Magistrates Court (Security Industry Infringement Notices) Regulation 2003

Infringement notice offence: An offence under a provision of the Security Act listed in Schedule 1, column 2, for which an infringement notice may be served instead of prosecution. The regulation does not define the elements of these offences; they are found in the Security Act. The 12 offence provisions span items 1 to 12 in Schedule 1, with penalty units in column 3 (ranging from 5 to 50 units) and fixed dollar penalties in column 4 (ranging from $50 to $500). Without the Security Act text, we cannot identify the conduct each offence targets, but the penalty gradations suggest a hierarchy of seriousness.

Infringement notice penalty: The amount payable to discharge liability for the offence without a court hearing. For an individual, it is the dollar amount in Schedule 1, column 4 (section 8(1)). For a corporation, it is five times that amount (section 8(2)). This multiplier imposes a significantly higher financial burden on incorporated entities, reflecting either a deterrence rationale or the recognition that corporations derive greater benefit from non-compliance. The penalty is fixed; no discount for early payment is provided in this regulation (the Magistrates Court Act 1930 may contain such provisions, but they are not included here).

Administering authority: Defined by section 6 as the commissioner for fair trading. This officer is responsible for the overall administration of the infringement notice system for these offences, including the authorisation of persons to serve notices (section 12(2)(b) references the commissioner’s power under the Fair Trading (Australian Consumer Law) Act 1992, section 36). The commissioner is not personally required to serve notices; that function is delegated to authorised persons.

Authorised person: Two classes of persons are authorised to serve infringement notices and reminder notices for these offences: (a) police officers (section 12(2)(a)), and (b) persons authorised by the commissioner for fair trading under the Fair Trading (Australian Consumer Law) Act 1992, section 36 (section 12(2)(b)). The note to section 12 references the Legislation Act dictionary for the definition of “police officer”. Authorised persons under the Fair Trading Act would likely include inspectors or compliance officers within Access Canberra or similar agencies. The regulation does not restrict the number of such persons; it simply empowers the commissioner to designate them.

Reminder notice: A notice sent to the alleged offender if the infringement notice is not paid within the prescribed period. Section 8(3) sets the cost of serving a reminder notice at $34, which may be added to the penalty. Sections 10 and 11 impose parallel identification requirements for reminder notices and original infringement notices. The reminder notice mechanism is part of the broader Magistrates Court Act scheme; this regulation only fixes the cost.

Schedule 1: The central table linking each offence provision (column 2) to its statutory penalty in penalty units (column 3) and the infringement penalty in dollars (column 4). The dollar amounts are not a direct multiplication of penalty units by the current unit value ($150 for individuals, $750 for corporations under the Legislation Act 2001, s 133). Instead, they appear to be arbitrarily set fractions of the maximum court penalty, likely to encourage payment. For example, item 1: offence under s 10(1) of the Security Act attracts 50 penalty units (max $7,500 for an individual) but the infringement penalty is only $500. Similar discounts apply across all items.

The regulation directly affects three groups: persons who commit offences under the Security Act, the administering authority and its authorised officers, and corporations operating in the ACT security industry.

Offenders (individuals and corporations): Any person who commits an offence listed in Schedule 1 becomes liable to receive an infringement notice and pay the fixed penalty. For individuals, penalties range from $50 to $500; for corporations, from $250 to $2,500 (five times the individual amount). The regulation replaces the possibility of prosecution with a cheaper, quicker alternative for minor contraventions. However, the right to elect court proceedings is preserved under the Magistrates Court Act; the infringement notice system is an alternative, not a replacement. Individuals and corporations must decide whether to pay the fine, thus accepting liability, or contest the matter in court, potentially facing higher penalties if convicted.

Security licensees and employees: The 12 offences are drawn from the Security Industry Act 2003, which regulates security providers (guards, crowd controllers, security firms). Anyone holding a licence under that Act, or employed in a security role, is at risk of receiving an infringement notice for breaches such as failing to produce a licence, employing unlicensed staff, or not complying with record-keeping requirements. The specific conduct is not detailed in this regulation, but the penalties suggest the target is low-level non-compliance that would be disproportionately costly to pursue through prosecution.

