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OSH Tracker

Builders Corner Ltd v Department of Labour (HC, 19/07/11)

OSH Tracker

Defendant:
Builders Corner Ltd
The High Court has confirmed a lower court decision that an infringement offence under the HSE Act does indeed constitute a conviction in law. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Struck by falling object
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 134
Defendant:
Total Solutions Ltd
The High Court has confirmed a lower court decision that an infringement offence under the HSE Act does indeed constitute a conviction in law. 
Industry:
Manufacturing
Sub-Industry:
Machinery and Equipment Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 134

Judgment Text

JUDGMENT OF BREWER J 
Brewer J
Introduction 
[1]
These are appeals against conviction. They were heard together, and will be addressed together in this judgment, because there is only one issue and it is common to both appeals. 
[2]
The issue is one of law. It is whether s 78A(1) of the Summary Proceedings Act 1957 (SPA) prevented the District Courts from convicting the appellants. 
[3]
Section 78A provides: 
“78A Conviction not to be recorded for infringement offences 
(1)
Notwithstanding any other provision of this or any other Act, where in proceedings for an infringement offence (whether being an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, the offence and the Court would, but for this subsection, convict the defendant, the Court shall not convict the defendant but may order the defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence. 
(2)
Every reference in this or any other Act or in any regulation or bylaw to a conviction for an offence shall, in relation to an infringement offence where— 
(a)
An order has been made as referred to in subsection (1) of this section that the defendant pay a fine and costs; or 
(b)
An order is deemed by virtue of section 21(5) of this Act to have been made that the defendant pay a fine and costs,— 
be deemed to be a reference to the making of that order. ”
Background 
[4]
On 23 July 2010 the appellant, Total Solutions Ltd (TSL), pleaded guilty to an offence set out in an information laid pursuant to Part 2 of the SPA. The offence alleged was breach of “Regulation 66(1)(b) of the Health and Safety Regulations 1995 [HSR] and Section 50(1)(c) of the Health and Safety in Employment Act 1992 [HSEA]”
[5]
On 3 September 2010 in the District Court at Hamilton, Judge RJ Marshall convicted TSL of the offence and imposed sentence. Prior to doing so the Judge had considered and rejected submissions that s 78A(1) of the SPA precluded him from entering a conviction. 
[6]
On 7 July 2010 the appellant, Builders Corner Ltd (BCL), was remanded for sentence on an intimated plea of guilty to an offence set out in an information laid pursuant to Part 2 of the SPA. The offence alleged was breach of “Section 6 and Section 50(1)(a) of the [HSEA]”. 
[7]
On 30 November 2010 in the District Court at Auckland, Judge RL Kerr convicted BCL of the offence and imposed sentence. On 14 October 2010 the Judge had heard argument on the applicability of s 78A(1) of the SPA and in a reserved judgment given on 30 November 2010 immediately prior to sentencing had held that it did not apply. 
[8]
It is not necessary for me to consider the offences themselves, nor the sentences imposed for them. The appellants do not challenge either the jurisdiction of the District Court Judges to impose the sentences or the sentences themselves. 
Wallace Corporation Ltd v Waikato Regional Council 
[9]
When District Court Judges Marshall and Kerr reached their views that s 78A(1) of the SPA did not preclude them from entering convictions, the leading authority was Wild J's decision in Wallace Corporation Ltd v Waikato Regional Council.1
| X |Footnote: 1
Wallace Corporation Ltd v Waikato Regional Council [2010] 2 NZLR 556 (HC)Has Litigation History which is not known to be negative[Blue] 
Since then the Court of Appeal has considered the case. It disagreed with Wild J's reasons for his judgment but upheld the outcome on different grounds.2
| X |Footnote: 2
Wallace Corporation v Waikato Regional Council [2011] 2NZLR 573 (“Wallace (CA)”). 
 
