When a Civil or Criminal Offence imposes a Maximum Number of Penalty Units? How much is this? Who is it payable to? etc.

x Penalty Units = $y

When government legislation imposes a maximum penalty for a civil or criminal offence the maximum amount payable is generally specified in the form of a maximum number of Penalty Units.

The amount to apply per Penalty Unit to calculate the maximum Penalty payable varies amongst the Federal and State/Territory jurisdictions and is subject to change at any time, with some jurisdictions applying an automatic indexation mechanism.

Example

In NSW a reference to a maximum penalty of 5 penalty units means a maximum penalty of $550.

What are the current applicable rates?

As at the date of this FAQ the following amounts per Penalty Unit are detailed below:

ACT ➲ $160 per unit [individuals] / $810 per unit [corporations] (Since 8 Nov 2018);

Comm ➲ $222 per unit (Since 1 July 2020);

NSW ➲ $110 per unit (Since 1 September 1997);

NT ➲ $157 per unit (Since 1 July 2021);

Qld ➲ $137.85 per unit (Since 1 July 2021);

SA ➲ South Australia does not have a system of penalty units.

Instead, legislation either lists specific fine amounts or maximum "divisional penalties" which form a standard scale.

Vic ➲ $181.74 per unit (Since 1 July 2021);

Tas ➲ $173 per unit (Since 1 July 2021);

WA ➲ Varies (Penalty units are set for different categories of legislation. Traffic offences generally incur a penalty unit of A$50.

This Wikipedia link may be a useful as a quick resource to make an initial-check regarding whether any of the Penalty Unit rates may have changed.

Who is the Penalty Unit payable to?

Whilst is maybe assumed that the Penalty is payable directly to the person or party (if applicable) who has endured or been the victim of the offence this is not generally the case.

A Penalty is generally payable to the relevant government treasury.

In NSW this is the NSW Office of State Revenue.

Who can commence proceedings for the imposition of a civil or criminal penalty?

Generally speaking the proceedings for the imposition of a civil or criminal penalty are made by the relevant Minister or an authorised official rather than an applicant in a civil matter.

Example: Residential Tenancies Act 1987 (WA)

The Commissioner for Fair Trading is the only person who may prosecute a party for an offence committed under s.9 of the Residential Tenancies Act 1987 (WA).

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW) and Penalties

RESIDENTIAL TENANCIES ACT 2010 - SECT 203

Penalty notices

203 Penalty notices

(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.

(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.

(3) The Fines Act 1996 applies to a penalty notice issued under this section.Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.

(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).

(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

(6) In this section,
"authorised officer" means a person authorised in writing by the Secretary as an authorised officer for the purposes of this section.

Can a Tribunal decide the penalty payable for the civil penalty?

Generally speaking the imposition of penalties for offences triggering civil penalty provisions (not specifically granted by the Tribunal's enabling legislation) are matters for a Court.

Example: Civil Offences against the Residential Tenancies Act 2005 (NSW)

202   Nature of proceedings for offences

(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court (emphasis added).

…

(3)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is 50 penalty units or such other amount as may be prescribed by the regulations.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.