Magistrates Court (Smoke-Free Public Places Infringement Notices) Regulation 2010

This regulation creates the administrative machinery for issuing infringement notices (commonly called on‑the‑spot fines) for a defined set of offences under the Smoke‑Free Public Places Act 2003 (the Smoke‑Free Act). It does not create new smoking prohibitions; rather it selects 19 specific offence provisions from the Smoke‑Free Act and makes them eligible for the infringement notice process under Part 3.8 of the Magistrates Court Act 1930. The consequence is that a person alleged to have committed one of those offences may choose to pay a fixed monetary penalty rather than face prosecution in court.

The regulation prescribes the exact dollar amount of the infringement penalty for each offence. For an individual, the amounts range from $110 for the least serious offences (such as smoking in certain exempt areas or failing to comply with signage requirements) up to $1,000 for the most serious offences (such as smoking in outdoor eating or drinking areas, outdoor public transport stops, or within a certain distance of playgrounds). For a corporation, the penalty is five times the individual amount. So a corporation that commits the most serious offences faces an infringement penalty of $5,000 per notice. The regulation also imposes a $34 cost for serving a reminder notice if the initial notice is not paid on time.

Beyond setting the fines, the regulation specifies who can serve the notices, how the authorised person must identify themselves on the notice, and additional content requirements when a notice is served on a company. The administering authority for these infringement notice offences is the director‑general responsible for the Smoke‑Free Act. This body oversees the system, may assign identification numbers to inspectors, and manages the overall scheme.

The regulation operates as a subordinate law under the Magistrates Court Act 1930 and must be read together with that Act, the Smoke‑Free Act, and the Legislation Act 2001. Its practical effect is to streamline enforcement of smoke‑free laws: a compliance officer or police officer can issue a fine on the spot without needing to initiate court proceedings. This reduces the administrative burden on the enforcement authority and provides a quick, low‑cost resolution for minor to moderately serious offences. However, it also imposes a fixed cost on the recipient that is not subject to judicial assessment of the circumstances, unlike a court imposed penalty.

The central concept is the infringement notice offence. This is an offence that the regulation expressly designates as eligible for the infringement notice procedure under the Magistrates Court Act 1930, Part 3.8. The regulation creates that eligibility by specifying in section 7 that Part 3.8 of the Magistrates Court Act applies to the offence provisions listed in Schedule 1, column 2. Without this regulation, those offences would be prosecutable only through the standard criminal process.

The infringement notice itself is a formal document served on a person alleged to have committed an infringement notice offence. It offers the person an alternative to prosecution: pay the penalty within the prescribed period and avoid further proceedings. The notice must include certain information, including identification of the authorised person who served it. For companies, the notice must also include the company’s Australian Company Number (ACN) in addition to the standard content required by the Magistrates Court Act.

The infringement penalty is the dollar amount specified in Schedule 1, column 4 for each offence. It is fixed and does not depend on the court’s discretion. For an individual, the penalty is exactly that amount. For a corporation, section 8(2) provides that the penalty is five times the amount listed in column 4. This multiplier reflects a common legislative approach that corporate bodies should face higher penalties because they can spread the cost across larger revenue or because the benefit of non‑compliance may be greater.

The authorised person who can serve the notice is either a police officer or an inspector appointed under section 10 of the Smoke‑Free Act. Section 12 of the regulation states that an inspector may serve both an infringement notice and a reminder notice. Police officers are not separately listed in section 12, but they are included as authorised persons under the Magistrates Court Act framework. The regulation provides separate identification rules for police officers (service number only) and other authorised persons (full name, surname and initials, or a unique number issued by the administering authority).

A reminder notice is a follow‑up document served if the initial infringement notice is not paid. The regulation sets the cost of serving a reminder notice at $34. This is a fixed administrative charge added to the penalty if payment is not made promptly. The reminder notice must also identify the authorised person in the same manner as the original notice.