[10]
Wallace Corporation v Waikato Regional Council dealt with prosecutions brought under the Resource Management Act 1991 (RMA). The issue was whether the informations, and hence the convictions entered into in reliance on them, were nullities due to the leave of a District Court Judge or a Registrar to the laying of the informations not having been obtained as required by s 21 of the SPA. The charges the subject of the case were infringement offences and if s 21 of the SPA applied then leave was required before an information could be laid. The Court of Appeal held that the RMA provides its own procedures for issuing infringement notices and stands independent of the s 21 procedure. 
[11]
The appellants' broad submission is that the HSEA's provisions are materially different to those in the RMA and when the Court of Appeal's reasoning as to why the RMA stands apart from the SPA is applied to the HSEA it becomes clear that the HSEA is not so isolated. 
The HSEA infringement offences regime 
[12]
The infringement offences regime of the HSEA was inserted on 5 May 2003 by s 29 of the Health and Safety in Employment Amendment Act 2002. The sections are numbered 56A to 56H. 
[13]
Section 56A defines an infringement offence as meaning an offence described in s 50(1). 
[14]
Section 56B provides for the issuing and revoking of infringement notices. Relevantly, s 56B(2) provides: 
“An inspector may revoke an infringement notice before the infringement fee is paid, or an order for payment of a fine is made or deemed to be made by a Court under section 21 of the Summary Proceedings Act 1957. ”
[15]
Section 56C sets out when a person has had prior warning of an infringement offence. 
[16]
Section 56D permits an inspector to require information. 
[17]
Section 56E sets out procedural requirements for infringement notices. References to the SPA are as follows: 
(3)
For the purposes of the Summary Proceedings Act 1957, an infringement notice must be treated as having been served on the person on the date it was posted. 
(4)
An infringement notice must be in the prescribed form and must contain— 
(a)
details of the alleged infringement offence that are sufficient to fairly inform a person of the time, place, and nature of the alleged infringement offence; and 
(b)
the amount of the infringement fee; and 
(c)
an address at which the infringement fee may be paid; and 
(d)
the time within which the infringement fee must be paid; and 
(e)
a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and 
(f)
a statement that the person served with the notice has a right to request a hearing; and 
(g)
a statement of what will happen if the person served with the notice does not pay the fee and does not request a hearing; and 
(h)
any other prescribed matters. 
(5)
If an infringement notice has been issued, proceedings in respect of the infringement offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957 and, in that case,— 
(a)
reminder notices may be prescribed under regulations made under this Act; and 
(b)
in all other respects, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications. 
[18]
Section 56F prescribes the amounts of infringement fees. 
[19]
Section 56G provides for the payment of infringement fees. 
[20]
Section 56H sets out the effect of the issuing of an infringement notice. 
[21]
The offences of which the appellants were convicted fall within the definition in s 56A of ‘infringement offences’. Infringement offences can be prosecuted either by the laying of an information under the HSEA (as occurred with the appellants) or by the issuing of an infringement notice under the HSEA.3
| X |Footnote: 3
HSEA, s 2(1), definition of ‘enforcement action’. 
 
Submissions for the appellants 
[22]
The appellants submit, broadly, that the prosecutions of the appellants fall squarely within the regime of the SPA. They start by citing the relevant definitions in s 2 of the SPA. 
[23]
The first such definition is that of “infringement offence” which “means any offence under any Act in respect of which a person may be issued with an infringement notice”
[24]
The next relevant definition is “infringement notice” which is defined as meaning a notice issued under any of 13 listed statutes (among which is neither the RMA nor the HSEA) and:4
| X |Footnote: 4
I will refer to this provision, as did the Court of Appeal in Wallace and counsel before me, as “s 2(1)(k)”. 
 
“(k)
any provision of any other Act providing for the use of the infringement notice procedure under section 21. ”
[25]
The question arising from this provision lies at the heart of the appeals in this case, as it lay at the heart of the appeals in Wallace.5
| X |Footnote: 5
Wallace (CA) at [18]. 
It is whether any provision of the HSEA provides for the use of the s 21 SPA infringement notice procedure within the s 2(1)(k) definition. 
[26]
On the appellants' analysis, a number of aspects of the Wallace decision favour them. Section 343C(4) of the RMA is materially different to its counterpart provision in the HSEA because it provides for the issue of an infringement notice under “this section”. The equivalent section of the HSEA, s 56E(5), provides instead: 
“If an infringement notice has been issued, proceedings in respect of the infringement offence to which the notice relates may be commenced in accordance with section 21 of the [SPA] and, in that case,— 
(a)
reminder notices may be prescribed under regulations made under this Act; and 
(b)
in all other respects, section 21 of the [SPA] applies with all necessary modifications. ”
[27]
The Summary Proceedings Amendment Act 2006 amended s 343C(4) of the RMA but did not add the RMA to the list of statutes under s 2. The amendment added a requirement that if an infringement notice “has been issued under this section” then a reminder notice must be in the form prescribed under the RMA. Secondly, s 343C retained the existing reference to an infringement notice “issued under this section [s 343C]”. The appellants submitted that this was significant because the Court of Appeal6
| X |Footnote: 6
Wallace (CA) at [42]. 
saw it as indicating that the RMA did not adopt the s 21 procedure and reinforced the Court of Appeal's view that the RMA was a self-contained regime.7
| X |Footnote: 7
Synopsis of submissions of counsel for the appellants, dated 2 May 2011, at [27]. 
 
