Magistrates Court (Urban Forest Infringement Notices) Regulation 2023

Infringement notice offence. This is an offence under the Urban Forest Act 2023 that the regulation designates as eligible for the infringement notice process. The effect is that a person alleged to have committed such an offence may receive a penalty notice rather than being charged and summonsed to court. The concept is drawn from the Magistrates Court Act 1930, Part 3.8, and the regulation merely selects which offences are included. There are eight such offences in Schedule 1.

Administering authority. Section 6 designates the director-general for the Urban Forest Act 2023 as the administering authority. This is the agency responsible for overseeing the infringement notice system for these offences. The director-general can allocate unique identification numbers to authorised persons for use on notices, and likely holds the records of issued notices and payments.

Authorised person. The term is defined by cross-reference to the Urban Forest Act 2023 dictionary. Section 12 gives an authorised person the power to serve infringement notices and reminder notices. The regulation does not specify the qualifications or appointment process for authorised persons; that is left to the parent Act.

Penalty units vs infringement penalty amounts. The Urban Forest Act 2023 itself prescribes maximum penalties in penalty units for each offence. The regulation does not alter those maxima; it sets a lower fixed amount that, if paid, discharges liability without a court hearing. The infringement penalty in column 4 is a flat dollar sum, not a proportion of the penalty-unit maximum. At the republication date, one penalty unit equals $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133). So a 50-unit maximum is $8,000 for an individual and $40,500 for a corporation, but the infringement penalty is only $1,600 or $1,200 for an individual, and 5 times that for a corporation ($8,000 or $6,000). This represents a significant discount relative to the maximum court-imposed penalty, which is typical for infringement notice schemes.

Corporate multiplier. Section 8(2) provides that a corporation pays five times the infringement penalty amount listed for an individual. This is a common feature in ACT infringement notice schemes. The multiplier does not correspond to the corporate penalty-unit rate (which is also five times the individual unit rate under s 133(3) of the Legislation Act), but the effect is similar: the infringement penalty for a corporation is at or below the maximum court penalty for individuals.

Reminder notice. Section 11 of the regulation, read with Part 3.8 of the Magistrates Court Act, allows a further notice to be sent if the initial infringement notice is not paid. The cost of serving that reminder notice is fixed at $34 by section 8(3). This sum is added to the penalty if the recipient does not pay before the reminder is issued.

Contents of notices. Sections 9, 10 and 11 prescribe additional information that must appear on notices. For infringement notices, the authorised person must be identified by name or unique number. For companies, the ACN must appear. These requirements supplement the general content obligations in the Magistrates Court Act.

The regulation directly affects any person (individual or corporation) who is alleged to have committed one of the eight listed offences under the Urban Forest Act 2023. Those offences relate to unauthorised interference with trees classified as registered, remnant, public or regulated. The actual conduct covered by each offence provision is not detailed in this regulation, but the categories of tree suggest the regulation primarily touches landowners, developers, arborists, utility contractors, and anyone performing works on public land or private land containing protected trees. The effect extends to both intentional acts and possibly negligent or inadvertent acts, depending on the mental element of the parent offences.

Property owners who wish to remove, prune or damage a tree that is registered or remnant face a potential infringement penalty of $1,600, or $1,200 if the tree is public or regulated. For a corporation (including a development company, a strata corporation or a body corporate), the penalty is $8,000 or $6,000 respectively. The regulation thus imposes a direct financial cost on any entity that engages in tree works without prior authorisation under the Urban Forest Act. This creates a price schedule for non-compliance: the decision to bypass the approval process must be weighed against the fixed penalty amount. For a developer clearing a site with multiple protected trees, the aggregate penalty could be substantial, but the per-tree penalty may be a calculable cost of doing business.

The regulation also affects government officials and agencies. The director-general is the administering authority and must allocate unique numbers if any are used. Authorised persons (likely inspectors or rangers appointed under the Urban Forest Act) must ensure their notices comply with the identification requirements. The administrative burden of issuing notices, processing payments and issuing reminder notices falls on the administering authority, funded from the public purse.

Small businesses that provide tree removal or pruning services may be indirectly affected if they are contracted by landowners to perform works that turn out to be in breach of the Urban Forest Act. Although the offence is likely attributable to the person who causes the tree damage (which could be the contractor), the regulation does not distinguish between owner and contractor. A self-employed arborist who removes a registered tree without approval may receive a $1,600 infringement notice, with no provision for a warning or notice to rectify. This represents a fixed cost that may be disproportionate to the small business's turnover.

