Magistrates Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005

The Regulation operates within the broader infringement notice framework set out in part 3.8 of the Magistrates Court Act 1930. Several key concepts defined in the Magistrates Court Act dictionary are imported: infringement notice (a notice offering the option to pay a fixed penalty to avoid prosecution); infringement notice offence (an offence designated as such); administering authority (the body responsible for managing the infringement notice system for a particular offence); authorised person (someone empowered to issue an infringement notice); and reminder notice (a follow up notice for unpaid amounts). The Regulation tailors these generic concepts to the Sale of Motor Vehicles Act context.

Under section 6, the administering authority for any Sale of Motor Vehicles Act infringement notice offence is the commissioner for fair trading. This is the ACT government official responsible for fair trading and consumer protection matters. The authorised person for this Regulation is specifically defined in section 13 as an inspector (other than a police officer) under section 5B of the Sale of Motor Vehicles Act. This excludes police officers from the infringement notice system for these particular offences, meaning only specially appointed inspectors from the fair trading regulator can issue notices.

The fixed penalty amount for an individual is straightforward: the dollar figure in column 4 of Schedule 1. For a corporation, the penalty is five times that amount. There is no discretion in the Regulation for an authorised person to offer a discounted penalty for early payment, nor is there a provision for a penalty to be increased for late payment beyond the reminder notice cost. The only additional charges are the $34 reminder notice cost and the $200 cost of beginning a proceeding if the penalty is disputed. The Regulation does not specify a time limit for payment; that would be governed by the parent Magistrates Court Act part 3.8.

The Schedule 1 table is central. Each row lists: an item number, the offence provision of the Sale of Motor Vehicles Act, the maximum court penalty expressed in penalty units (column 3), and the infringement penalty in dollars (column 4). For example, item 1: section 7, 50 penalty units, $500 infringement penalty. The infringement penalties are not simply converted from penalty units at the prevailing unit value; they are fixed nominal amounts that do not automatically increase when the penalty unit value changes. The amounts have been amended once (by A2014 47) but have not been indexed.

The Regulation primarily affects any person or corporation alleged to have committed one of the specified offences under the Sale of Motor Vehicles Act 1977 in the Australian Capital Territory. Those offences relate to the sale of motor vehicles, a field dominated by licensed motor vehicle dealers but potentially also affecting private sellers. An individual who sells a motor vehicle in contravention of the Sale of Motor Vehicles Act may receive an infringement notice offering a fixed penalty, typically between $125 and $750 for individuals, rather than being summonsed to court. A corporation that commits the same offence faces an infringement penalty five times higher, ranging from $625 to $3,750.

The Regulation also directly affects the persons and entities who administer and enforce the infringement notice system. The commissioner for fair trading is the administering authority and bears the administrative burden of processing payments, issuing reminder notices, and initiating proceedings if penalties are not paid. Inspectors appointed under the Sale of Motor Vehicles Act are the authorised persons who must physically or electronically serve the notices. These inspectors are not police officers; they are likely public servants from the fair trading directorate. The Regulation requires that each inspector who serves a notice be identifiable either by name or by a unique number assigned by the administering authority. This imposes an administrative cost on the commissioner to assign and track identification numbers.

Legal practitioners and compliance professionals advising motor vehicle dealers and sellers must understand this Regulation because it alters the cost benefit analysis of non compliance. A dealer who breaches the Sale of Motor Vehicles Act now faces a known, fixed penalty. That certainty may encourage some to treat penalties as a cost of doing business, especially if the infringement penalty is lower than the cost of fully complying with the law. On the other hand, the option to dispute liability exists, but the $200 cost of beginning a proceeding acts as a financial barrier to challenging a notice. This may disproportionately affect individuals and small businesses that cannot afford to risk that cost.

The Regulation imposes no substantive duties beyond those already contained in the Sale of Motor Vehicles Act 1977. Its role is procedural: it sets out how the infringement notice system applies to those offences. The key duty for a recipient of an infringement notice is to either pay the prescribed penalty within the time allowed (the time period is not specified in this Regulation; it is set by the Magistrates Court Act) or to elect to have the matter heard by a court. The Regulation does not create a right to a discount for early payment, nor does it impose an additional late fee beyond the $34 reminder notice cost.