[28]
The appellants contrast s 343C as amended with s 56E of the HSEA. The latter does not require the notice to have been issued under the HSEA. Nor does it require that the reminder notice must be prescribed under regulations made under the HSEA. The appellants submit that:8
| X |Footnote: 8
Ibid, at [28]. 
 
“Significantly, s 56E of the HSEA is practically identical to the former wording of s 343C. ”
[29]
The appellants also point to the different offence regimes. Offences which can be infringement offences under the RMA can carry maximum penalties of up to two years' imprisonment. The Court of Appeal thought this was significant in deciding whether the SPA regime applied to the RMA particularly given that charges with those maximum penalties permit the election of trial by jury.9
| X |Footnote: 9
Wallace (CA) at [54]. 
 
[30]
It is submitted that the HSEA offences which fall within the definition of “infringement offences” are more readily identifiable as regulatory offences. They are offences of strict liability punishable by fine only. 
[31]
The appellants also note that at [55] of Wallace, the Court of Appeal specifically records that neither the Railways Act nor the HSEA contain infringement notice procedures. This was in reference to the Crown's analysis of statutes not listed under s 2 of the SPA but which, in contradistinction to the RMA, could be said to fall within s 2(1)(k) of the SPA. 
[32]
The appellants referred to aspects of the HSEA which they submit favour their construction of the statute. The appellants submit that three sections in the HSEA10
| X |Footnote: 10
HSEA, ss 56B(2), 56E(4)(e), 56E(5). 
which incorporate aspects of the s 21 procedure are necessary because the HSEA is not a self-contained regime. For example, reminder notices are entirely incorporated from the SPA.11
| X |Footnote: 11
SPA, s 21(2)-(5B). 
 
[33]
Other examples are the issue of costs,12
| X |Footnote: 12
SPA, s 21(9). 
the SPA statutory defence,13
| X |Footnote: 13
SPA, s 21(10). 
and the right for a person served with an infringement notice to request a hearing.14
| X |Footnote: 14
SPA, s 21(6), (7) and (8). 
 
[34]
The appellants also raise arguments which they submit were not put before the Court of Appeal in Wallace. These arguments can be summarised: 
(a)
“Summary conviction” is defined by s 29 of the Interpretation Act as a conviction by a District Court Judge … in accordance with the SPA. To record a conviction contrary to s 78A of the SPA would not be in accordance with the SPA. 
(b)
Parliament did not intend for a “criminal record” to be created for infringement offending.15
| X |Footnote: 15
SPA, ss 71 and 78A; HSEA s 56H. 
 
[35]
The appellants submit that the plain words of s 78A of the SPA should be given effect. The words “notwithstanding any other provision of this or any other Act” give the section primacy. It provides specifically for a situation where an informant has proceeded by the laying of an information so that regardless of which path has been taken for the prosecution, no conviction is to be entered. The ability of the Court to determine penalty and otherwise respond to the offending is preserved. It provides an exception to a conviction and is expressed in mandatory terms. 
The respondent's submissions 
[36]
The respondent's submissions approach the appeals by reference to the Court of Appeal's reasoning in Wallace. In broad terms, it is submitted that the Court of Appeal's decision establishes that not all infringement notice regimes operate under the aegis of the SPA. To determine whether the HSEA regime does or does not, the Court of Appeal's reasoning must be applied. 
[37]
The respondent's first point is that the RMA introduced its infringement notice provisions in 1996 after s 2(1)(k) of the SPA had been enacted and was not expressly brought within its terms. This is also the case with the HSEA.16
| X |Footnote: 16
The HSEA infringement notice regime was enacted in 2002 and became operative in 2003. 
 