Corporations: The regulation imposes a fivefold penalty multiplier on corporations (section 8(2)). This means a corporate security firm pays $2,500 for an offence that costs an individual $500. The rationale is likely to reflect the greater resources and responsibility of corporations, but it also creates a strong incentive for corporations to ensure compliance by employees. The compliance burden falls on the entity to train staff and monitor conduct, since a single employee’s breach can trigger a corporate fine.

Administering authority and authorised persons: The commissioner for fair trading acquires administrative responsibility for the infringement notice system. Police officers and authorised fair trading officers gain the power to issue notices without needing to arrest or charge. This shifts enforcement from the courts to executive officers, reducing judicial workload but expanding state discretion. The authorised persons must comply with content requirements (sections 9-11) to ensure valid notices.

The public: Indirectly, the public benefits from potentially faster resolution of minor security industry breaches, but also faces the risk that fines become a routine cost of doing business rather than a deterrent. The fixed penalty may be cheaper than rectifying the breach, especially for large corporations, leading to under-deterrence.

Legal practitioners and the court system: Fewer matters are likely to proceed to court for these offences, reducing demand for legal aid, private lawyers, and magistrate time. However, persons who contest notices may still seek legal representation, and the right to a hearing remains.

Duty to pay the infringement penalty: A person served with an infringement notice for a Security Act offence must pay the amount specified in Schedule 1 (adjusted for corporations) within the period prescribed by the Magistrates Court Act. Failure to pay may result in enforcement action, including a reminder notice (with an additional $34 service cost) and ultimately registration as a civil debt or court proceedings. The regulation does not specify the payment period, deferring to the parent Act.

Duty on authorised persons: When serving an infringement notice or reminder notice, the authorised person must include the information required by sections 10 and 11. For police officers, that is their service number. For fair trading authorised persons, it is their full name (or surname and initials) or a unique number assigned by the administering authority. This ensures the recipient can identify the issuer, but it also creates an administrative burden and a source of potential procedural defects if the details are omitted or incorrect. Additionally, when serving a notice on a company, the notice must include the company’s ACN (section 9(1)). This is an extra requirement beyond the general content under the Magistrates Court Act, section 121(1)(c).

Right to elect court proceedings: The regulation does not itself confer a right; it relies on the Magistrates Court Act 1930, Part 3.8. That Part (not reproduced here) typically allows a person who receives an infringement notice to elect to have the matter dealt with by a court. The regulation only creates the notice system; the underlying right to a hearing is preserved. However, the regulation does not mention how to make such an election, so a recipient must look to the parent Act for that mechanism.

Right to clear identification: Sections 10 and 11 give recipients of notices the right to know who issued the notice. For fair trading authorised persons, providing a unique number is sufficient; the person’s name may be omitted if the number is used. This could hinder accountability if the number is not easily linked to a named officer.

Duty on the administering authority: The commissioner for fair trading must ensure that authorised persons are properly appointed under the Fair Trading (Australian Consumer Law) Act 1992, section 36, and that records are kept linking numbers to individuals. There is no express duty to provide that information on request, but the regulation implies it.

No duty to warn or caution: The regulation does not require an authorised person to provide any caution or explanation beyond the formal notice. This contrasts with criminal procedure where a caution is often required before questioning. The infringement notice is a civil/penalty instrument.

Rights of corporations: When served with a notice, a corporation must check that the ACN is correctly stated. If omitted, the notice may be defective, potentially providing a basis to challenge enforcement.

The regulation creates no private right of action; enforcement is a matter between the state and the alleged offender.

Penalty amounts: Schedule 1 sets 12 infringement penalties for individuals, ranging from $50 (item 12: s 47(1)) to $500 (items 1, 2, 9, 10, 11). The statutory penalty in penalty units (column 3) is much higher: e.g., item 1 carries 50 penalty units (max $7,500 for an individual, $37,500 for a corporation). The infringement penalty of $500 represents a 93% discount from the maximum court-imposed fine. This deep discount is typical of infringement notice schemes: it creates a strong incentive to pay rather than contest, and it reduces the administrative cost of enforcement.

