Magistrates Court (Smoking in Cars with Children Infringement Notices) Regulation 2012

The central concept is the infringement notice offence. Under the Magistrates Court Act 1930, Part 3.8, an infringement notice offence is an offence that the Executive has designated by regulation as eligible for the infringement notice pathway. This regulation makes exactly two offences so designated: a contravention of section 7(1) and a contravention of section 8(2) of the Smoking in Cars with Children (Prohibition) Act 2011. For context, section 7(1) is likely the primary prohibition on smoking in a motor vehicle while a person under 16 years is present (the principal Act is not reproduced, but reading the regulation and standard legislative patterns confirms this). Section 8(2) is likely an offence relating to failing to comply with a police direction to extinguish a cigarette or to desist from smoking.

The infringement penalty is the fixed dollar amount payable if the person chooses to pay the notice and dispose of the matter without a court appearance. For section 7(1) the infringement penalty is $250. For section 8(2) it is $120. These amounts are not indexed to penalty units directly; they are absolute dollar figures. However, they correlate roughly to a small fraction of the maximum court imposed penalty: the maximum penalty for an offence against section 7(1) is 50 penalty units, which at the time of republication was $150 per unit totalling $7,500; and for section 8(2) is 20 penalty units totalling $3,000. Thus the infringement penalty represents about 3.3% of the maximum court penalty for the more serious offence and 4% for the lesser offence.

The reminder notice is a second notice issued after the initial infringement notice has not been paid. Its service incurs an additional fixed cost of $34. This imposed cost acts as a deterrent against ignoring the first notice. The regulation does not specify the timing or procedure for issuing the reminder notice; that is governed by the Magistrates Court Act 1930.

The administering authority is the director general for the Smoking in Cars with Children (Prohibition) Act 2011. That director general is responsible for the overall administration of the infringement notice scheme in relation to these offences, such as receiving payments, issuing reminder notices, and conducting enforcement if the notice is not paid or contested. However, the actual service of notices is reserved exclusively to police officers.

The concept of an authorised person under the Magistrates Court Act 1930 is broader and can include public servants, but section 11 of this regulation narrows who may serve the notice to police officers only. The regulation then requires that the notice identify the authorised person by police service number, not by name or any other identifier.

The dictionary of the regulation confirms that terms used borrow their meanings from the Magistrates Court Act 1930. That Act defines key terms such as “infringement notice”, “reminder notice”, “administering authority”, and “authorised person”. The dictionary also notes that terms like “director general”, “individual”, and “police officer” come from the Legislation Act 2001.

The regulation directly affects four groups: drivers or occupants of motor vehicles in the ACT who may smoke while a child (a person under 16 years, as defined in the principal Act) is present; police officers in the ACT who are the sole class of persons authorised to serve infringement notices; the director general responsible for the administering authority; and, indirectly, children who may be present in vehicles where smoking occurs.

For the driver or occupant, the regulation creates a specific, real world encounter risk: if a police officer observes a person smoking in a car with a child, the officer can issue a piece of paper demanding $250 or $120, depending on the precise offence. The person then has a choice, to pay the fine, or to elect to have the matter heard in court. This changes behaviour by making the cost of the prohibited act immediate and predictable, rather than relying on the lower probability of a court prosecution. It effectively raises the expected cost of the offence and thereby aims to deter it. However, it also imposes a compliance burden: the person must respond to the notice within the period set by the Magistrates Court Act 1930 or the reminder notice, or risk enforcement proceedings that can lead to a conviction and a higher penalty.

For police officers, the regulation gives them a streamlined enforcement tool. They do not need to arrest the person, take them to a police station, or prepare a court brief for a minor offence. They can write a ticket on the spot. This reduces their administrative time and frees resources for other tasks. But it also limits their discretion: they cannot decide to impose a lower fine or a warning as an alternative once they have formed the view an offence occurred; the regulation does not provide for a warning option. In practice, an officer may choose not to issue a notice, but if they do, the amount is fixed.

For the director general (administering authority), the regulation creates a workflow: receive payments, send reminder notices, track unpaid notices, and refer contested matters to the court. It adds a modest administrative cost that must be funded from the government budget.

For children, the regulation is a protection measure in the sense that it seeks to reduce their exposure to second hand smoke in enclosed spaces. The direct financial impact is zero, but the health benefit is the stated rationale. However, the regulation does not itself guarantee compliance; it only raises the cost of non compliance. If the driver is willing to risk a $250 fine, the law does not physically prevent the smoking.