[38]
The single list now existing in s 2(1) of the SPA was enacted in 2006. The Court of Appeal noted that the omission of the RMA from that list appears to have been deliberate because the same legislation amended the wording of s 343C of the RMA. Although the HSEA was not the subject of any amending provision in the 2006 legislation, neither was it added to the s 2(1) list. 
[39]
The respondent submits that the Court of Appeal in deciding that the RMA had largely a standalone procedure pointed to the infringement notice and any reminder notice being required to be in a form prescribed by the RMA. Those forms regulate a number of aspects of the RMA infringement notice regime, including the payment of fines, the procedure when a defendant seeks to dispute liability or fails to pay a fine, and the consequences of a failure to pay such a fine. As with the RMA, the HSEA prescribes a form for the infringement notice according to regulations made pursuant to it rather than the SPA.17
| X |Footnote: 17
HSEA, s 56E(4); Health and Safety in Employment (Prescribed Matters) Regulations 2003, reg 9 (HSER), and Form 3 to those Regulations. 
Further, as with the RMA infringement offence regime, the HSEA infringement offence regime regulates the payment of fines, the procedure when a defendant seeks to dispute liability or fails to pay a fine, and the consequences of a failure to pay such a fine. 
[40]
The respondent submits further that the Court of Appeal's construction of s 343C of the RMA did not turn upon its particular language but upon the overarching legislative intent of that enactment. Therefore, the fact that that provision and s 56E(5) of the HSEA refer to proceedings in respect of infringement offences being commenced in accordance with s 21 of the SPA, and both refer to that provision applying with all necessary modifications, is not determinative. What is important is that in each case s 21 only applied once the infringement notice had been issued under the enactment. 
[41]
As with the RMA, and significantly, the HSEA creates its own template for infringement offence reminder notices according to regulations made under the HSEA.18
| X |Footnote: 18
HSEA, s 56E(5); HSER, reg 10 and Form 4(2). 
 
[42]
In answer to the appellants' point that the HSEA contains no provisions in relation to reminder notices, whereas the RMA does, the respondent submits that the prescribed HSEA form19
| X |Footnote: 19
HSER, Form 4. 
contains much of the necessary procedure for the operation of such notices in the context of infringement offences. Further, the same form provides for a statutory defence in terms similar to those within s 21(10) of the SPA. 
[43]
The respondent also submits that the Court of Appeal in Wallace found it relevant that from the coming into force of the RMA prosecutors could lay informations, without leave, in relation to offences that later became infringement offences. Subsequently to limit that ability by subjecting the RMA prosecutions to the s 21 SPA procedure would surely have required the specific addressing of the RMA's position by including it in the s 2(1) SPA schedule. The point is the same for the HSEA. A similar point can be made in relation to s 78A.20
| X |Footnote: 20
Section 78A came into effect on 1 November 1987. 
 
[44]
The respondent points to the fact that s 55(1) of the HSEA was not amended or revoked when the HSEA infringement offences regime was introduced and, when read with s 54A which was introduced at that time, it can be inferred that Parliament did not intend the HSEA regime to be subject to the SPA. 
[45]
The relevant submission of the respondent on this point is as follows: 
“20.
Read with s 55, which as noted went unchanged, s 54A of the HSE could be treated as confirmation that Parliament did not intend the new HSE infringement offence regime to require the obtaining of leave before an inspector filed an information, unlike the SPA, and in particular, s 21 of that Act. 
21.
Sections 54B, 54C, and 54D of the HSE provide support for this view, for they create provisions of a sui generis nature in relation to the time limit for the laying of a HSE information, in contrast to the strict six month time limit created by s 14 of the SPA. ”
[46]
The respondent also refers to s 56H(1) of the HSEA and notes that it would be unnecessary for that section to stipulate that a criminal record must not be created in respect of an infringement offence if s 78A of the SPA applied. The respondent reinforces this submission by having regard to s 50 of the HSEA which appears to contemplate the potential entry of a conviction having regard to its opening phrase “every person commits an offence, and is liable on summary conviction … ”
[47]
The respondent also addresses the arguments of the appellants not directly related to the Court of Appeal's reasoning in Wallace. On the point that s 29 of the Interpretation Act 1999 defines “summary conviction” in accordance with the SPA, the respondent submits: 
(a)
Wallace holds that certain infringement offences (those provided for in the RMA) lie outside of s 78A. If that is the case, convictions can be entered “in accordance with” the SPA. 
(b)
If the appellants are correct, then s 78A precludes the entry of a conviction for any infringement offence in any statute whatsoever. But that would mean that Wallace could not have been decided as it was. Since this Court is bound by the decision of the Court of Appeal in Wallace, that is not a submission which it can receive. 
[48]
The same must be true for the argument that Parliament did not intend for a “criminal record” to be created for infringement offences. 
[49]
I agree with these submissions and will confine my analysis to the applicability of the Wallace reasoning. 
Analysis 
[50]
I start with the obvious point that the SPA is not intended to create an exclusive regime regulating infringement offences:21
| X |Footnote: 21
SPA, s 2. 
 