The regulation does not create any rights of appeal or review within its own text; the recipient of an infringement notice may elect to have the matter dealt with by a court under Part 3.8 of the Magistrates Court Act, which imposes its own procedural requirements. The fixed penalty thus operates as a price signal for certain conduct. Whether that price is an effective deterrent or merely a tax on compliance depends on the enforcement rate and the ease of obtaining prior approval under the Urban Forest Act.

Duty to pay the infringement penalty. A person served with an infringement notice for an Urban Forest Act offence incurs a duty to pay the amount specified within the time allowed under the Magistrates Court Act (typically 28 days, though this regulation does not restate that). If the person does not pay, the administering authority may serve a reminder notice at a cost of $34, and further enforcement action may follow under the parent Act, including potential court proceedings. The duty is not absolute; the recipient may instead elect to have the matter heard by a court, in which case the penalty is no longer fixed and the court may impose a higher penalty up to the maximum penalty units.

Right to elect a court hearing. The regulation does not explicitly state this right, but it is imported from the Magistrates Court Act Part 3.8. The recipient of an infringement notice can choose not to pay and instead require the matter to be dealt with by a court. This is a fundamental safeguard, but it involves the cost and inconvenience of legal proceedings, which may deter individuals from exercising it, especially for the lower $160 penalty.

Duty of authorised persons to include required information. Sections 9, 10 and 11 impose obligations on the authorised person serving the notice. The infringement notice must identify the authorised person by full name or surname and initials, or by a unique number allocated by the administering authority. A notice that fails to comply with these requirements may be invalid, though the regulation does not specify consequences. The note to section 10 cross-references the Magistrates Court Act section 121(1)(c) on the general content of infringement notices.

Right to know the penalty amount. The regulation provides fixed penalties for each offence, so a person receiving a notice can verify that the amount matches the schedule. However, the notice itself must state the amount; the regulation does not require that the notice reproduce the schedule or explain the corporate multiplier.

Rights concerning reminder notices. If a reminder notice is served, the recipient must pay the additional $34 cost if the notice was validly served. The reminder notice must identify the authorised person in the same way as the original notice.

No right to challenge tree classification. The regulation does not provide any mechanism for disputing whether a tree is registered, remnant, public or regulated within the infringement notice process. That classification is likely determined by the Urban Forest Act and the register maintained under it. If the recipient believes the tree was wrongly classified, the only remedy is to elect court proceedings and raise that issue as a defence.

No right to a reduction in the penalty for early payment. The regulation does not provide any discount for prompt payment, unlike some other ACT infringement notice schemes (e.g., for traffic offences). The penalty is fixed at the amount in the schedule, and no variation is permitted.

The infringement penalties set out in Schedule 1 range from $160 to $1,600 for individuals. The most serious offences are those carrying 50 penalty units in the parent Act: items 1 through 6 all attract $1,600 for registered or remnant trees, and $1,200 for public or regulated trees where the provision distinguishes (items 1 and 2). Items 3, 4, 5 and 6 (offences under sections 33(1), 49(1), 90(1) and 109(2) of the Urban Forest Act) each attract $1,600 irrespective of tree type. Item 7 (section 118(5)) attracts 20 penalty units and an infringement penalty of $640. Item 8 (section 120(1)) attracts 5 penalty units and an infringement penalty of $160.

For corporations, section 8(2) multiplies these amounts by five. Thus a corporation that contravenes a provision carrying $1,600 for an individual will face an $8,000 infringement notice; for $1,200, $6,000; for $640, $3,200; for $160, $800. This multiplier reflects the higher maximum penalty for corporations under the Legislation Act (5 times the individual penalty unit value), but the infringement penalty is still well below the court-imposed maximum.

The cost of serving a reminder notice is $34. This is a fixed administrative cost, not scaled to the penalty amount. It is added to the outstanding penalty if the reminder notice is issued and the person does not pay before service.

Enforcement of unpaid infringement notices follows the process under the Magistrates Court Act Part 3.8. If a person does not pay the penalty within the prescribed period and does not elect to have the matter dealt with by a court, the administering authority may take further action, including registering the unpaid amount as a judgment debt or referring the matter for prosecution. The regulation itself does not create any additional enforcement powers. The value of the penalty is modest relative to typical court costs, so it is likely that most recipients will pay to avoid the hassle of a court appearance. This creates a risk that the infringement notice system becomes a revenue source rather than a deterrent, depending on enforcement intensity.

The legislation does not impose any additional penalties beyond the fixed amount. There is no provision for escalating penalties for repeat offenders within the infringement notice system; each notice is independent. However, repeated non-compliance could lead the administering authority to choose prosecution instead of issuing further infringement notices, which carries higher maximum penalties.