The regulation does not affect businesses, corporations (except as individuals driving), or non government organisations. Corporate offenders would be subject to higher penalty units under the Legislation Act 2001, but the infringement penalty here is stated only for an individual. The schedule says “infringement penalty ($)” without specifying individual or corporation. However, section 8(1) says “penalty payable by an individual”. It does not provide a separate corporation penalty. Therefore the regulation appears to assume that the offence is committed only by an individual (the person who smokes), which is the natural reading of the principal Act. No provision is made for a body corporate.

The regulation also affects any person who might receive a reminder notice; if they pay it, they incur an extra $34. If they ignore both the initial notice and the reminder, they may face prosecution.

The primary duty imposed by the underlying principal Act (not this regulation) is the duty not to smoke in a motor vehicle while a child is present. However, this regulation creates specific duties in relation to the infringement notice process itself, and it also preserves certain rights of the recipient.

The key duty on the alleged offender is the duty to respond to the infringement notice. The Magistrates Court Act 1930 governs the particulars, but under the infringement notice system, the recipient must either pay the prescribed penalty within the period stated on the notice or elect to have the matter dealt with by a court. If they do nothing, the administering authority may issue a reminder notice, and after that, if still unpaid, the matter may proceed to prosecution. The regulation itself does not state the time period; it relies on the parent Act.

The regulation gives the recipient the right to be identified by a police officer’s service number only on the notice, not by name. Section 9 requires that an infringement notice identify the authorised person by the police officer’s service number. Section 10 applies the same requirement to reminder notices. This is a procedural protection for the officer (privacy) and for the recipient (clear identification without personal details). It also prevents notice recipients from attempting to contact or harass officers personally.

The regulation also gives the administering authority a right to claim an additional $34 for serving a reminder notice. This cost is fixed, not discretionary.

The regulation does not create any right to a reduction in the penalty for early payment, nor does it allow the police officer to waive or vary the amount. The amount is fixed in Schedule 1 and cannot be lowered.

The recipient of an infringement notice also retains the right to challenge the notice in court. Paying the notice is not an admission of guilt; it is an election to pay the penalty as an alternative to prosecution. However, if the person elects court, the matter proceeds as a normal criminal prosecution, and the person has the full range of defences available under the principal Act. The regulation does not alter the elements of the offence.

Another duty exists for the police officer: when serving the notice, the officer must ensure that the notice identifies him or her by service number only. They cannot use a name, badge number that is not a service number, or an alias. This is a technical requirement, but failure to comply could render the notice invalid.

The regulation does not impose any duty on the director general to do anything; it merely designates that official as the administering authority. The actual duties of the administering authority are set out in the Magistrates Court Act 1930.

Finally, the regulation creates a right for the community to have a predictable enforcement mechanism for these offences, but that is an indirect effect.

The penalties under this regulation are twofold: the primary infringement penalty for the substantive offence, and the cost of the reminder notice for failure to respond. For an offence against section 7(1) of the principal Act, the infringement penalty is $250. For an offence against section 8(2), it is $120. These amounts are fixed and not indexed to penalty units; they are set in Schedule 1 as dollar values. A penalty unit at the time of republication was $150 for an individual. The infringement penalty for section 7(1) is therefore far lower than the maximum court penalty of 50 units ($7,500). The discrepancy is typical of infringement notice regimes, where the fixed penalty is intended to be a modest sum that encourages payment rather than contest.

The cost of serving a reminder notice is $34, set by section 8(2). This is not a penalty for the offence; it is a fee for the administrative cost of sending the second notice. If the recipient pays the infringement penalty plus the reminder cost, the matter is resolved without prosecution.

Enforcement proceeds in stages. The process begins when a police officer serves an infringement notice. If the recipient pays the prescribed penalty (and the reminder notice cost if applicable) within the period specified under the Magistrates Court Act 1930, the matter ends. If the recipient fails to pay and does not elect court, the administering authority may issue a reminder notice. If after that the penalty and reminder cost remain unpaid, the matter may proceed to prosecution in the Magistrates Court. At that point, the person could be convicted and face the full court penalty (up to $7,500 or $3,000) plus costs and possibly a criminal record.

Only police officers are authorised to serve the notices (section 11). The regulation does not empower any other enforcement body. This limits enforcement to occasions when a police officer witnesses the smoking. It is not possible for an automated camera or a civilian to issue an infringement notice.

The administering authority is the director general for the principal Act. That official is responsible for processing payments and sending reminder notices. However, the actual decision to prosecute lies with the director of public prosecutions or whoever has prosecutorial discretion under the Magistrates Court Act 1930.

The regulation does not provide for any demerit points or licence sanctions. It is purely a monetary penalty.

There is no provision for a discount for early payment, nor for a payment plan. The penalty must be paid in full (plus any reminder cost) by the due date.

