Increasing The Value - Penalty Unit Amount

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Published by Preston Law on 31/05/2023

From 1 July 2023, the value of the penalty unit amount will increase from $143.75 to $154.80.

Section 5A(1) of the Penalties and Sentences Act 1992 (“the Act”) allows a regulation to prescribe the monetary value for a penalty unit for a ‘penalty infringement notice’ (“PIN”) offence under section 5(1)(a)(i), (c)(i) and (e)(i), other than for those ‘prescribed local governments’ listed in Schedule 2 of the Penalties and Sentences Regulation 2015 (“the Regulation”) whose penalty unit value remains at $75.

The Penalties and Sentences (Penalty Unit Value) Amendment Regulation 2023 (“the Amendment Regulation”) sets the new value of the penalty unit amount under section 3 of the Regulation. This means that the increased penalty unit amount of $154.80 per penalty unit will apply from 1 July 2023 when issuing a PIN for an offence.

Maximum Penalty vs PIN Amount

Each offence that is created, either through Council’s Local Laws or State legislation, provides a ‘maximum penalty’ for the offence. When that maximum penalty is described as a specified number of ‘penalty units’, this means the maximum amount that a Court can impose by way of a fine if the person is successfully prosecuted, regardless of whether a conviction is recorded or not (section 41, Acts Interpretation Act 1954).

The PIN amount, on the other hand, is the amount set for specific offences under the State Penalties Enforcement Regulation 2014 (“SPE Reg”) for which an authorised person can issue an “on-the-spot” fine. The PIN amount is usually substantially lower than the maximum penalty amount that a Court may impose.  For example, the maximum penalty for undertaking an unlawful use of premises under section 165 of the Planning Act 2016 is 4,500 penalty units, but the PIN amount is limited to 10 penalty units, as provided for in Schedule 1 of the SPE Reg.

For local law offences, the PIN amount is contained in section 7 of the SPE Reg (instead of Schedule 1) and is based on the maximum penalty for the offence. For example, if the maximum penalty for the offence is 20 penalty units, the PIN amount would be issued for the value equal to 2 penalty units, which after 1 July 2023 will be $309.

If the specific offence is not listed in Schedule 1 of the SPE Reg and it is not a local law offence, it means that a PIN cannot be issued by an authorised person, although the local government can prosecute the offence in the Magistrates Court. For example, section 194 of the Animal Management (Cats and Dogs) Act 2008 is an offence against a person requiring reasonable steps to be taken to ensure that a dog does not attack or cause fear to a person or another animal. Section 194 is not listed in Schedule 1 of the SPE Reg and therefore Councils cannot issue a PIN for the offence. They can, however, choose to prosecute the owner or responsible person for the dog if sufficient evidence was obtained.

What does this mean for local governments?

Any PIN for an offence that is issued on or after 1 July 2023 will need to reflect the increase in the penalty unit amount. For example, if a PIN is issued under section 165 of the Planning Act 2016 for unlawful use of premises, the maximum penalty units that can be imposed pursuant to the SPE Reg is 10 penalty units for an individual. This means that instead of the current PIN amount, which is $1,437 (rounded down to the nearest dollar) for the offence, the PIN amount from 1 July 2023 will be $1,548.

In addition to adjusting the increase in the value of the PINs issued by authorised persons from 1 July 2023, local governments will also need to review and update their current templates where maximum penalty unit amounts are provided, such as Show Cause Notices, Enforcement Notices and Compliance Notices as the penalty unit amount is usually provided within those statutory notices.

Our team at Preston Law regularly assist our local government clients in advising on the sufficiency of evidence to issue PINs as well as drafting PIN templates.  If you have any queries or would like to know how we may be able to assist, please contact our legal team.

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