Today’s correspondent asks me to:
… make some sense of the following.
Section 100 of the Rural Fires Act ‘Offences’ says:
(1) A person who, without lawful authority:
(a) sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or
(b) being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority,
is guilty of an offence.
Maximum penalty: 1,000 penalty units or imprisonment for 5 years, or both.
The regulations state for section 100 (1 or 2) $2200
There is a lot of difference between the two penalties one under the act would equate to $110000 whereas the other is a much lesser amount.
Is the Act the guidance in court action and the regulations for officers of department when levying fines?
The short answer is ‘yes; the Act [is] the guidance in court action and the regulations for officers of department when levying fines’ but there’s more to it than that.
The separation of powers
Fundamental to the Australian (and many if not most legal systems) is the idea of the separation of powers between the legislature (the Parliaments), the executive (the Ministers and various government departments) and the judicial (the courts) arms of government. In simple terms the legislature writes the law, in this case the Rural Fires Act 1997 (NSW). The executive arm of government, that is the Governor, the Minister for Police and Emergency Services and the Rural Fire Service have to put that law into effect that is they have to do the things the Act tells them to do, enforce the penalty provisions (along with police), put in place the systems to grant permits or permissions, operate the Rural Fire Service etc. Because the parliament can’t foresee everything that needs to be done it has delegated to the Governor the power to make regulations to deal with various issues that need to be dealt with under the Act (Rural Fires Act 1997 (NSW) s 135). Regulations are called ‘delegated legislation’ as they are a law, but they are not made by Parliament but by the person or agency delegated by Parliament to make those laws. Regulations can only cover the subject matter authorised by the Act, must be consistent with the Act and can be set aside by Parliament if the Parliament so chooses. The delegated legislation that is relevant here is the Rural Fires Regulation 2013 (NSW).
The judicial arm of government, the courts, get involved when there is a dispute. When someone thinks a government department has not complied with the law for example it has failed to do something that the law says it must do, that it has issued or refused to issue a permit on irrelevant or improper grounds, that it has caused loss or damage that is not authorised by the law or, relevantly, where the department alleges that some person has committed a criminal offence.
Deciding whether or not someone is guilty of a crime and the punishment they are to receive is a role reserved exclusively to the courts. Re Tracey; Ex parte Ryan  HCA 12 Deane J said:
“The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power… Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III [of the Australian Constitution] court acting as such, that is to say, acting judicially.
(Having said that Parliaments can by executive order provide that a person is to be deprived of their liberty which is why the Australian government can lock people up in indefinite immigration detention – ‘the power is not punitive in nature, and does not involve an invalid attempt to confer on the Executive a power to punish people who, being in Australia, are subject to, and entitled to the protection of, the law’ (Al-Kateb v Godwin  HCA 37,  Gleeson CJ). A state government could pass a law ordering that you be locked up without judicial review (Kable v Director of Public Prosecutions (NSW)  HCA 24,  (Brennan CJ) &  (Gummow J)) but that is not the same as imposing a punishment for a crime).
So how do infringement notices work?
Infringement notices (‘on the spot fines’) appear to be contrary to this rule because it looks like the executive (the police or some other authorised person) is determining guilt and imposing a punishment, but that is not the case. Where an authorised officer issues an infringement notice, he or she is making an allegation of guilt. The person who receives the notice may choose to pay the prescribed fine and that is the end of the matter or they may choose to challenge the allegation on the basis that they are ‘not guilty’. In that case the matter will be heard in a magistrate’s court in its criminal jurisdiction with the burden on the prosecution to prove the case ‘beyond reasonable doubt’. (For further discussion on infringement notices and why they are not a criminal conviction, see Traffic infringements and paramedic registration (October 10, 2018)).
Because infringement notices are administrative and not judicial, there is no discretion given to the enforcement officer. He or she has a discretion to issue the notice, or not, but the penalty is fixed. An officer cannot decide the value of the penalty, that is set out in law, and that is the long way around to my correspondent’s question.
The Rural Fires Act and Regulations
The Rural Fires Act 1997 (NSW) s 131 provides that penalty notices can be issued by authorised officers where the Regulations say that an offence is a penalty notice offence. The fine to be imposed is the amount ‘prescribed’. (Wherever the word ‘prescribed’ appears in an Act it means one has to look to the regulations to see what has been ‘prescribed’.)
The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 sets out what are the penalty notice offences. A breach of s 100(1) is a penalty notice offence. The prescribed penalty is $2200.
What that means is that if an authorised officer believes that a person has committed an offence contrary to s 100(1) that officer can issue a penalty notice that will impose a fine of $2200. The officer can decide to issue the notice or not, but if he or she decides to issue the notice the fine is set. The authorised officer cannot set a higher or lower fine, the fine is $2200.
If the matter is determined in a court, then the penalty notice provisions have no application. The matter may end up in court if the person who receives a penalty notice elects to have the matter dealt with in court because he or she wants to argue that they are not guilty of the offence or they believe that the circumstances warrant a lesser penalty. Equally it could be before a court if the authorised officer elects not to issue an infringement notice and instead proceeds by court attendance notice. He or she may do that if they think the offending, or the offender’s history, is so serious that the fine of $2200 is not sufficient or they think a court may consider sending the person to gaol.
A magistrate who hears the matter and who is satisfied that the accused is guilty of the offence charged can impose any penalty provided for in the Crimes (Sentencing Procedure) Act 1999 (NSW) to the maximum of ‘1,000 penalty units or imprisonment for 5 years, or both.’ A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum fine is $110,000. A judge or magistrate has discretion that an authorised officer does not.
The provisions in an Act that define a maximum penalty do provide guidance to a court by helping the court determine where in the scale of offences from most minor to most serious this offence fits. Judges have other options too like good behaviour bonds, finding an offence proved but taking no action, community service etc. The ‘maximum penalty’ is, as my correspondent says ‘guidance [for the judge or magistrate] in court action’.
The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 provide that an authorised officer may issue a penalty notice and the value of that notice. They are only relevant to ‘officers of department when levying fines’ and set out what the fine is. The authorising officer has no discretion as to the amount of the fine – issue a $2200 fine or don’t.
What would happen if an agency gave a discretionary discount, would it necessarily follow that the notice was invalid and they agency failed to maintain the separation of power.
The point is that they don’t have that discretion. If they write the wrong amount on the infringement notice then someone would notice when the fine was paid and the notice would have to be reissued or withdrawn. There is no discretion on the value of the penalty.