The regulation directly affects any individual or corporation that commits one of the 19 infringement notice offences listed in Schedule 1. For individuals, the most common profile is a person who smokes in a place where smoking is prohibited under the Smoke‑Free Act: for example, an enclosed public place, an outdoor eating or drinking area, a public transport stop, or within 10 metres of a children’s playground. The infringement penalty for such smoking offences ranges from $440 (item 2: smoking in a smoke‑free area under s 7(1)) to $1,000 (items 9‑15: smoking in specific outdoor areas like outdoor dining, transport stops, or near playgrounds). The less serious offences (items 1, 4, 16, 18) carry a penalty of $110 and include matters such as smoking in an exemption area or failing to comply with a direction to stop smoking.

Corporations are affected in two ways. First, a corporation that is the occupier or manager of a smoke‑free area may commit an offence under the Smoke‑Free Act for failing to ensure compliance, such as by not displaying required signs or by permitting smoking in a prohibited area. The infringement penalties for corporations are five times the individual amounts: $550 for the lowest level, $2,200 for the mid‑range, and $5,000 for the most serious (items 9‑15). Second, a company that employs persons who smoke in smoke‑free areas could face indirect consequences, although the regulation itself does not impose vicarious liability. The requirement in section 10 that an infringement notice served on a company must include its ACN targets corporate recipients specifically, ensuring that the notice is correctly directed.

The regulation also affects the enforcement and administrative apparatus. Inspectors appointed under the Smoke‑Free Act gain the power to serve infringement notices and reminder notices. This is an expansion of their enforcement toolkit beyond issuing directions or pursuing prosecution. Police officers are also authorised persons and can issue notices for smoke‑free offences as part of their general law enforcement duties. The administering authority (the director‑general) must manage the system, including potentially issuing identification numbers to inspectors and handling the payment of infringement penalties.

The broader public is indirectly affected because the regulation increases the likelihood of enforcement. The low administrative cost of issuing an infringement notice means that more offences may be detected and penalised compared to full prosecution. This may change smoking behaviour in public places, but it also imposes a fixed cost on those who are issued a notice, regardless of the particular circumstances of the breach.

The regulation does not itself create substantive duties to refrain from smoking or to operate premises in a smoke‑free manner. Those duties are contained in the Smoke‑Free Public Places Act 2003. The regulation’s key duties are procedural, governing the process by which infringement notices are issued, served and paid.

An authorised person (police officer or inspector) who serves an infringement notice has a duty to include proper identification on the notice. Section 9 requires that for a police officer, the notice must contain the officer’s service number. For any other authorised person, the notice must contain either the person’s full name, or surname and initials, or any unique number given to the person by the administering authority for this regulation. This duty also applies to reminder notices under section 11. The purpose is to enable the recipient to verify the identity of the person who issued the notice, which matters if the recipient wishes to dispute the notice or confirm its authenticity.

Where an infringement notice is served on a company, section 10 imposes an additional duty: the notice must include the company’s ACN. This is a content requirement beyond what the Magistrates Court Act 1930, section 121(1)(c) already requires. It helps ensure that the notice correctly identifies the corporate entity and that any payment or subsequent legal action is directed at the right legal person.

The recipient of an infringement notice has the right to receive a notice that complies with these identification requirements. If a notice does not contain the required identification or ACN, the notice may be defective. The effect of such a defect is not specified in this regulation, but under the Magistrates Court Act a defective notice may be set aside or the offence may need to be prosecuted in court. The regulation does not directly create a right to elect court proceedings, but that right arises from the underlying Magistrates Court Act Part 3.8 system: a person served with an infringement notice can choose not to pay and instead have the matter dealt with by a court. Those procedural rights are not detailed here.

The regulation also gives the recipient the right to be served a reminder notice if the initial notice is not paid, but that comes at a cost of $34 (section 8(3)). The reminder notice must also comply with the identification requirements. The recipient’s duty is to pay the penalty within the time stated, or to elect to have the matter dealt with by a court. The regulation does not specify timeframes; those are in the Magistrates Court Act. The penalty amounts are fixed, so there is no right to negotiate a lower amount.

