Posted on November 22, 2024 by Jennifer Coburn 3

Penalty Notices Q&A #3

Welcome to our third and final article in this series about penalty notices. Let’s take a look at some of the most recent questions we’ve been asked:

What does it mean to exercise discretion when issuing penalty notices?

This is when an issuing officer is in a position to issue a penalty notice but considers other factors, such as mitigating circumstances or personal circumstances of an offender, when deciding whether to do so. Subject to an agency’s enforcement and/or compliance policy or guidelines, an issuing officer generally has the discretion as to whether or not a penalty notice will be issued. The issuing officer exercises their discretion within their agency’s enforcement and compliance framework, by considering any matters listed in the relevant policy or guidelines and following any prescribed protocols.

What happens if I issue a penalty notice and the person seeks a review or makes representations?

A person who has been issued with a penalty notice is entitled to make representations and/or seek a review of the fine. This often occurs where a person wishes to give some explanation as to the circumstances surrounding the issuing of the fine or believes there has been an error.

These representations are usually directed to Revenue NSW, who will either conduct the review or refer the request to the issuing agency for consideration (referral back to the agency may occur for some types of offences such as those for development approval, building and environment offences). The fine is put on hold while the review takes place. At the conclusion of the review, Revenue NSW will advise the person that either the fine is to stand, that they will be issued with a caution instead of the fine, or that the fine has been cancelled and no other action will be taken.

Is payment of a penalty notice an admission of guilt?

Penalty notices operate as allegations of contraventions of the law that a person can choose to pay or elect to have dealt with by a court. Payment of the fine is not the same as admitting guilt in court proceedings and the allegation the subject of the penalty notice will not be recorded on a person’s criminal record just because the fine is paid (although it will be recorded on a person’s fine record, and possibly driving record if relevant).  Similarly, section 22A(2) Fines Act 1996 provides that payment under a penalty notice is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

Can a person still court elect a penalty notice, even if they have already paid it?

Pursuant to s23A(2) Fines Act 1996, a person may elect to have a penalty notice dealt with by a court even if the whole or part of the amount payable under the penalty notice has been paid. If the person has paid the whole amount payable under the penalty notice and makes a court election, they must do so no later than 90 days after the penalty notice was issued (s23A(2A)).

What is an annulment application?

If a person received a fine and elected to have it dealt with by a court, and was convicted in their absence, they may make an application to have the court’s decision annulled (cancelled) pursuant to s4 Crimes (Appeal and Review) Act 2001. The person completes and lodges a form with the local court and the application is set down for hearing. If the court grants the annulment application, a re-hearing of the original evidence will occur either immediately or at a later date and a new decision will be made. Some common reasons for seeking an annulment were that the person had compelling reasons for not being able to attend court or that they have fresh evidence as to their innocence that was not available at the time the matter was first before the court.

Thanks for your company in our series of articles! We hope you found them useful. If you have any questions or would like to discuss anything related to penalty notices, please contact Jennifer Coburn on 8235 9712.