. This appointment
Authorised officers
Authorised officers for the purposes of Part 2 of the
Criminal Procedure Act 2004 (external site) are the persons who are authorised to issue infringement notices under the Regulations on behalf of the local government.
Any person who is designated as an authorised officer under section 24(1) of the Public Health Act 2016 (external site), will also need to be appointed in writing to be an authorised officer for the purposes of the Criminal Procedure Act 2004 (external site) in order to issue infringement notices under the Regulations.
The local government must issue a person authorised to issue infringement notices with a certificate, badge or identity card identifying the officer as a person authorised to issue infringement notices under the Regulations.
A certificate of authority issued under section 30 of the Public Health Act 2016 (external site) may also serve this purpose if it includes wording to the following effect:
- [Insert name of officer] is appointed by the [insert name of local government] under regulation 15D(5) of the Health (Asbestos) Regulations 1992 as an officer who is authorised to issue infringement notices for the offences specified under Schedule 1 of those regulations.
Approved officers
Approved officers for the purposes of Part 2 of the Criminal Procedure Act 2004 (external site) are the persons authorised to extend the period to pay or withdraw an infringement notice.
For example, the Chief Executive Officer of the local government may be appointed as the ‘approved officer’.
While approved officers must be appointed in writing, local government does not need to issue a certificate, badge or identity card identifying the person as an approved officer.
A person appointed as an approved officer is not eligible to also be appointed as an authorised officer for the purposes of Part 2 of the Criminal Procedure Act 2004 (external site).
Infringement notice offences and forms
The offences and forms are prescribed in schedule 1 to 3 under the
Health (Asbestos) Regulations 1992 (external site):
Infringement Notices Enforcement Scheme
The Infringement Notices Enforcement Scheme is the legislative scheme by which prosecuting authorities may attempt to enforce unpaid infringement notices.
Once the preliminary requirements of the legislation under which the infringement notice was issued have been fulfilled, a prosecuting authority can attempt to enforce the unpaid infringement using the Infringement Scheme.
Each enforcement agency must register separately as a prosecuting authority should they wish to use the Infringement Scheme. The Infringement Scheme includes access by the prosecuting authority to the eCourts Portal which allows easy lodgement, withdrawal and access to updated information in regard to each case.
To register for the Infringement Scheme, the Fines Enforcement Registry has advised that a local government will need to send a formal letter advising the Registry that they would like to join the Infringement Scheme. This letter will need to include a copy of the enforcement agency’s final demand notice and an authorised officers’ schedule.
Local governments can register any time after the Regulation amendments have come into effect. Until a local government is registered the Infringement Scheme cannot be used. However it does not prevent infringement notices from being issued and the offence enforced by the local governments in the usual way.
The Department of the Attorney General has published the "Infringement Notices Enforcement Scheme Booklet" which includes a template letter and demand notice to assist local governments in applying to participate in the Scheme. For further information regarding the Infringement Scheme or for a copy of the Booklet please contact the Fines Enforcement Registry at Prosecuting.authority@justice.wa.gov.au or at 1300 650 235 (speed dial extension 8).
Legal action through the courts
Prosecution will normally be reserved for more serious breaches or matters where less severe enforcement action has not changed the non-compliant behaviour. The decision to prosecute is discretionary, and the dominant factor in the exercise of this discretion is the public interest.
Where offences are knowingly committed with intent to not comply with the Asbestos Regulations, or where defendants have previously been convicted in the Magistrates Court, consideration should be given to having matters heard before the District or the Supreme Court. The maximum penalty is now $10 000. A body corporate may be fined up to five times this amount under section 40(5) of the Sentencing Act 1995 (external site).
Further information
For advice on asbestos risk and its management advice can be sought from the Environmental Health Directorate on 9388 4999 or enhinfo@health.wa.gov.au
For information about the Public Health Act 2016 contact publichealthact@health.wa.gov.au