A life coach and legal rights advocate claims only a court can lawfully issue fines and penalties.
The claim is mostly false. Experts told AAP FactCheck government agencies have the power to – and regularly do – issue administrative penalties, while courts issue criminal and civil penalties that can include monetary fines.
The claim was made by Mike Palmer, founder of Know Your Rights Group, in a Facebook video (archived here) on December 1, while discussing the new Director ID scheme.
The scheme is being implemented by the Australian Business Registers Services (ABRS), a unit within the Australian Taxation Office (ATO). It requires directors of companies, registered Australian bodies, registered foreign companies and Aboriginal and Torres Strait Islander corporations to apply for a unique identification number, with the aim of preventing false or fraudulent director identities.
In the video, Mr Palmer questions how an agency has the right to “force people to hand over their own private, personal information without their consent”.
He adds: “And furthermore, of course, where does an incomplete agency get the power or authority to issue fines or penalties to people, or even threaten to issue fines or penalties to people, when only a court has the lawful power to do that,” (video mark 2min).
Mr Palmer says under “Section 8 Subsection 12 of the Imperial Acts Application Act, all fines and forfeitures before conviction are illegal and void”.
He has made similar comments previously, including in this video which features on the “Fines and Infringements, and the law” section of his website.
“Every single infringement notice that has ever been issued is actually illegal and void because it hasn’t been to court,” Mr Palmer says (video mark 30sec).
The Australian Securities and Investments Commission (ASIC) told AAP FactCheck in an email that Director ID fines were “summary, strict liability prosecutions which will be dealt with in the lower (Magistrates’) courts”.
However, ASIC and many other government agencies such as the ATO have the power to issue administrative penalties. Experts say people can choose not to pay the penalties and challenge them in court, but this can result in harsher fines and punishment.
Luke Beck, a professor of constitutional law at Monash University, told AAP FactCheck there were many federal, state and territory laws authorising regulatory agencies to issue infringement notices which could result in administrative penalties.
“Infringement notices for minor breaches of road rules are probably the most well-known examples,” he said in an email.
“Technically, an infringement notice is different to a fine. A fine is a punishment imposed after a person is found guilty of breaking a law. An infringement notice is a payment a person makes to avoid being prosecuted for breaking the law.”
Prof Beck said the Attorney-General’s Department website explained “a person who is given an infringement notice can choose to pay the amount specified in the notice as an alternative to court proceedings. If the person does not choose to pay the amount, court proceedings can be brought against them in relation to the alleged contravention”.
Prof Beck added: “So technically you don’t have to pay an infringement notice. But if you don’t, you’ll end up being prosecuted and the outcome if you’re found guilty is likely to be worse than if you had just paid the infringement notice.”
John Bevacqua, an associate professor in business law and taxation also at Monash University, agreed that many statutory authorities were empowered to issue administrative penalties.
“By definition, administrative penalties do not require court involvement,” Dr Bevacqua told AAP FactCheck via email.
He echoed Prof Beck in saying a penalty notice recipient could choose to pay the penalty or challenge it in court.
“However, it should be noted that typically, the assessed penalty in the infringement notice is lower than what a court would impose … encouraging people who have clearly not complied with the requirements of the legislative provision to take the matter to court, is unwise,” Dr Bevacqua said.
Mr Palmer cites Section 8 Subsection 12 of the Imperial Acts Application Act as evidence “fines and forfeitures” issued before a conviction are invalid.
Imperial Acts Application Acts were passed in Australian states and territories to preserve ancient UK laws, see here, here, here and here for examples.
Scientia Professor George Williams, a constitutional law expert at the UNSW Sydney, said it appeared the section Mr Palmer quoted was referencing the English Bill of Rights 1688.
The bill states “all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegal and void”.
“Laws of this kind were received into Australia,” Prof Williams told AAP FactCheck in an email.
“However, they can be overridden by subsequent legislation. This has occurred in this case with many subsequent laws permitting agencies to levy fines, whether or not the fine was issued by court. As a result, the reference to this clause does not assist people to avoid a fine.”
Prof Bevacqua also noted Section 8 Subsection 12 was from the Victorian Imperial Acts Application Act 1980.
“… these are a series (of) STATE-based acts (ie NOT Commonwealth Acts). So there is a jurisdictional issue in that they aren’t binding on the Commonwealth or Commonwealth instrumentalities like the ATO and ASIC,” he said.
AAP FactCheck has previously addressed numerous claims made by Know Your Rights (see here, here, here and here).
The Verdict
The claim that only a court has lawful power to issue fines and/or penalties is mostly false. Experts told AAP FactCheck that while only a court can issue a fine, many government regulatory agencies have the power to issue administrative penalties for the likes of parking and tax infringements. The recipient may choose to challenge the penalty in court, but the agencies have the legal right to issue them.
Mostly False – The claim is mostly inaccurate but includes minor elements of truth.
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