Corporate multiplier: Section 8(2) multiplies the individual infringement penalty by five for corporations. So a corporation pays $2,500 for an offence that costs an individual $500. However, the statutory maximum court penalty for a corporation for a 50-unit offence would be 50 x $750 = $37,500, making the infringement penalty still a 93% discount. The multiplier ensures corporations do not receive the same low fixed penalty as individuals, but the discount remains enormous.

Reminder notice cost: Section 8(3) prescribes a $34 cost for serving a reminder notice. This is a fixed additional charge added to the outstanding penalty if the initial notice is not paid. It is low enough not to deter payment, but adds to the total liability.

Enforcement chain: The regulation does not detail the enforcement process beyond the notice stage. The Magistrates Court Act 1930, Part 3.8 likely provides that if the penalty is not paid within the specified period (and no election is made), the penalty may be registered with the court and enforced as a civil debt. Additional costs and enforcement fees may apply under that Act. The regulation is silent on withdrawal of notices, extensions, or payment plans.

Who enforces: Enforcement is initiated by authorised persons (police and fair trading authorised officers) who serve the notices. The administering authority (commissioner for fair trading) oversees the system. There is no requirement for a prosecution brief or evidence sufficient for a criminal conviction; the sworn belief of the authorised person is presumably enough to issue the notice.

Defects in notices: If a notice fails to include the required identification (ss 10, 11) or the company ACN (s 9), it may be invalid. The regulation does not specify the consequence; presumably under the Magistrates Court Act, a defective notice cannot be enforced. This provides a technical defence for recipients but also a trap for authorised persons who omit details.

No criminal record: Payment of the infringement penalty does not result in a criminal conviction; it is an administrative resolution. This is a significant difference from prosecution, which if successful would result in a conviction. For security industry licensees, a conviction could threaten their licence. The infringement notice option therefore preserves the ability to hold a licence even when paying a fine, reducing the career consequences of minor breaches.

Cost to the state: The scheme reduces court and prosecution costs but shifts enforcement costs to the administering authority (issuing notices, processing payments, sending reminders). The $34 reminder fee partially offsets this. Overall, the scheme likely generates net revenue for the ACT government from penalty payments, especially given the high volume of potential offences.

Magistrates Court Act 1930: This is the primary parent Act. The regulation is expressly made under that Act, and section 7 provides that Part 3.8 of the Magistrates Court Act applies to the listed Security Act offences. The regulation supplements that Part with additional content requirements for notices (ss 9-11) and fixes the penalty amounts. Any procedural or remedial provisions in Part 3.8 (e.g., time limits, withdrawal, election, enforcement) apply unless inconsistent with this regulation. The regulation does not override the parent Act; it fills in the details.

Security Industry Act 2003: This regulation does not amend the Security Act. It merely selects 12 of its offence provisions for infringement notice treatment. The Security Act sets the maximum penalties (in penalty units) in column 3 of Schedule 1. The regulation does not affect the elements of those offences, the licensing regime, or any other provisions of the Security Act. A person could still be prosecuted for a listed offence; the infringement notice is an alternative, not a mandatory process. The Security Act’s other offences (not listed) cannot be dealt with by infringement notice under this regulation.

Fair Trading (Australian Consumer Law) Act 1992: This Act is referenced for the power to authorise persons under section 36. Such persons become authorised persons for serving notices under this regulation. The Fair Trading Act likely sets conditions and limitations on the authorisation; this regulation does not repeat them. It also defines “commissioner for fair trading” as the administering authority. The interaction means that fair trading inspectors, already authorised for consumer law enforcement, can now also enforce security industry offences via infringement notices, expanding their portfolio without new legislation.

Legislation Act 2001: Several provisions are relevant. The note to section 4 explains that notes in the regulation are explanatory and not part of the regulation, citing the Legislation Act, section 127(1)(4)(5). Section 133 of the Legislation Act sets the penalty unit value ($150 for individuals, $750 for corporations) which is used in the “offence penalty” column of Schedule 1 but not directly for the infringement penalties. The regulation is a subordinate law and must be consistent with the Legislation Act. The interpretation of terms like “company” (section 9(2) refers to “a company registered under the Corporations Act”) may also draw on definitions in the Legislation Act.

