Introduction to infringement notices
An infringement notice is a notice issued by a regulatory agency setting out the particulars of an alleged contravention of an offence or civil penalty provision. A person who is given an infringement notice can choose to pay the amount specified in the notice as an alternative to court proceedings. If the person does not choose to pay the amount, court proceedings can be brought against them in relation to the alleged contravention. Infringement notices are generally issued for minor matters where a high volume of contraventions are expected, such as failing to comply with reporting obligations, failing to respond to a notice or failing to provide information. They provide an effective administrative mechanism to regulate these matters.
Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) provides a framework for the use of infringement notices. It provides that infringement notices may be issued by an infringement officer in relation to a breach of a strict liability offence (which does not require proof of fault and provides a defence of an honest and reasonable mistake of fact) or a breach of a civil penalty provision. The amount payable in an infringement notice is significantly lower than the penalty that a court could impose in relation to the alleged contravention. This ensures that infringement notices, which do not reflect a court sanction or constitute an admission of guilt, remain a subordinate but effective remedy. Infringement notices are particularly well-suited as a means of managing low-level offences where a high volume of uncontested contraventions is likely.
As the substantive penalty for a contravention of a civil penalty or offence provision may only be determined by a court, it is important that the infringement notice does not purport to operate as more than an allegation of contravention which the recipient may choose to contest in court. It must be clear that the payment of the infringement notice is not an admission of guilt.
Legal proceedings cannot be pursued if an infringement notice has been issued and the period of time provided for an individual to dispose of the matter has not extinguished, or an individual has disposed of the matter by paying the amount attached to the infringement notice.
When are infringement notices appropriate under the Regulatory Powers Act?
Infringement notices may be issued for civil penalty provisions and strict liability offences nominated in the triggering provisions of an Act. For both civil penalty provisions and strict liability offences it may be appropriate for an infringement notice to apply to those contraventions that can be determined by automatic operation of the law or where an assessment of a contravention can easily be made based on straightforward factual questions.
In relation to offences, limiting the use of infringement notices to strict liability offences ensures that infringement officers are not required to weigh evidence or draw conclusions about a person’s guilt or liability.
It is not appropriate for infringement notices to be used for complex provisions or provisions with significant penalties. It is also not appropriate for notices to be used for ancillary offences in the Crimes Act 1914 (the Crimes Act) and the Criminal Code 1995 due to the complexity of some of the issues these offences raise. Examples of ancillary offences include attempt, incitement or conspiracy. This ensures that the use of infringement notices is limited to straightforward contraventions that do not require complex assessment of matters better suited to judicial determination.
What an infringement notice should include
Section 104 of the Regulatory Powers Act outlines the matters that must be included in an infringement notice. Amongst other things, section 104 provides that an infringement notice is required to state that the person may choose not to pay the penalty and notify them that, if they choose not to pay, proceedings seeking a civil penalty order may be brought against them in a court, or if in relation to an offence, they may be prosecuted in a court for the alleged offence.
The Regulatory Powers Act prescribes the amount to be specified for payment of an infringement notice. Because an infringement notice is merely an allegation of contravention, the default maximum penalty is the lesser of: 12 penalty units for an individual and 60 penalty units for a body corporate, or one-fifth of the maximum penalty a court could impose for the contravention.
Section 103 of the Regulatory Powers Act provides that a separate infringement notice must be issued for each alleged contravention, unless the contravention relates to an action that should have been completed before a particular time and ongoing failure to complete the action constitutes continuing offences or continuing contraventions of civil penalty provisions. Section 93 of the Regulatory Powers Act provides for continuing contraventions of civil penalty provisions while subsection 4K(2) of the Crimes Act provides for continuing offences.
Using infringement notices alongside other regimes
There may be circumstances where an infringement notice regime is integrated with another regulatory regime, such as disciplinary action. If this is the case, an infringement notice regime should not be integrated with a disciplinary action, or other regulatory regime, in a way that would interfere with the operation of the infringement notice. For example, a regulatory regime that provides for infringement notices to be listed on a public website until they are paid may compel a recipient to pay the notice to avoid the further consequence of negative publicity. This would mean that the effect of the infringement notice would go beyond an allegation of a contravention.
Sections 105 and 106 of the Regulatory Powers Act provide further information on the options available once an infringement notice is issued, including extensions of time to pay and withdrawal of infringement notices.