A person who receives a notice has the right to dispute liability. If they do so and the matter proceeds to court, they must pay a $200 cost for the beginning of the proceeding under section 12. This cost is separate from any court imposed penalty. The Regulation does not specify what happens if the person is acquitted; presumably the cost would be dealt with under the Magistrates Court Act or court rules. But the Regulation itself offers no refund or waiver of that $200. This arrangement creates a deterrent effect: even a meritorious challenge to an infringement notice carries a $200 cost, which may be higher than the infringement penalty for some minor offences. For example, a $125 penalty for an offence under section 26(2) or 73(2) is less than the $200 proceeding cost, making it economically irrational to dispute a low value notice.

The Regulation imposes duties on the issuing authority regarding the content of notices. Section 9 requires that an infringement notice served on a company include the company’s ACN. Section 10 requires that an infringement notice identify the authorised person either by full name (or surname and initials) or by a unique number assigned by the administering authority. Section 11 imposes the same identification requirement for reminder notices. These requirements are intended to ensure the recipient can identify who issued the notice, which might be relevant for challenging its validity. A notice that fails to include these details may be invalid, though the Regulation does not expressly state that consequence.

The core enforcement mechanism is the fixed infringement penalty. Schedule 1 lists ten offences with infringement penalties for individuals ranging from $125 (items 9 and 10: sections 26(2) and 73(2)) up to $750 (item 7: section 20(4)). For items 1 through 5 the infringement penalty is $500, even though the statutory maximums differ: section 7 carries up to 50 penalty units (currently $7,500 for individuals), while sections 15(1), 16(1), 16(2), and 16(3) each carry only 20 penalty units ($3,000 maximum). The infringement penalty is therefore a substantial discount from the maximum, which is typical for infringement notice systems.

For corporations, section 8(2) imposes a penalty of five times the amount in column 4. For example, a corporate offender under section 7 would pay $2,500, while an individual would pay $500. This multiplier is notable because the underlying Act’s maximum penalty for a corporation is also typically expressed in penalty units that apply equally to individuals and corporations. The Regulation effectively caps the infringement penalty for corporations but at a much higher absolute level.

If a penalty is not paid, the administering authority may serve a reminder notice. The cost of serving that reminder notice is fixed at $34 under section 8(3). That cost is added to the outstanding penalty. If the penalty remains unpaid after the reminder notice, the administering authority may begin proceedings in the Magistrates Court. At that point, the $200 cost under section 12 becomes payable. The Regulation does not specify any enforcement steps beyond that; the court would then proceed under the Magistrates Court Act and the Sale of Motor Vehicles Act to impose penalties potentially up to the statutory maximum.

Enforcement is ultimately in the hands of the commissioner for fair trading, who acts as the administering authority. The commissioner can issue notices, collect penalties, and initiate court proceedings. The Regulation does not create any power to seize vehicles, suspend licences, or impose additional sanctions through the infringement notice system itself; those powers, if any, would be found in the Sale of Motor Vehicles Act.

This Regulation is made under the Magistrates Court Act 1930 and exists solely within that Act’s delegation. It cannot operate independently of part 3.8 of that Act. All the core procedural steps, time limits, payment methods, and consequences of non payment are governed by the Magistrates Court Act, not by this Regulation. The Regulation merely supplements that framework by specifying which offences are designated as infringement notice offences and at what penalty level. If the Magistrates Court Act part 3.8 were amended or repealed, this Regulation would become inoperative.

The Regulation directly incorporates the Sale of Motor Vehicles Act 1977. It does not set out the text of the offences; it refers to them by section number. Any change to the Sale of Motor Vehicles Act offences, such as the addition or amendment of a provision, would require a corresponding amendment to Schedule 1 of this Regulation for those offences to be covered by the infringement notice system. Conversely, if a Sale of Motor Vehicles Act offence is repealed, the corresponding row in Schedule 1 would become redundant but would remain on the statute book until amended.