Corporations Act 2001 (Cth): Section 9(2) defines “company” for the purpose of the ACN requirement as a company registered under the Corporations Act. This means the ACN requirement applies only to companies formed under that Commonwealth Act, not to all bodies corporate (e.g., incorporated associations under ACT law). A security firm that is an incorporated association would not need to have its ACN on the notice, but the regulation does not address what alternative identifier might be required.

Criminal Code (ACT): General criminal law principles apply to the underlying Security Act offences. The infringement notice scheme does not rely on criminal procedure; it is administrative. However, if a notice is challenged in court, the criminal standard of proof (beyond reasonable doubt) would apply. The regulation is silent on this, deferring to general law.

Other ACT laws: The regulation does not mention interaction with the Work Health and Safety Act 2011, the Crimes Act 1900, or the Confiscation of Criminal Assets Act 2003. Presumably, if a security industry breach also constitutes a criminal offence (e.g., assault), the infringement notice would not be used; more serious enforcement would apply. The scope is limited to the 12 listed offences.

The regulation was originally made as the Magistrates Court (Security Industry Infringement Notices) Regulations 2003 (SL2003-29), notified on 2 September 2003 and commencing on 3 September 2003. It has been amended multiple times:

• Court Procedures (Consequential Amendments) Act 2004 (A2004-60): Commenced 10 January 2005. Amended sections 3 and 7 (purpose and infringement notice offences) to reflect changes in court procedures. The purpose clause was updated to reference the correct Part of the Magistrates Court Act.

• Statute Law Amendment Act 2005 (A2005-20): Commenced 2 June 2005. Substituted sections 10 and 11 (contents of infringement notices and reminder notices identifying authorised persons) entirely. This likely responded to operational experience: the previous identification rules were replaced with the current scheme distinguishing police service numbers from fair trading authorised person details.

• Justice and Community Safety Legislation Amendment Act 2006 (A2006-40): Commenced 19 October 2006. Amended Schedule 1 by adding item 8 (s 42A(3)) and renumbering subsequent items. This expanded the list of offences to include a new provision in the Security Act, probably a newer offence created by that Act’s amendment.

• Fair Trading (Australian Consumer Law) Amendment Act 2010 (A2010-54): Commenced 1 January 2011. Amended section 12 (authorised people). The amendment updated references from the old fair trading legislation to the new Fair Trading (Australian Consumer Law) Act 1992. This was a machinery change following the harmonisation of Australian consumer law.

• Statute Law Amendment Act 2015 (A2015-15): Commenced 10 June 2015. Made minor amendments to section 12 (authorised people) - specifically amdt 3.127 and 3.128, likely updating terminology or cross-references.

• Crimes Legislation Amendment Act 2015 (No 2) (A2015-36): Commenced 2 October 2015. This is the most recent amendment, which substituted section 12 entirely (authorised people) and also amended sections 10 and 11. The substitution of section 12 appears to have streamlined the definition of “authorised person” to include police officers and fair trading authorised persons, possibly removing previous categories or clarifying that the commissioner’s authorisation under s 36 of the Fair Trading Act is sufficient. The amendments to sections 10 and 11 (by A2015-36, s 39 and s 40) are not specified in the endnotes beyond “am A2015-36 s 39” and “am A2015-36 s 40”; the current text of those sections reflects the changes (likely the option to use a unique number for fair trading authorised persons).

The regulation was renamed from “Regulations” to “Regulation” under the Legislation Act 2001 (editorial change reflected in R2). Schedule 1 item renumbering occurred in R5 (editorial). The current republication R8 (2 October 2015) incorporates all amendments.

This amendment history reveals that the regulation has been updated reactively to changes in underlying legislation (Security Act, Fair Trading Act) and operational needs. The 2015 amendments suggest a tightening of identification requirements for authorised persons, possibly due to challenges or confusion in practice.