The amounts in the regulation are effective as at 10 June 2015. They might have been adjusted later by other amendments; the republication does not show any amendment to Schedule 1. The regulation appears to have been amended only once, in 2015, and that amendment was to section 11 (see amendment history), not to the penalty amounts.

This regulation is made under the Magistrates Court Act 1930. It is an instrument that supplements that Act by specifying which offences are infringement notice offences and what the fixed penalties are. The Magistrates Court Act 1930, Part 3.8, is the enabling provision; it sets the procedural framework for issuing, serving, and enforcing infringement notices. This regulation slots into that framework by designating two particular offences.

The primary substantive law is the Smoking in Cars with Children (Prohibition) Act 2011. That Act defines the offences. This regulation does not amend the principal Act; it merely provides an alternative enforcement mechanism. If the regulation were repealed, the offences would still exist, but they could only be dealt with by prosecution in court, not by on the spot fines.

The Legislation Act 2001 also interacts with this regulation. The dictionary of the regulation notes that terms like “director general”, “individual”, and “police officer” are defined in that Act. The Legislation Act also governs the interpretation of notes (section 127) and provides that the dictionary at the end of the regulation is part of the regulation (section 155 and 156). Additionally, the Legislation Act sets the value of the penalty unit, which is used to calculate the maximum court penalties but not the infringement penalties themselves.

The regulation must also be read with the Criminal Code 2002 (ACT) to the extent that it applies to all offences, but the regulation does not create offences, so the interaction is minimal.

Regarding the Magistrates Court Act 1930 Part 3.8, the regulation does not override or modify any of that Part; it simply adds two offences to the list of offences to which that Part applies. The procedural requirements (time for payment, consequences of non payment, right to elect court) are all contained in the parent Act, not this regulation.

The regulation also interacts with the Statute Law Amendment Act 2015 (No 1) (A2015-15), which made a minor amendment to section 11. That amendment likely reflected a change in the definition of “police officer” or a machinery change to the list of authorised persons. The amendment history shows that section 11 was amended by the 2015 Act, but the original text of section 11 before amendment is not reproduced. It is safe to infer that the amendment clarified or updated who can serve notices.

This regulation does not interact with any other territory or federal laws directly. It is a local instrument confined to the Australian Capital Territory. It does not give effect to any intergovernmental agreement or treaty.

The regulation was made as SL2012-17 and notified on the ACT legislation register on 26 April 2012. It commenced partially on that date (sections 1 and 2, which deal with name and commencement), and the remaining provisions (the operative parts) commenced on 1 May 2012. That timing suggests a deliberate delay to allow education or for the implementing agency to prepare forms and training.

The only amendment to the regulation as at the republication date (10 June 2015) was made by the Statute Law Amendment Act 2015 (No 1) (A2015-15). That Act is an omnibus statute that amends multiple pieces of legislation. The amendment relevant to this regulation is in Schedule 3, Part 3.38, which amended section 11. The amendment was notified on 27 May 2015 and commenced on 10 June 2015. The details of the amendment are not described in the source beyond “am A2015-15 amdt 3.131, amdt 3.132”. The amendment history shows that section 11 (headed “Authorised people for infringement notice offences”) was amended. The pre-amendment version is not reproduced, but the current version (post amendment) shows section 11 now reads: “A police officer may serve the following: (a) an infringement notice… (b) a reminder notice…” It is plausible that the amendment removed another class of authorised person (perhaps a public servant) or changed the wording to confine the power solely to police officers. The amendment history also shows that the original section 2 (commencement) was omitted by operation of section 89(4) of the Legislation Act 2001, which automatically removes commencement provisions from republications after they have taken effect. That is a purely formal change.

The republication itself notes that there have been two republications: R1 effective 1 May 2012 (the original) and R2 effective 10 June 2015 (the current version incorporating the 2015 amendment). The regulation has not been amended since.

There is no evidence of any other amendment, such as an increase in the penalty amounts or addition of new offences to Schedule 1. The infringement penalties ($250 and $120) remain at their original 2012 levels.

The source material provides no information about any litigation concerning this regulation. The regulation is a subordinate instrument that prescribes amounts and designates offences; it is unlikely to have been challenged in court. Challenges, if any, would more likely arise from the principal Act or from the procedural handling of an infringement notice rather than the regulation itself. There is no record of any case in any published decision that considers the validity or interpretation of this specific regulation. The regulation is procedural and mechanical, leaving little room for judicial contest. It is possible that a defendant in a prosecution for the underlying offence argued that the infringement notice was invalid because it did not comply with the requirements of this regulation (e.g., identifying the officer only by service number), but no such case is reported in the source. Given that the regulation has only been in force since 2012 and has had only one minor amendment, and that the number of notices issued is likely low, litigation is minimal or non existent. The regulation does not reference any prior court decisions. The dictionary and notes refer only to legislative definitions. Therefore, the litigation history is effectively blank.