The dictionary imports several terms from the Legislation Act 2001, including definitions for “commissioner for fair trading”, “corporation”, “Corporations Act”, “individual”, and “police officer”. The Regulation also relies on the Legislation Act for rules about service of documents (see the note to section 13). The dictionary also imports the definition of “company” from the Corporations Act, which is limited to corporations registered under that Act. This means an infringement notice served on an entity that is not a company under the Corporations Act, such as a partnership or an unincorporated association, would not be subject to the ACN requirement of section 9, but the entity would still be liable for the five times corporate penalty if it is a corporation as defined in the Legislation Act.

The Regulation also interacts with the concept of penalty units. The infringement penalties in Schedule 1 are fixed dollar amounts, not penalty units. However, the column 3 statutory penalty is expressed in penalty units. Under section 133 of the Legislation Act, as at the republication date a penalty unit was $150 for an individual and $750 for a corporation. This means the maximum court imposed penalty for a corporation under section 7, for example, would be 50 units times $750 = $37,500, while the infringement penalty for a corporation under this Regulation is only $2,500. The gap between the court maximum and the infringement penalty is very wide, which creates a strong incentive to accept the infringement notice.

The Regulation was originally made as SL2005 31, notified on 10 November 2005. Sections 1 and 2 commenced that day, and the remainder commenced on 12 November 2005 via the Statute Law Amendment Act 2005. It has been amended four times. The Justice and Community Safety Legislation Amendment Act 2008 (A2008 7) amended the dictionary and omitted the expiry provision that had originally set a sunset date for the Regulation. This change, effective 7 May 2008, made the Regulation ongoing rather than temporary. The Red Tape Reduction Legislation Amendment Act 2014 (A2014 47) amended Schedule 1, effective 7 November 2014, to adjust the list of offences and penalties. The exact changes are not detailed in the source, but it is the only amendment to the penalty amounts. The Statute Law Amendment Act 2015 (A2015 15) amended section 13 on authorised people, effective 10 June 2015. That amendment likely altered the description of who can serve notices. Finally, the Justice and Community Safety Legislation Amendment Act 2017 (No 2) (A2017 14) amended sections 4 and 6 and the dictionary, effective 24 May 2017. This amendment replaced the definition of “administrative head of the office of fair trading” with “commissioner for fair trading” and removed the definition of “registrar”. These were machinery changes reflecting departmental restructuring.

The Regulation reached republication number 5 on 24 May 2017. The earlier republications show the life of the instrument: R1 (12 November 2005, original), R2 (7 May 2008, after the 2008 amendments), R3 (7 November 2014, after the 2014 amendments), R4 (10 June 2015, after the 2015 amendments), and R5 (24 May 2017, after the 2017 amendments). No further amendments are noted in the source.

The source text contains no mention of any litigation concerning this Regulation. No cases are cited in the endnotes or in the body of the regulation. This is not surprising for a procedural subordinate law. Any challenge to an infringement notice issued under this Regulation would likely turn on the validity of the underlying Sale of Motor Vehicles Act offence, or on procedural defects in the notice itself, such as failure to identify the authorised person or omission of the company ACN. Challenges could also arise if the administering authority attempted to enforce a notice outside the time limits in the Magistrates Court Act. Given the low stakes of most infringement penalties, it is unlikely many matters proceed to the stage where the interpretation of this specific Regulation is litigated. Practitioners should note that the absence of reported litigation does not mean the Regulation is immune from challenge; it may simply mean that most recipients pay or absorb the penalty rather than fight it, especially given the $200 proceeding cost.

The most significant trap is the corporate multiplier hidden in section 8(2). An individual penalty may appear modest, but a corporation pays five times that amount. For example, the $250 infringement penalty for an individual under section 20(1) becomes $1,250 for a corporation. A business that mistakenly assumes the penalty applies equally to all entities will be unpleasantly surprised. The Regulation defines “corporation” by reference to the Legislation Act dictionary, which likely includes all bodies corporate, not just companies registered under the Corporations Act. This could extend to incorporated associations or other corporate entities involved in motor vehicle sales.