The heart of the regulation is Schedule 1, which sets out 19 specific offence provisions and their corresponding infringement penalties. The penalties are expressed in two columns: column 3 gives the maximum penalty in penalty units for the offence under the Smoke‑Free Act, and column 4 gives the fixed dollar amount that must be paid under an infringement notice. At the republication date, a penalty unit was $150 for an individual and $750 for a corporation (see the note at the front of the republication). The infringement penalty is not a simple multiple of penalty units; it is an independently set figure. For example, the offence under section 6(1) carries a maximum of 5 penalty units (which would be $750 for an individual), but the infringement penalty is $110. This substantial discount reflects the nature of the infringement notice as an alternative to prosecution: the penalty is lower to encourage quick payment and avoid court processes.

For corporations, section 8(2) provides that the infringement penalty is five times the amount in column 4. So for the most serious offences (items 9‑15), the individual infringement penalty is $1,000, making the corporate penalty $5,000. This is consistent with the broader legislative approach in the ACT of imposing higher penalties on corporations, reflecting their greater potential to cause harm and their ability to pay.

The cost of serving a reminder notice is fixed at $34 (section 8(3)). This is an administrative charge that is added to the penalty if the person does not pay the original notice on time. It is not a penalty itself, but it increases the total cost of non‑compliance. There is no indication in the regulation that this amount is indexed or adjustable.

Enforcement of unpaid infringement notices proceeds under the Magistrates Court Act. The regulation does not detail that process, but typically, if a person does not pay and does not elect to have the matter dealt with by a court, enforcement action may include registration of the debt and recovery through the civil process, or the original offence may be prosecuted. Importantly, paying the infringement penalty generally discharges any liability for the offence without a criminal conviction being recorded, but this effect is not stated in this regulation; it is a feature of the infringement notice system under the Magistrates Court Act.

The range of penalties in Schedule 1 shows a tiered approach. Low‑level offences (items 1, 4, 16, 18) are punishable by $110. Mid‑level offences (items 3, 6, 19) are $220. Higher‑level smoking offences (items 2, 5, 7, 8, 17) are $440. The most serious offences (items 9‑15) are $1,000. The last group includes smoking in outdoor eating and drinking areas, outdoor public transport stops, and within a certain distance of playgrounds, as well as related offences such as failing to stop smoking when directed. This suggests that the legislature considers smoking in these areas to be a greater public health risk or nuisance, warranting a higher fixed penalty.

This regulation is made under the Magistrates Court Act 1930, specifically to give effect to Part 3.8 of that Act. That Part establishes a general framework for infringement notices for various offences. Without this regulation, the Part 3.8 machinery would not apply to smoke‑free public places offences because the parent Act does not of itself list which offences are eligible. Section 7 of the regulation is the key provision: it activates Part 3.8 by stating that it applies to the offences mentioned in Schedule 1. Therefore, the procedural rules in Part 3.8 (service, payment, effect of payment, time limits, etc.) apply to these offences by virtue of this regulation.

The regulation also interacts directly with the Smoke‑Free Public Places Act 2003. It does not amend or repeal any provision of that Act; rather, it designates certain of its offence provisions as infringement notice offences. The dictionary defines “Smoke‑Free Act” as the Smoke‑Free Public Places Act 2003. The penalty amounts in Schedule 1 correspond to the serious of the various offences as defined in that Act. Any amendment to the Smoke‑Free Act that creates new offences or changes existing ones would require a corresponding amendment to Schedule 1 of this regulation if those offences are to be included in the infringement notice system. The amendment history shows that the Smoke‑Free Public Places Amendment Act 2016 (A2016‑17) inserted several new items into Schedule 1, reflecting new offences added to the parent Act.

The regulation also incorporates by reference definitions from the Legislation Act 2001. The dictionary notes that terms used in this regulation have the same meaning as in the Magistrates Court Act (by virtue of section 148 of the Legislation Act). It also notes that the Legislation Act defines “corporation”, “Corporations Act”, “director‑general”, “individual” and “police officer”. This means that the definition of “director‑general” for the Smoke‑Free Act is found in the Legislation Act, section 163, not in this regulation.

