Why have the Asbestos Regulations been amended?
Due to the significant public health risks associated with the mishandling of asbestos cement materials, local governments advocated for higher penalties and the ability to issue infringement notices as an immediate measure to deter unlawful conduct and encourage compliance with the
Health (Asbestos) Regulations 1992 (external site) ('the Regulations’).
As such, the Regulations were amended to increase the penalties for offences under the Regulations and to enable local governments to issue infringement notices for specified offences. The penalties are to be increased to provide that a person who commits an offence against the Regulations is liable upon conviction to:
- a penalty of not more than $10,000, and
- if the offence is of a continuing nature, to an additional daily penalty of not more than $1,000.
A body corporate may be fined up to five times this amount under section 40(5) of the
Sentencing Act 1995 (external site).
The amendments came into effect on the 24 January 2017.
Why aren't the regulations being repealed and replaced with new regulations?
Although the Regulations will be repealed as part of the broader implementation of the Public Health Act 2016 this will not occur until the final stages of implementation, which is still approximately 3 to 5 years away. Therefore, as an interim measure until the modern penalty framework of the Public Health Act 2016 applies, the penalties under the Regulations are to be increased in accordance with the penalty framework of the Health (Miscellaneous) Provisions Act 1911 and local governments given the ability to issue infringement notices for offences.
What is an infringement notice?
An infringement notice is a notice that the person to whom it is directed has committed an alleged specified offence under a regulation, and requires payment of a specified monetary amount for the offence within a specified time. Infringement notices provide a cost effective and efficient method of dealing with offences.
Not complying with an infringement notice can result in referral to a court for hearing or enforcement action may be taken under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (external site).
Who issues an infringement notice?
Local government authorised officers who are designated under the new Public Health Act 2016, are responsible for managing public health risks to the local community. Where an authorised officer suspects that a person is creating a risk to the public’s health by the incorrect management and disposal of asbestos-containing materials, they have the powers to issue an infringement notice as a measure to deal with offences created under the Health (Asbestos) Regulations 1992 (external site).
What about prosecution in a court of law?
Local government enforcement agencies also have the power to commence prosecutions against persons or body corporates for non-compliance with the Health (Asbestos) Regulations 1992 (external site). Such matters would be dealt with in a magistrates court, and a maximum penalty of $10 000 may apply. A body corporate may be fined up to five times this amount.
In what circumstances would someone be taken to court?
The decision to prosecute is at the discretion of the relevant local government enforcement agency. As a general rule, prosecution action might be considered, rather than issuing an infringement notice in the following types of circumstances:
- Where the breach relates to a serious compromise of health standards and is of such a nature as to amount to a serious threat to public health and safety
- Where the offender has already been subject to a prior warning issued by the enforcement agency for the same type of offence
- Where the offender has already been subject to a number of notices for different offences over the previous five years
- Where it is apparent that the offender was aware of the relevant legislation, but knowingly and recklessly disregarded the legislation
- Where the offender has a conviction for a breach of the same or similar nature within the last five years
- Where the offence is for assaulting, obstructing, hindering an officer or offering a bribe and
- Where the offender demonstrates a knowledge of the legislation but has been indifferent or negligent in its application.
Will these penalties increase further?
Yes. In approximately 3 to 5 years’ time the
Health (Asbestos) Regulations 1992 (external site) will be repealed and replaced with a new set of regulations in accordance with the new penalty framework outlined in the
Public Health Act 2016.
This will allow for maximum penalties:
- For individuals – not exceeding a fine of $50 000 and
- For a body corporate - not exceeding a fine of $200 000.
Prescribed daily penalties will increase:
- For an individual – not exceeding a fine of $10 000
- For a body corporate – not exceeding a fine of $50 000
These increased penalties will further help to encourage compliance with Asbestos legislation and ultimately protect the community from harm.