The $200 cost of beginning a proceeding under section 12 is a fixed charge that applies if liability is disputed. It is not refundable even if the recipient is ultimately acquitted, unless the court orders otherwise. For disputed infringement penalties of $125 or $250, the $200 cost may exceed the penalty itself, making it economically irrational to contest even a weak case. This creates a structural incentive to pay rather than challenge, which may erode the presumption of innocence in practice for minor matters.

The reminder notice cost of $34 is not indexed and remains at $34 as set in 2005. That may seem low, but it can accumulate if multiple reminder notices are served? The Regulation does not specify whether more than one reminder notice can be served at $34 each, but typical practice is a single reminder. The cost is for serving the notice, so if service is particularly difficult, that cost may not cover actual expenses.

Section 9 requires inclusion of the company’s ACN on an infringement notice served on a company. If the administering authority serves a notice on a corporate entity and omits the ACN, the notice may be invalid. But the Regulation does not explicitly state that invalidity; a court would need to interpret whether the requirement is mandatory. A challenge on this basis might succeed, but again the $200 proceeding cost to raise it is a hurdle.

The definition of “company” in section 9(2) is limited to companies registered under the Corporations Act. This means an infringement notice served on an incorporated association that is not a Corporations Act company does not need to include an ACN. However, that entity might still be a corporation for the purpose of the five times penalty multiplier, because the dictionary’s definition of corporation is broader. So a non Corporations Act corporate entity could face a five times penalty without the benefit of the ACN identification requirement.

The Schedule does not index the infringement penalties. They remain at the dollar amounts set by the 2014 amendment. As the value of penalty units increases over time, the gap between the maximum court penalty and the infringement penalty becomes wider. This may encourage more recipients to accept the fixed penalty even if they have a defence, because the alternative could be a far higher court imposed penalty. The regulator may also be incentivised to issue more infringement notices as a revenue raising tool, given the fixed penalty is a guaranteed amount without the cost and uncertainty of a court hearing.

For a person or corporation who receives an infringement notice under this Regulation, the compliance path is straightforward. Pay the prescribed penalty within the time limit stated on the notice. The Regulation does not specify that time limit, but part 3.8 of the Magistrates Court Act typically allows 28 days from service. Payment effectively discharges liability for the offence; no conviction is recorded. The amount to pay is the penalty in column 4 of Schedule 1 for an individual, or five times that amount for a corporation. The notice should include the company ACN if the recipient is a company; if not, the recipient might consider challenging the notice, but should first seek legal advice.

If the recipient believes the notice is incorrect or that there is a valid defence, they have the option not to pay and instead to have the matter dealt with by a court. However, they must be aware of the $200 cost under section 12 that will apply for beginning the proceeding. That cost is added to any court imposed penalty, so it raises the financial risk of contesting the notice. The recipient should also note that if they do nothing and ignore the notice, a reminder notice will be served with an additional $34 cost. Continued non payment will lead to court proceedings and potentially a higher penalty.

For businesses that are likely to be in the motor vehicle sales industry, proactive compliance is the best way to avoid receiving infringement notices. This means understanding the duties under the Sale of Motor Vehicles Act regarding licences, advertising, warranties, and other sale related obligations. The infringement penalties are fixed and known, but the reputational and operational costs of receiving a notice can be higher. The five times corporate multiplier makes it particularly important for incorporated businesses to maintain compliance, as an infringement penalty can quickly reach several thousand dollars.

The administering authority, the commissioner for fair trading, is responsible for the system. Businesses that have questions about a specific notice should contact that office. The Regulation does not provide for a right to request an internal review or to negotiate a reduction in the penalty. The only way to dispute is to refuse to pay and accept the $200 proceeding cost. In practice, some may choose to pay even if they believe they are innocent, simply because the penalty is lower than the cost of disputing. That is a feature, not a bug, of the infringement notice system.