The Corporations Act (Commonwealth) is referenced in section 10(2), which defines “company” as a company registered under that Act. This ensures that the ACN requirement applies only to companies incorporated under Commonwealth law, not to other corporate forms such as incorporated associations or foreign companies that may not have an ACN. Such entities, if served an infringement notice, would not need to have an ACN included, but the notice would still need to identify them accurately.

The regulation was originally made as SL2010‑50 and notified on the legislation register on 7 December 2010. It commenced on 9 December 2010, with the preliminary sections (1 and 2) commencing on the notification date. Since then, it has been amended four times.

The first amendment was by the Administrative (One ACT Public Service Miscellaneous Amendments) Act 2011 (A2011‑22), schedule 1, part 1.108, which commenced on 1 July 2011. This amended section 6 (administering authority) and the dictionary. The change reflected the transition to a single ACT Public Service structure, likely replacing a specific reference to the chief executive of a particular department with the generic “director‑general”.

The second amendment was by the Statute Law Amendment Act 2013 (A2013‑19), schedule 3, part 3.29, commencing 14 June 2013. This again amended section 6, likely to update the reference to the administering authority to match changes in administrative arrangements.

The third amendment was by the Statute Law Amendment Act 2015 (A2015‑15), schedule 3, part 3.37, commencing 10 June 2015. This amended section 12 (authorised people for infringement notice offences). The amendment history shows amendments 3.129 and 3.130. The exact change is not detailed in the source, but section 12 now states that an inspector may serve infringement notices and reminder notices. Prior to 2015, the section may have been worded differently or included other classes of authorised people.

The fourth and most substantial amendment was by the Smoke‑Free Public Places Amendment Act 2016 (A2016‑17), section 10, which commenced on 18 March 2016. This amended Schedule 1 by adding new offence provisions and penalties. The amendment history indicates that items were renumbered as part of the republication (R5 LA). The new offences likely correspond to expansions of the smoke‑free areas under the parent Act, such as outdoor eating and drinking areas, public transport stops, and children’s playgrounds. The schedule grew from an earlier version (probably with fewer items) to the 19 items shown in the current republication. The penalty amounts for the new offences were set at $1,000 for individuals, the highest bracket, indicating the seriousness with which the legislature viewed these new prohibitions.

The regulation has also undergone republication several times: R1 (9 Dec 2010), R2 (1 Jul 2011), R3 (14 Jun 2013), R4 (10 Jun 2015), and R5 (18 Mar 2016). Each republication incorporates all amendments in force at that date and may include editorial changes authorised by the Legislation Act 2001, Part 11.3.

The source provides no information about any litigation concerning this regulation. There are no reported cases cited in the text or in the endnotes. This is unsurprising for a subordinate regulation of this nature: infringement notice regulations rarely generate litigation that reaches the courts, because unresolved notices either result in payment or, if disputed, proceed to court under the general criminal process where the underlying offence is contested rather than the regulation itself. Additionally, the regulation does not create new substantive offences; it merely designates existing offences for an alternative enforcement mechanism. Challenges to the validity of infringement notices based on non‑compliance with this regulation (e.g., inadequate identification of the authorised person) are possible but would typically be raised in the context of a prosecution for the underlying offence.

The regulation’s interaction with the Smoke‑Free Public Places Act could give rise to litigation if the parent Act is challenged, but that is a matter for the parent Act, not this regulation. The amendment history shows that the regulation has been updated in response to changes in the parent Act, which suggests that the ACT government has been careful to keep the two aligned. Without specific case references, it is reasonable to infer that the regulation has operated without significant controversy, at least in terms of reported judicial decisions. Practitioners should, however, conduct their own searches for any unreported decisions or administrative rulings, as the absence of reported cases does not guarantee the absence of disputes.

Several provisions in this regulation can catch out the unwary practitioner, compliance officer, or recipient of a notice.