The penalty for a corporation is significant: $8,000 for a registered tree offence. For a large development company, this may be a manageable cost, but for a small incorporated business (e.g., a landscaping company), it could be substantial. The regulation does not consider the financial capacity of the recipient.

Magistrates Court Act 1930. This regulation is made under that Act and relies on Part 3.8 for the infringement notice framework. The regulation specifies which Urban Forest Act offences are “infringement notice offences” for the purposes of that Part. It also supplements the content requirements for notices beyond those in section 121 of the Magistrates Court Act. The obligation to include the company’s ACN is additional to the general content requirements.

Urban Forest Act 2023. This is the parent Act that creates the substantive offences. The regulation does not define the elements of those offences; it only addresses the penalty mechanism. The classification of trees (registered, remnant, public, regulated) is determined by the Urban Forest Act. The definition of “authorised person” is taken from the Urban Forest Act dictionary. The administering authority is the director-general under that Act.

Legislation Act 2001. That Act defines key terms such as “corporation”, “director-general”, and “individual” that are used in this regulation. It also sets the value of a penalty unit (section 133). At the republication date, one penalty unit is $160 for an individual and $810 for a corporation. The regulation does not rely on those values directly for the infringement penalties; it specifies fixed dollar amounts. However, the penalty units in column 3 of the schedule reflect the maximum court penalty under the Urban Forest Act. The Legislation Act also governs the publication and commencement of this subordinate law.

Corporations Act 2001 (Cth). The regulation uses the term “company” meaning a company registered under the Corporations Act. Section 10 requires that an infringement notice served on a company must include its ACN. This ensures that the notice identifies the correct legal entity and facilitates administrative enforcement against corporations.

Human Rights Act 2004 (ACT). While not mentioned in the regulation, the infringement notice system may engage the right to a fair hearing. The ability to elect court proceedings is an important safeguard. The regulation does not provide any special human rights analysis.

Criminal Code 2002 (ACT) and common law principles. The regulation does not address fault elements, defences or burden of proof. Those are left to the Urban Forest Act and general principles of criminal responsibility.

The regulation is silent on its interaction with other laws that may impose civil penalties or orders relating to trees. For example, a person who damages a tree may also face a civil claim for damages under common law or statutory nuisance provisions. The infringement notice does not preclude such remedies; it only deals with the criminal penalty aspect.

The regulation has not been amended since its commencement. Section 2 (commencement) was omitted by the Legislation Act 2001, section 89(4), which is a standard editorial provision removing spent commencement clauses from republications. The regulation was notified on the ACT legislation register on 23 November 2023, with sections 1 and 2 commencing immediately (under section 75(1) of the Legislation Act) and the remainder commencing on 1 January 2024, aligned with the commencement of the Urban Forest Act 2023. There are no known amending laws.

The absence of amendment history is notable: it reflects that the regulation is less than a year old as of the republication date. The penalty amounts may need to be updated periodically if penalty unit values increase under the Legislation Act, but the regulation uses fixed dollar amounts, not a formula tied to penalty units. This means that as the value of a penalty unit rises with inflation (the Legislation Act allows for periodic adjustment), the infringement penalties will become relatively cheaper compared to the court-imposed maximum. Unless the regulation is amended, the fixed dollar amounts will erode in real terms.

The dictionary definition of “authorised person” is a signpost definition to the Urban Forest Act, meaning any changes to that definition in the parent Act will automatically flow through to the regulation. This could expand or restrict the class of persons who may serve notices without amendment of this regulation.

There is no recorded litigation that directly considers this regulation as of its republication date. Because it has been in force only since 1 January 2024 and concerns relatively minor offences, it is unlikely that any cases have yet reached the superior courts. However, there may be applications in the Magistrates Court under Part 3.8 of the Magistrates Court Act challenging the validity of specific infringement notices or the application of the penalty amounts. Such challenges could arise on the following grounds:

• The authorised person was not properly identified (sections 9, 11). A notice that omits the required identification may be invalid.
• The offence did not involve the tree type stated in the notice (e.g., the tree was not actually registered). If the tree classification is disputed, the infringement notice may be challenged.
• The penalty amount was wrong (e.g., the notice claimed $1,600 for a public tree when the schedule says $1,200 for a public tree under item 1 or 2).
• The corporation multiplier was applied incorrectly (e.g., the recipient was an individual but the notice applied the corporate multiplier).
• The reminder notice cost was charged before the service of a valid reminder notice.

The regulation itself may be challenged on procedural grounds if it was made outside the scope of the power under the Magistrates Court Act. Such a challenge would be rare, as the regulation is a straightforward application of the existing framework.

