Posted on September 5, 2024 by Jennifer Coburn 4

Penalty Notices Q& A #2

Penalty notices Q&A #2

Welcome back to another discussion about penalty notices, this time focussing on some questions that deal with delegations and issuing multiple penalty notices, and some technical questions.

How do I know if I have the power to issue a penalty notice?

An agency’s instrument of delegation will usually list the classes of officers authorised to issue penalty notices under various Acts and Regulations. You can check with your agency’s delegations officer and ask to see a copy of the relevant instrument that deals with matters like investigations and enforcement (sometimes delegations instruments deal with separate things, like financial delegations, so there can be multiple instruments).

Can I issue multiple penalty notices in relation to the one set of circumstances?

This can be a tricky one to answer. Technically, if more than one offence arises out of the same set of circumstances (for example, an offence of failing to carry out development in accordance with consent under the Environmental Planning and Assessment Act 1979 and an offence of water pollution under the Protection of the Environment Operations Act 1997 ) then an officer could issue a fine for each of those separate offences. However, your agency may have prosecution or compliance guidelines governing the issue of fines, and these might set out a position that your agency takes in these circumstances. Because a penalty notice is intended for minor, one off offences, it can sometimes be the case that considering multiple fines suggests a larger, more serious offence has occurred. In that case, a fine for a more serious offence (if applicable) or a prosecution might be considered.

If I issue a penalty notice to a person, how does that effect future compliance action against them?

Once a penalty notice has been issued to a person (or a company), an agency will keep a record of this and will know what a person’s compliance history looks like. If a person commits the same or another offence again, an agency still has the usual range of regulatory options open to it (questions of evidence aside for now). They may choose to issue a second penalty notice for the relevant offence, or escalate to a prosecution, in accordance with any applicable compliance and enforcement policy. An agency has discretion as to what action it will take, so it will consider both the facts and circumstances of any alleged offence as well as the person’s prior compliance history, when deciding what action to take.

Legislation changes all the time. How does this impact my ability to issue a penalty notice?

It’s important to stay up to date with changes to the law as much as possible, but changes like the introduction of new offence provisions or the repeal of existing offence provisions (especially minor ones) may happen without you immediately becoming aware of them. For significant legislative change, like the recent changes to POEO Act penalties, there will often be engagement with government and community so that everyone is ready when the new provisions commence. For new offences that are penalty notice offences, you may be able to issue fines but for repealed offences you would no longer have the power to issue fines for those offences. It’s best to seek legal advice if you think the law you’re seeking to enforce might have changed.

What are law part codes?

Each offence in legislation in NSW has a unique number, or code, assigned to it. The law part code is linked to the long and short description of the offence and the penalties involved. The database of lawcodes is maintained by the Judicial Commission of NSW.

What is a fixed penalty handbook?

Revenue NSW maintain a series of documents called Fixed Penalty Handbooks, which are unique to their commercial clients. The Handbooks reference the relevant legislation administered by that agency and list the offence and penalty details for each offence. An officer can usually access their relevant handbook by logging into Revenue NSW’s Business Partner portal. The handbooks are usually updated very quickly following legislative changes and can be important reference tools for compliance officers.

We’ll be concluding our penalty notice series with a third article, so please keep an eye out for that coming soon. If you have any questions about these topics in the meantime, please contact Jennifer Coburn on 8235 9712.