A person who has been given an infringement notice (on-the-spot fine) has the right to have the matter dealt with by a court instead of paying the fine (s22 State Penalties Enforcement Act 1999). This page contains information to help you decide whether to pay the fine or have the matter decided in a Magistrates Court.
You should obtain legal advice before electing to have the matter decided in a Magistrates Court or if you have questions about the information on this page.
Council cannot give legal advice.
When Council issues an infringement notice for an alleged offence it is for a fixed amount. A person who pays the fine (whether all at once or by instalments) cannot be prosecuted in a court for the alleged offence (s25 State Penalties Enforcement Act 1999). This means the matter of the alleged offence is finalised.
No conviction is recorded against a person’s name when they pay an infringement notice fine.
You have the right to elect to have this matter dealt with by a Magistrates Court.
To elect a court hearing, you will need to complete:
Council must receive the court election within 28 days from the notice issue date.
Electing to have an infringement notice decided by a court is not an internal review by Council.
When a person elects to have the matter of the alleged offence decided by a court, a proceeding for the alleged offence may be started in the Magistrates Court under the Justices Act 1886. A complaint and summons are issued and filed in the registry of the Magistrates Court. The making of the complaint commences a proceeding against the person for the alleged offence. A proceeding is a criminal prosecution for a simple offence.
A person cannot change their mind and decide to pay an infringement notice fine once a prosecution is started. The prosecution will typically end in one of three ways:
- The person pleads not guilty, a hearing is conducted and they are found guilty. The person is then sentenced by the court for committing the offence.
- The person pleads guilty and the court sentences the person for committing the offence.
- The person pleads not guilty, a hearing is conducted and they are found not guilty. The person is then discharged of the alleged offence and the matter is finished.
Criminal conviction
A person who pleads guilty or is found guilty by the court of the offence after a hearing may have a criminal conviction recorded against them.
This may impact the ability to travel internationally or hold certain jobs. It is recommended you seek legal advice before deciding to elect to have the matter decided by a Magistrates Court if you are worried about how a criminal conviction may affect your circumstances.
Penalty
The court determines the penalty to impose on a person who pleads guilty or is found guilty by the court of the offence after a hearing. The court has the power to impose a different fine than what was in the infringement notice.
A court can impose a fine up to the maximum penalty, which may be many times the infringement notice fine. For example, an infringement notice fine for non-compliance with an Enforcement Notice under s168 of the Planning Act 2016 is (as at 1 July 2023) is between $774 and $3,096 for an individual and between $3870 and $15,489 for a corporation.
The maximum penalty that can be imposed in the Magistrates Court for the same offence is (as at 1 July 2023) $696,600 for an individual and $3,483,000 for a corporation.
Costs
When a person pleads guilty or is found guilty of the offence by the court after a hearing, Council will normally seek a court order for the person to pay the professional (legal) and investigation costs it has incurred.
An order for professional (legal) and investigation costs is in addition to any penalty the court imposes.
Other court orders
Some legislation gives the Magistrates Court the power to make orders requiring a person to take stated actions. This may include stopping or demolishing work or restoring property to what it was before the offence. This is also in addition to any penalty imposed by the court and it is another, separate offence not to comply with the requirements of the order.
Strict liability
Infringement notice offences are often ‘strict liability’, meaning even if you did not mean to commit an offence, simply doing the act or authorising someone else to do the act is enough to be found guilty of the offence.
For example, where a landowner hires someone to come and clear vegetation or build a large shed on their property without a development permit when one is required, both the landowner and the person who carried out the work is liable for the offence. Both are treated as a ‘principal offender’.
It is not a defence to an alleged offence if a person did not know they were committing an offence when they did the act. Ignorance of the law is not a defence.
Attending court and the hearing
Electing to have a matter decided by the Magistrates Court will normally involve at least 2 court appearances where either the person or their lawyer will need to appear in person.
Courts are very busy, meaning you may be at court all day and it is likely a hearing date will be several months away.
On the day of the hearing, any admissions a person made previously about doing the act may be admitted into evidence against them. If the offence is a strict liability offence, an admission by the person that they did the act and evidence that the act happened (eg: a photograph) may be all that is needed for the person to be found guilty of the offence.