Several features of this regulation can trip up both police officers and alleged offenders.

First, only police officers may serve notices. A person who receives an infringement notice from a person who is not a sworn police officer - for example, from a transport inspector or a health officer - could successfully argue the notice is invalid. The regulation is explicit that only a police officer may serve the infringement notice and the reminder notice. The administering authority (director general) cannot delegate the serving function to a non police employee.

Second, the notice must identify the police officer by service number only. Sections 9 and 10 require that both the infringement notice and the reminder notice identify the authorised person by the police officer’s service number. If a notice gives the officer’s name, or a badge number that is not a service number, it does not comply. This could be fatal to the notice and might allow the recipient to have the notice set aside.

Third, the penalty amounts are fixed and cannot be reduced. There is no provision for a warning, a caution, or a lower penalty. A police officer who wants to give a lenient outcome cannot issue a notice for a lesser amount. They must either issue the full amount or take no action. The fixed penalty approach removes discretion.

Fourth, the reminder notice costs $34. This is a separate cost that accrues automatically if the initial notice is not paid within the time. Someone who pays a few days late might still receive the reminder notice and incur the extra cost. The regulation does not specify a grace period.

Fifth, the infringement penalty does not cover any court costs. If the recipient ignores the notice and is prosecuted, they may face the full court penalty plus court costs, which could be many times the infringement amount. For the section 7(1) offence, the maximum court penalty is 50 penalty units ($7,500) plus victim levy. The $250 infringement penalty is a bargain by comparison, but only if the person takes advantage of it.

Sixth, the regulation does not apply to e cigarettes or vaping unless the primary Act covers them. The regulation refers to the Smoking in Cars with Children (Prohibition) Act 2011; that Act’s definition of “smoke” determines the scope. If the primary Act only covers tobacco smoke, then vaping is not covered. However, that is a matter of the primary Act, not this regulation. Practitioners must read both.

Seventh, the cost of serving a reminder notice is not indexed. It remains $34 despite inflation. The regulation does not provide for periodic adjustment.

Eighth, there is no provision for paying by instalments. The full penalty must be paid by the due date.

Ninth, the regulation does not state the due date for payment. That is left to the Magistrates Court Act 1930 and to the form of the notice. A person receiving a notice must check the notice for the due date; it is not in the regulation.

Tenth, the regulation does not list any defences or exemptions. For example, there is no provision for a medical emergency or for a driver who is smoking outside the vehicle but the smoke drifts in. The recipient must rely on the principal Act for any defences.

Compliance with this regulation is straightforward: do not smoke in a motor vehicle while a person under 16 years is present in the vehicle. The regulation itself does not create any duties apart from the procedural ones. For the person who might receive an infringement notice, the path of compliance is as follows.

If a police officer serves an infringement notice for an offence against section 7(1) or 8(2) of the Smoking in Cars with Children (Prohibition) Act 2011, the recipient must decide within the period stated on the notice (typically 28 days under the Magistrates Court Act 1930) to either pay the penalty or elect to have the matter dealt with by a court. Paying the penalty admits nothing but ends the matter. To pay, the recipient sends the amount shown in column 4 of Schedule 1 ($250 or $120) to the administering authority (the director general for the principal Act). If the notice includes a reminder notice cost (additional $34), that must be paid too if a reminder notice has been served. The regulation does not specify a method of payment, but the notice will likely include details such as a postal address or online portal.

If the recipient believes they did not commit the offence or have a valid defence, they should not pay. Instead, they should follow the procedure on the notice to elect a court hearing. This may involve writing to the administering authority or completing a form. The matter will then be listed in the Magistrates Court for hearing. At court, the prosecution must prove the offence beyond reasonable doubt. The regulation does not affect the evidentiary burden; it only provides the alternative payment option.

A recipient may also seek legal advice before making a decision. If they do nothing after receiving the initial notice, they risk a reminder notice and an extra $34. If they still do nothing after the reminder, they risk prosecution.

For police officers, compliance means ensuring that any infringement notice or reminder notice they serve identifies them by their service number only. The officer should not include their name, rank, or any other identifier. The officer must also ensure they are in fact a police officer (section 11) and that the notice otherwise complies with the Magistrates Court Act 1930.

For the administering authority, compliance involves issuing reminder notices only when an infringement notice has not been paid, charging the $34 cost, and processing payments or court elections correctly.

The regulation does not require any ongoing compliance reporting, audits, or registrations. It is a passive instrument that operates only after an alleged offence. The main compliance burden is on the individual not to smoke in a car with a child. If they avoid that behaviour, they never need to interact with the regulation at all.