Improvement notices and enforcement orders – Public Health Act

An infringement notice is a notice issued to a person alleged to have committed an offence. Payment of a fixed monetary amount for the offence is required within a specified time. 

It provides the person with the opportunity to have the matter dealt with out of court.

Can infringement notices be issued?

Yes, because the Act is a prescribed Act under the Criminal Procedures Act 2004 (external site). 

This means that regulations made under the Act may prescribe offences for which an infringement notice can be issued.

Can an infringement notice be issued to the Crown?

No, an infringement notice cannot be issued to the Crown. 

What forms must be used for infringement notices?

The forms to issue or withdraw an infringement notice will be prescribed in regulations. An infringement notice must be in the prescribed form.

Can a person contest an infringement?

A person may seek a review of the infringement notice or may elect to have the matter considered by a court.

If a person pays an infringement notice, can any further action be taken? 

An infringement notice is an alternative to prosecution. The Fines, Penalties and Infringement Notices Enforcement Act 1994 (external site) provides that the effect of paying an infringement notice is that: 

• no further prosecution of that matter can occur and 
• payment is not to be taken as admission of any kind for that alleged offence. 

However, issuing infringement notices is separate from action that may be taken under Part 14 in relation to improvement notices and enforcement orders.

Infringement notices can therefore be issued irrespective of whether action is also being undertaken under that Part.

An improvement notice is an order that either requires or prohibits a person from taking specified action.

Refer to forms for the prescribed improvement notice template.

Who can issue an improvement notice?

An authorised officer can issue an improvement notice if he or she reasonably believes that one of the specified criteria (section 212) for the issue of an improvement notice has been met.

Reasonably believes means the particular belief, if taken from an objective viewpoint, would be considered appropriate in the circumstances. It cannot be a belief that no reasonable person in the same situation would hold.

When can an improvement notice be issued?

Improvement notices may be issued on a number of grounds, including the carrying on (or manner of carrying on) of a public health risk activity that contravenes any provision of the Act, or the undertaking of an activity that poses a risk of harm to public health by a person who has failed to take reasonable and practicable steps to prevent or minimise such harm.

Refer to section 212 for the list of criteria that may be met for the issuing of an improvement notice.

Can an improvement notice be issued to the Crown?

Yes, an improvement notice can be issued to the Crown, unless the Crown has received an exemption under Part 17 in relation to the activity to which the improvement notice relates. The improvement notice must be issued to the ‘responsible agency’.

The responsible agency is the agency of the Crown the acts or omissions of which are alleged to form the basis for the giving of the notice (section 291).

If an authorised officer issues a responsible agency with an improvement notice, and the agency does not comply, what action can be taken?

If the Crown does not or cannot comply with an improvement notice, an authorised officer may:

• advise the Crown to seek an exemption under Part 17 of the Act in relation to that matter
• consider referring the matter to the Chief Health Officer.

An enforcement order is an order requiring specific action to be taken or prohibiting action to be taken by a person. 

Refer to forms for the prescribed enforcement order template.

Who can issue an enforcement order?

Enforcement orders may only be issued by an enforcement agency. This power may be delegated to the Chief Executive Officer of the local government or an authorised officer in accordance with section 21 of the Act.

Can an enforcement order be issued to the Crown?

No. An enforcement order cannot be issued to the Crown in accordance with section 293.

When can an enforcement order be issued?

An enforcement order may be issued to a person if the enforcement agency reasonably believes:

• The person has not complied with an improvement notice or 
• The order is necessary to prevent or mitigate a serious public health risk. 

The enforcement order must be in writing and specify that it is being issued under section 216 of the Act.

What is a Certificate of Clearance? 

A Certificate of Clearance must be issued by the enforcement agency once an enforcement order has been complied with and if applicable, there is no longer a serious public health risk to be prevented or mitigated (section 223).

The Certificate of Clearance must be issued in the approved form. 

Refer to forms for the prescribed Certificate of Clearance template.

An enforcement agency must be satisfied, either by its own assessment or on the report of an authorised officer’s assessment, that an enforcement order has been complied with, prior to issuing a Certificate of Clearance. 

Once the Certificate of Clearance has been issued, the enforcement order is considered to be revoked.

What process must be followed if a person given an enforcement order has not complied with that order?

If an assessment is undertaken and reveals that the enforcement order has not been complied with, the enforcement agency must provide a written notice to the person detailing the reasons for that decision (section 224 (3)).

This written notice must be in the approved form. 

Refer to forms for the prescribed Certificate of Non-compliance template. 

What happens if a person does not comply with an enforcement order and the public health risk still needs to be addressed?

An enforcement agency may implement an enforcement order where a person has not complied. The enforcement agency may take any action the agency reasonably believes to be necessary to ensure that the order is complied with.

In doing so, an enforcement agency may seek assistance from a police officer or any other person necessary and may use such force as is reasonably necessary.

Can costs be recovered if the enforcement agency bears costs implementing the order?

Yes. Section 221 of the Act enables an enforcement agency to recover costs incurred as a result of implementing the order.

It is therefore important for an enforcement agency to record the details of any costs associated with implementing an enforcement order.

If the enforcement agency implements the order, can the person still be prosecuted?

Yes. Section 222 provides that criminal liability is not affected in circumstances where section 219 is enforced. 

This means that a person can still be prosecuted regardless of whether the enforcement agency has implemented the enforcement order.

Can a person seek a review of a decision to issue an enforcement order?

Yes. A person who has been issued an enforcement order may apply to the SAT for a review of that decision.

A person may also apply to the SAT if a Certificate of Clearance is not issued.

If the person appeals to SAT can action be taken to prevent a serious public health risk?

If the enforcement agency believes that action is necessary to avoid a serious public health risk from occurring, the enforcement agency can take action to mitigate the risk, in accordance with the requirements of section 219. 

However, where the risk is not sufficiently urgent to warrant immediate action, an enforcement agency should consider granting an extension of time to comply with the order to enable SAT to consider the matter.

Who is responsible for initiating legal action through the court?

In accordance with section 280 of the Public Health Act, proceedings for an offence may be commenced by an enforcement agency, by the Chief Health Officer or by an officer authorised by the CHO.

What is the procedure for prosecution? 

The procedure for prosecution for an offence under this Act should be undertaken in accordance with the Criminal Procedure Act 2004 (external site).

What is the relationship between prosecution and Part 14?

A prosecution is separate from action under Part 14 relating to improvement notices and enforcement orders. So prosecution can be commenced irrespective of any action being undertaken under that part.

Prosecutions relate to addressing unlawful conduct, whereas Part 14 offers tools for addressing public health risks.