Posted on August 16, 2024 by Jennifer Coburn 9

Penalty Notices Q & A #1

Introduction

This is the first in a series of posts about penalty notices and fines. Most compliance officers have the power to issue penalty infringement notices (PINs) under a number of different pieces of legislation. As any compliance officer will tell you, it’s not just a matter of filling out a form and forgetting about it – there are many things to be aware of and it’s important to get them right. Here are some common questions that we get asked, with some answers that give an overview of a few key areas.

Q1 – When can I issue a PIN?

A – If you have evidence that an offence has been committed and it is an offence for which a PIN can be issued under the appropriate legislation (see s21 Fines Act 1996) then you might be able to issue a PIN, but first you should consult your organisation’s compliance or enforcement policy, or perhaps even prosecution guidelines, which will set out the circumstances in which you could exercise your discretion and issue a PIN. Even though the evidentiary requirements to issue a PIN are not as rigorous as for a prosecution, it is important to ensure that you have evidence to prove each element of the PIN offence, in case a court election is made.

Q2 – Can I fine someone a higher amount if they are a repeat offender?

A – No. Fine amounts are prescribed in the relevant legislation.

Q3 – What if I make a mistake when issuing the PIN?

A – You can cancel the PIN and reissue it. Depending on whether you are using a handwritten or electronic form, you can also ask your contact officer at Service NSW (former Revenue NSW) for assistance.

Q4 – What if the person refuses to pay the fine amount?

A – The Fines Act 1996 (NSW) sets out the procedure for enforcement of amounts payable under a penalty notice. It is a process conducted by Service NSW, not the issuing officer.

Q5 – I issued a PIN to someone and they have elected to have the matter dealt with in Court. What now?

A – Every person issued with a PIN has the right to elect to have the matter heard in Court, instead of paying the fine (see s35 Fines Act 1996). Sometimes a person will dispute their liability for the alleged offence, in which case the issuing authority will need to decide whether it wants to commence a prosecution, or sometimes the person will admit their conduct but wish to express an explanation or grievance about the matter. In the latter case, it won’t be necessary for the issuing authority to prove the elements of the offence, but they will have to prepare for sentencing. If you issue a PIN and the person elects to have the matter heard by a Court, the issuing authority will receive notification either advising of the new listing date or of the need to prepare a court attendance notice (CAN). Just because a person elects to have a PIN heard by a Court doesn’t mean that the issuing authority must proceed to prosecution – it still has the discretion to not proceed and withdraw the fine (and if the issuing authority receives notice that proceedings have already been commenced, those can be withdrawn but we suggest legal advice on that process).

Q6 – If I have to issue a Court Attendance Notice following a court election, does it have to be for the same offence that I fined the person for?

A – Section 37 Fines Act 1996 states that if a person duly elects to have a matter dealt with by a Court, proceedings against the person may be taken as if the penalty notice had not been issued. While this means that an issuing authority may have the option to commence prosecution proceedings against the person for different offences, it is best practice to issue the CAN for the same offence as that which was the subject of the court elected penalty notice and there would rarely be circumstances in which you would consider issuing a CAN for any offence other than that for which the court elected fine was issued. A court election shouldn’t be seen as an opportunity to reopen an investigation and you need to keep in mind the principles of good governance and fairness. If you have questions about evidence before issuing a CAN, its best to seek legal advice.

Q7 – Can I give a warning or caution instead of issuing a PIN?

A – Yes. A compliance officer has the discretion as to what form of regulatory action is appropriate. Using your organisation’s compliance and enforcement policies as a guide, you can consider matters such as seriousness of the offence, harm, previous offences etc when deciding what form of action to take. The Attorney General’s Caution Guidelines under the Fines Act are also very helpful when deciding whether to issue a caution instead of a PIN and set out some matters for consideration.

Q8 – The offence I’m investigating occurred a long time ago. Can I still issue a PIN?

A- You need to be aware of the limitation period that applies to the offence you’re considering issuing a PIN for. Commonly in environmental offences, the limitation period is 2 years from either the date of the offence or an investigation/authorised officer becoming aware of the offence, whichever is sooner. If you issue a PIN too close to the statute barred date, then by the time the payment and reminder periods have passed, the issuing authority might not be able to issue a court attendance notice if a court election is made. It’s good practice to issue a PIN with sufficient time remaining before the limitation period expires.

In summary, there’s a lot to know about fines and penalty notices! The power to issue a penalty notice is a significant one, and an issuing officer has a number of things they need to consider before taking action.

If you have any questions about penalty notices or enforcement matters, please contact Jennifer Coburn on 8235 9712.