The regulation itself has no cited litigation in the provided source. There are no cases mentioned in the endnotes or schedule. This does not mean no litigation has occurred; it means the regulation has not been subject to reported judicial interpretation in the ACT. Given the minor nature of infringement notices, challenges are likely heard in the Magistrates Court and may not be reported. Potential grounds for challenge include defective notice content (failure to include ACN or proper identification), improper authorisation of the person serving the notice, or jurisdictional issues if the offence is not properly listed in Schedule 1.

The absence of litigation history suggests the scheme has operated without significant legal controversy, or that challenges are settled administratively. However, the specificity of sections 9-11 indicates that the drafter anticipated disputes about notice content. The lack of reported cases may also reflect the low value of individual fines (max $2,500 for corporations) making appeals uneconomical.

Practitioners should not assume that the regulation is immune to challenge. The 2015 amendments to sections 10, 11, and 12 may have been prompted by litigation or legal advice identifying weaknesses in earlier versions. Any challenge would likely focus on the validity of the authorisation under section 12 or the accuracy of the identification under sections 10/11.

The regulation interacts with the broader body of ACT administrative law. Judicial review under the ACT Civil and Administrative Tribunal Act or the Judicial Review Act 1991 (ACT) could be sought for procedural errors, but the existence of a statutory appeal from Magistrates Court decisions on infringement notice enforcement would typically be the primary avenue.

Given the narrow scope of this regulation, litigation is improbable unless a systemic issue arises, such as systematic misidentification of authorised persons or overreach by fair trading officers into security industry matters.

Corporate penalty multiplier: Many practitioners may overlook that the infringement penalty for a corporation is five times the individual penalty, not simply the amount in Schedule 1. Section 8(2) makes this explicit. A corporate security firm receiving a $500 notice for item 1 actually owes $2,500. The notice may not clearly state the multiplied amount; the regulation only requires inclusion of the ACN and identification, not the correct penalty. The corporate recipient must calculate the correct amount.

ACN requirement only for companies registered under the Corporations Act: Section 9(2) defines “company” narrowly. An incorporated association or a partnership trading as a security business is not a “company” for this purpose. The regulation does not require any alternative identifier for such entities. If the notice omits an ACN for an entity that is not a Corporations Act company, that is not a defect; but if the officer erroneously includes a false ACN, that could invalidate the notice. Conversely, a notice served on a proprietary limited company that fails to include its ACN may be defective and unenforceable.

Reminder notice cost can escalate liability: The $34 cost under section 8(3) is small but adds to the base penalty. If a corporation owes $2,500 and ignores the notice, it becomes $2,534, then further enforcement costs may apply. The regulation does not cap the total; other laws may add registration fees.

Identification by unique number only: For fair trading authorised persons, section 10(b)(ii) allows “any unique number given to the person by the administering authority”. The recipient may not know the name of the officer who issued the notice, which could hinder accountability. If the number is not traceable, the notice could be challenged. The administering authority must keep a register linking numbers to names; there is no statutory obligation in this regulation to make that register publicly accessible.

No provision for withdrawal or amendment: The regulation is silent on whether an authorised person or the administering authority can withdraw a notice after service. The Magistrates Court Act may provide for this but it is not incorporated. If a notice is issued in error, the recipient may have no quick administrative remedy.

No discount for early payment: The regulation does not offer a reduced penalty for prompt payment, unlike some infringement schemes (e.g., 50% discount for paying within 14 days). The penalty is fixed. There is no incentive to pay early beyond avoiding the reminder notice cost.

Penalty amounts are not indexed: The infringement penalties in Schedule 1 are stated in dollar amounts that are not automatically adjusted for inflation. Over time, the real value declines, reducing deterrence. Contrast with penalty unit amounts which are periodically increased. The government would need to amend the regulation to update dollar amounts.

Offence penalty units vs infringement penalty: The “offence penalty” in column 3 (in units) is the maximum court penalty. The infringement penalty is much lower. This may confuse recipients who see the high unit amount and mistakenly believe they are getting a bargain. They are, but the low penalty may also encourage some to regard the fine as a cost of doing business rather than a deterrent, undermining the purpose of the Security Act.

