commonwealth eligibility.

Section 3C only requires the authority to consider the person’s reasons and future compliance likelihood. It does not require the authority to consider: whether the person still holds the card; whether the original infringement was valid; whether the person has a legitimate dispute; or the proportionality of the debt. This means that a person with a valid dispute about the underlying fine could still have their plan cancelled for missing payments, even if they were withholding payment pending review. The regulation does not protect a person who is acting in good faith.

Costs agreements under s 5 require court order first. Section 5(1) only applies if the court orders under s 4(1)(b) that the costs be the amount agreed by the parties. The parties cannot simply reach an agreement and file it without a court order. If the court orders costs at an amount it decides, then no agreement can be filed under s 5. This limits the flexibility of the parties to reach a settlement on costs after the court has already made an order. The best practice is for the parties to ask the court to order under s 4(1)(b) if they have a potential agreement.

No default scale for agreement. The regulation does not provide a default formula if the parties cannot agree on the amount. Instead, it sends the matter to the registrar for assessment using the modified scale. That assessment adds cost and delay. There is no provision for the court to simply fix an amount without using the scale, unless it first orders the registrar assessment.

The scale of costs may be outdated. The regulation incorporates schedule 4 of the Court Procedures Rules 2006 as in force from time to time. If that schedule has not been updated for many years, the maximum amounts may be unrealistically low, and the 67 per cent multiplier makes them even lower. A party may recover less than the actual cost of legal representation. This could indirectly undermine the right to legal representation if lawyers are unwilling to take cases where cost recovery is insufficient.

The regulation does not address electronic agreements. Section 5(3) says the agreement must be signed by the parties or their solicitors. It does not specify whether electronic signatures or filing is permitted. The general rules of the Court would apply, but the regulation is silent on modern methods.

For persons on an infringement notice management plan. The key compliance obligation is to pay each instalment on time. Avoid missing three consecutive instalments. Also ensure that in any rolling twelve-month period you do not miss six or more instalments. If you are going to miss an instalment, consider whether you can potentially miss fewer than three in a row or fewer than six in twelve months. If you do miss payments, provide written reasons to the administering authority as soon as possible. Explain why you missed (for example, illness, job loss, bank error) and explain why you are likely to make future payments. This gives the authority material to consider under s 3C. Keep records of your payment history and any communications with the authority.

For an applicant seeking a plan. Ensure you hold one of the four prescribed cards listed in s 3A. The card must be current. Present it with your application. If your card has expired, renew it before applying. If you do not hold one of these cards, you cannot use this regulation; you must explore other options such as requesting an internal review of the infringement or seeking an extension of time to pay through other mechanisms.

For legal practitioners in criminal costs. When drafting a costs application or responding to one, check the current version of schedule 4 of the Court Procedures Rules 2006. Identify which items in part 4.2 apply to the work performed. Multiply the maximum amount for each such item by 0.67. Do not apply the multiplier to other parts of the scale (such as filing fees, witness expenses). Exclude any transitional rule (r 4.12). Present the calculation to the court or the other party clearly showing the item number, the base amount, and the 67 per cent figure. If you anticipate a costs agreement, ask the court at the time of the costs order to make an order under s 4(1)(b) rather than fixing an amount itself. Then negotiate the amount with the other party, have both parties or their solicitors sign a written agreement, and file it with the court. The agreement must state the agreed amount. If negotiation fails, ask the court to refer the matter to the registrar for assessment.

For the administering authority (government agency). When processing applications, verify that the applicant holds one of the prescribed cards. Keep a list of acceptable cards. When a plan holder defaults, monitor the number of missed instalments. If three consecutive or six in twelve months are missed, consider cancellation. Before cancelling, obtain any reasons from the person. Send a letter or email asking why payments were missed. Consider the reasons and assess whether the person is likely to comply in the future. Document that you have considered these matters. If you decide not to cancel, note the reasons for that decision. If you decide to cancel, provide written notice to the person and explain the basis for cancellation (which must align with s 3B). Do not cancel solely on the basis of fewer than three consecutive or fewer than six in twelve months, unless there is another ground in the Act.

For court staff and registrars. When setting costs under s 4, apply the modified scale as described. When receiving a costs agreement under s 5, check that the order under s 4(1)(b) exists. If not, the agreement cannot be filed without further order. When the registrar assesses costs under s 5(5), use the same modified scale. Keep records of the assessment for transparency.