The corporate penalty multiplier is five times the individual infringement penalty, not five times the penalty units. Section 8(2) explicitly refers to “5 times the amount mentioned in schedule 1, column 4 for the offence.” Therefore, the infringement penalty for a corporation under item 1 is $550 (5 × $110), not 5 penalty units (which would be $3,750 for a corporation). The multiplier is applied to the dollar amount, not to the penalty unit figure. This is a potentially significant difference because the column 4 amounts are already discounted relative to the maximum court penalty. A corporation might face a $5,000 infringement penalty for the most serious offences, which is less than 7 penalty units (at $750 each, 7 penalty units would be $5,250), but equal to 33.33 penalty units for an individual. The structure is not symmetrical.

The $34 reminder notice cost is fixed and not indexed. While small, it is mandatory and may be added to the penalty if the initial notice is not paid on time. The regulation does not specify when a reminder notice must be served or what happens if the person pays after the reminder notice is served but before it is received. This could be a trap for those who delay payment.

Identification requirements for authorised persons differ between police and non‑police. For a police officer, only the service number is required; the officer’s name need not appear. For any other authorised person, the regulation requires either full name, or surname and initials, OR a unique number issued by the administering authority. This means that an inspector who has not been issued a unique number must provide their full name or surname and initials. A notice that fails to include the correct identification may be invalid, potentially allowing the recipient to avoid liability. Practitioners should check notices carefully for compliance.

When an infringement notice is served on a company, the ACN must be included (section 10). If the company does not have an ACN (e.g., an incorporated association registered under the ACT Associations Incorporation Act), the requirement does not apply. However, it is not excused by the company’s failure to provide its ACN; the authorised person must ascertain it from a register. Failure to include an ACN where required may render the notice defective.

The regulation does not list the full text of the Smoke‑Free Act offences. Practitioners must cross‑reference Schedule 1 with the current version of the Smoke‑Free Act to understand the precise conduct prohibited. For example, item 9 refers to “9F(8)” - this is likely an offence of smoking in an outdoor eating or drinking area, but the regulation does not define the area’s boundaries or exceptions. Reliance on this regulation alone will not suffice to advise a client on the substantive law.

The primary duty of compliance lies with individuals and corporations to ensure they do not commit the offences listed in Schedule 1. This requires knowledge of the Smoke‑Free Public Places Act 2003, which this regulation does not reproduce. Individuals should refrain from smoking in all areas designated as smoke‑free under that Act. Corporations must ensure that their premises, vehicles and outdoor areas comply with the smoking prohibitions, that appropriate signage is displayed, and that employees and customers are aware of the restrictions. The infringement penalties are significant, especially for corporations, so proactive compliance is cost‑effective.

If an infringement notice is served, the recipient should first verify its validity. Check the identification of the authorised person: for a police officer, a service number must appear; for an inspector, either a name (full or surname plus initials) or a unique number issued by the administering authority must be present. If the notice is on a company, check that the ACN is included (if applicable). If any of these details are missing or incorrect, the notice may be defective. In that case, the recipient may consider disputing the notice, but that requires not paying and electing to have the matter dealt with by a court.

If the notice appears valid, the recipient has two options: pay the penalty within the time specified in the notice (usually 28 days under the Magistrates Court Act), or elect to have the matter heard in court. Paying the penalty avoids a court appearance and generally results in no conviction. However, it is not an admission of guilt for any other purpose. The time for payment is critical: if payment is not made within the specified period, a reminder notice may be served, adding a $34 cost. Continued non‑payment may lead to enforcement action.

Corporations must ensure that their ACN is correctly stated on any notice they receive. They should also have procedures in place to receive and process infringement notices promptly, as delays can lead to additional costs. The most common corporate offences likely involve permitting smoking in outdoor dining areas or failing to display no‑smoking signs. Compliance officers should conduct regular audits of premises to ensure adherence to the smoke‑free laws.

Enforcement officers (inspectors and police) must ensure that any notice they serve complies with the identification and content requirements. An inspector should check whether they have a unique number issued by the administering authority; if not, they must include their full name or surname and initials. When serving a notice on a company, the inspector must ensure that the company’s ACN is obtained and included. Failure to comply could lead to the notice being challenged and the penalty not being recoverable.