Throughout the HS Regulations, there are fines relating to breaches of the regulations. These fines are found at the end of any regulation to which they apply.
For example, regulation 2.4(1) provides that a PCBU must label a stationary container or process container holding a hazardous substance. Regulation 2.4(3) provides that:
A person who contravenes this regulation commits an offence and is liable on conviction:
- For an individual, to a fine not exceeding $6,000:
- For any other person, to a fine not exceeding $30,000.
What are not specified in the HS Regulations are the infringement offences and associated fees. These are found in the Health and Safety at Work (Infringement Offences and Fees) Regulations 2016, which lists each specific hazardous substance regulation that has an infringement fee associated with it.
Taking the same example above, this regulation has infringement fees for failing to label a stationary tank or process container. These fees are $1,000 for an individual and $6,000 for an entity.
Not every regulation in the HS Regulations has an associated infringement fee. Generally infringement fees are linked to actions or omissions that involve straightforward issues of fact. That is, any offence is generally clearly defined and without ambiguity, such that an instant fine can be applied. An infringement offence is a proportionate response to offending, which avoids court proceedings. No conviction or criminal record may result from an infringement offence.
If an inspector issues an infringement notice for an offence and an infringement fee is paid, we cannot then prosecute through the courts. That is, the provisions of ‘double jeopardy’ apply.
A fine specified in a regulation is the penalty that may be imposed following the laying of charges for an offence against that regulation and subsequent court proceedings. A charge may also be laid under HSWA if the offence relates to a duty specified in HSWA. A prosecution, if proven, leads to a criminal conviction.
For example, regulation 10.34 places a duty on a PCBU with management or control of a hazardous substance location where class 2.1.1, 2.1.2 or 3.1 substances are present to ensure that the location has a current compliance certificate. There are no infringement fees associated with this regulation listed in the Health and Safety at Work (Infringement Offences and Fees) Regulations 2016, however there are fines listed in the HS Regulations. If an offence is committed and a prosecution taken against this regulation, then the PCBU is liable on conviction to a fine not exceeding $10,000 (for an individual) or a fine not exceeding $50,000 (for any other person).
If it is determined that failing to have a compliance certificate for the location is a breach of the PCBU’s primary duty of care, then a prosecution may be taken under clause 36 of the Act as an alternative to a prosecuting under regulation 10.34. In this case the person who commits the offence is liable on conviction to the penalties set out in clauses 47, 48 or 49 of the Act.
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