Authorisation under Fair Trading Act: The authorised person must be validly authorised under section 36 of the Fair Trading (Australian Consumer Law) Act 1992. If the commissioner’s delegation is flawed (e.g., not gazetted, expired), any notice served by that person is invalid. The regulation does not require the notice to state the basis of authorisation; the recipient must trust the issuer is properly authorised.

Application only to 12 offences: Not all Security Act offences are covered. A person may commit a breach of an unlisted provision and face prosecution only. This bifurcated enforcement creates inconsistency: similar misconduct could be treated very differently depending on which provision is charged.

No defence of due diligence: The regulation does not provide a defence for persons who took all reasonable steps to prevent the offence. The fixed penalty is strict liability (the underlying offences may be strict liability; the regulation does not alter that). A licensee who did everything right could still receive a fine for an employee’s action and have to pay the inflated corporate penalty.

For recipients of an infringement notice under this regulation, compliance is straightforward: pay the correct amount within the time specified on the notice. However, careful attention is required to avoid overpayment, underpayment, or losing the right to contest.

Determine the correct penalty: First, identify whether the recipient is an individual or a corporation (body corporate). If a corporation, multiply the amount in Schedule 1, column 4 by five. For a company registered under the Corporations Act, the notice should include the ACN; if it does not, the notice may be defective. Check the item number in the notice against Schedule 1 to confirm the offence provision and penalty. If the notice cites an offence not listed (perhaps due to an error), the notice is likely invalid; seek advice.

Check identification of authorised person: The notice must identify the issuer. For a police officer, the service number must appear. For a fair trading authorised person, it must show either the full name/surname and initials, or a unique number. If none of these are present, or if the identification is ambiguous (e.g., only a surname without initials), the notice may be defective. Document the defect and consider challenging enforcement.

Consider paying or electing court: Within the time period (likely 28 or 56 days under the Magistrates Court Act), the recipient must either pay the penalty or give notice of election to have the matter dealt with by a court. The regulation does not specify the procedure for election; consult the notice itself or the parent Act. If paying, pay the exact amount to the address or online portal indicated. Keep proof of payment.

Corporations: update company details: If the corporation’s ACN has changed (e.g., due to registration change), ensure the notice contains the correct ACN. If incorrect, the notice may still be valid if the entity is correctly identified; but the error could be used to argue invalidity.

For the administering authority (commissioner for fair trading): Ensure that all authorised persons are validly appointed under section 36 of the Fair Trading (Australian Consumer Law) Act 1992 and that their unique numbers (if used) are properly assigned and recorded. Provide training on the content requirements: notices must include ACN for companies, and proper identification. Ensure that reminder notices also comply.

For authorised persons: When issuing a notice, verify the identity of the recipient (individual vs corporation). For corporations, obtain the ACN from the ASIC register or the licence. Do not guess. Fill out the identification fields correctly. If using a unique number, do not use a personal name inconsistently. Avoid serving a notice if you are unsure of your authority.

For legal practitioners advising clients: If the client receives a notice, first verify that the offence is one of the 12 listed in Schedule 1. If it is not, the notice is ultra vires and unenforceable. Check the notice date; if the offence occurred more than 12 months ago, the notice may be out of time under the Magistrates Court Act. Assess whether the penalty is correctly calculated (especially for corporations). Consider the strength of the underlying offence: if the client has a defence, advise election. If paying is cheaper than legal fees, factor in the reminder notice cost ($34) and potential court costs.

Compliance burden on security industry: Firms should educate employees about the 12 offence provisions to avoid triggering notices. Consider internal audit systems to catch breaches before they result in notices. The cost of a corporate fine (up to $2,500) is significant for small operators; compliance investment may be cheaper than paying repeated fines.

No obligation to accept notice: The recipient does not have to accept a notice; the officer can serve it by handing it over or by post. Ignoring a notice leads to increased costs and ultimately enforcement. Proactive engagement is better than silence.