The litigation history of the parent Urban Forest Act may inform interpretation, but that is not within the scope of this regulation.

Corporate multiplier traps. Section 8(2) imposes a penalty of five times the scheduled amount for a corporation. This multiplier applies even if the corporation is a small business or a not-for-profit entity. There is no distinction between different types of corporations. A body corporate (e.g., an owners corporation) that manages common property with protected trees could face a $8,000 infringement penalty for a single tree contravention. The regulation does not provide any reduction for that entity.

Fixed penalty not index-linked. The infringement penalties are expressed in fixed dollar amounts. Over time, inflation will reduce their real value. The maximum court penalties (in penalty units) are indexed under the Legislation Act. This creates a widening gap between the infringement penalty and the maximum court penalty. A rational actor may calculate that the cost of compliance (e.g., seeking a permit, delaying works) exceeds the ever-cheaper infringement penalty. This undermines the deterrent effect of the fixed penalty.

No discount for early payment or rectification. The regulation does not offer a reduced penalty for paying within a shorter period. Some ACT infringement notice schemes allow a 50% discount for early payment. This scheme does not. There is also no provision for a warning notice or a notice to remedy before a penalty is imposed. A person who inadvertently damages a tree will receive a full penalty, with no chance to remedy the situation.

Identification of authorised person by number. Section 9(b) allows an authorised person to be identified by a unique number rather than a name. This can make it difficult for the recipient to know who issued the notice, particularly if the number is not cross-referenced in any public register. It reduces personal accountability. The regulation does not require the number to be traceable to a real person through any mechanism.

Reminder notice cost is additive but not proportional. The $34 cost for serving a reminder notice is fixed. It is small for high penalty notices but large relative to the $160 penalty. For the $160 offence, a reminder notice adds 21% to the penalty. The recipient may pay the $160 promptly, but if they delay, they incur the $34 cost regardless of reasons.

No distinction based on tree value. The schedule sets penalties by tree type (registered, remnant, public, regulated) but does not differentiate based on the size, age, heritage value or ecological significance of the tree. A small regulated tree receives the same penalty as a significant one. This may be a deliberate simplification but leads to under-deterrence for high-value trees.

Infringement notice does not require proof of intention. The regulation does not specify any fault element. If the Urban Forest Act imposes strict liability for some offences, the infringement notice can be issued without requiring proof of intention or negligence. This shifts the risk of error to the recipient.

No mechanism for withdrawal of notice. The regulation does not provide a procedure for the administering authority to withdraw an infringement notice if it turns out to be erroneous. The recipient’s only option is to elect court proceedings, which is burdensome for small amounts.

For a person who receives an infringement notice under this regulation, the immediate compliance step is to decide whether to pay the penalty or elect to have the matter dealt with by a court. The regulation itself does not explain the procedure; it imports the process from the Magistrates Court Act. In practice, the notice will specify a due date (usually 28 days) and advise that payment within that period discharges liability. The person should read the notice carefully to verify that the offence provision matches the alleged conduct, that the tree type (if relevant) is correctly stated, and that the penalty amount matches the schedule.

If the person is a corporation, the penalty will be five times the amount shown on the notice. The person should confirm that the recipient entity is correctly identified and that the ACN is correct. If the ACN is missing or incorrect, the notice may be defective.

If the person believes the notice is wrong (e.g., they did not commit the offence, or the tree was not protected), they should not pay the penalty; instead, they should elect to have the matter heard in court. They should seek legal advice before doing so. The election must be made within the time specified in the notice. Failure to pay or to elect may result in enforcement action, including a reminder notice (costing an extra $34) and ultimately potential court proceedings.

For businesses that regularly deal with trees (landscapers, arborists, developers), the compliance strategy should be proactive: obtain all necessary approvals under the Urban Forest Act before undertaking any works that could affect a protected tree. The infringement penalty is a cost of non-compliance, but it is not the only cost: reputational harm, project delays and potential civil liability may follow. The regulation’s fixed penalty may be a cheap option for a one-off infraction, but repeated infractions may attract prosecution and higher penalties, as the regulation does not restrict the prosecutorial discretion.

For the administering authority, compliance means ensuring that all authorised persons are properly appointed and that notices contain the required information. The authority should allocate unique numbers consistently and maintain a register linking numbers to individuals. Reminder notices should only be served if the original notice is unpaid and not challenged, and the $34 cost should be added appropriately.

Ultimately, the regulation reduces the scope for negotiation. There is no formal avenue for disputing the penalty amount or tree classification without going to court. The best compliance approach for a person served with a notice is to assess whether the notice is valid and then either pay or contest. The simplicity of the system cuts both ways: it provides certainty but removes flexibility.