Infringement offence means any offence under any Act in respect of which a person may be issued with an infringement notice. ”
[51]
However, this very broad definition is restricted by the definition of “infringement notice”
“Infringement notice means a notice issued under … [13 listed statutes]; or 
(k)
any provision of any other Act providing for the use of the infringement notice procedure under section 21. ”
[52]
The intent of the SPA is clear. It provides a regime to regulate infringement offences. It applies particularly to those statutes listed in s 2(1) (a list which has been amended as recently as May 2011). But it is also available to other Acts which provide for the use of the s 21 procedure. 
[53]
The Court of Appeal in Wallace held that a proper construction of the RMA is that it does not provide for the use of the s 21 procedure and so provides its own regime, borrowing as necessary from the SPA's provisions. 
[54]
My task is to consider the scheme, scope and nature of the HSEA infringement offences regime to decide whether, as with the RMA, Parliament intended it to stand alone or instead provided for it to use the s 21 infringement notice procedure. 
[55]
The HSEA reformed the law relating to the health and safety of people at work or affected by the work of other people.22
| X |Footnote: 22
It came into force on 1 April 1993. 
Among other things, it provided for the appointment of inspectors who have as one function to take all reasonable steps to ensure compliance with the Act.23
| X |Footnote: 23
HSEA, s 30(c). 
This includes taking enforcement action. 
[56]
There are three levels of enforcement action which can be taken by an inspector. In descending order of seriousness they are:24
| X |Footnote: 24
Ibid, s 2, definition of ‘enforcement action’. 
 
(i)
the laying of an information under this Act; or 
(ii)
the issuing of an infringement notice under this Act; or 
(iii)
the making of an application for a compliance order; …  
[57]
Only an inspector can issue an infringement notice. Enforcement action by a person other than an inspector is limited to either the laying of an information or the making of an application for a compliance order. This indicates that the HSEA's infringement offence regime is intimately part of the inspectorate's functions, a key part of which is to improve safety in the workplace. 
[58]
The HSEA creates two categories of offences for contravention of its provisions. The first is offences likely to cause serious harm.25
| X |Footnote: 25
Ibid, s 49. 
The penalties under this category include imprisonment for up to two years. The second is “other offences”, being lesser offences.26
| X |Footnote: 26
Ibid, s 50. 
Imprisonment is not an available penalty, only fines. 
[59]
Infringement offences in the HSEA are limited to those “other offences” described in s 50(1). Therefore, a person convicted of an HSEA infringement offence cannot be imprisoned, only fined (although the maximum fine is $250,000). 
[60]
The Court of Appeal in Wallace thought it significant that the RMA regime included offences for which imprisonment could be imposed if the summary prosecution route was chosen. Trial by jury was available in that circumstance. On its face, that would not indicate a regime which Parliament would have intended to be subject to the SPA restriction on the entry of convictions. The same analysis does not apply to the HSEA. 
[61]
The SPA regime prohibits the entering of a conviction for an infringement offence because it is part of a regulatory regime aimed at promoting compliance without the stigma of a conviction. A fine of $250,000 is subjectively a large sum to be levied free of an accompanying conviction. 
[62]
The HSEA has its own infringement offences regime, and it borrows from the SPA. So too does that of the RMA. Looking at the links to the SPA: 
(a)
Section 56B(2) provides: 
“An inspector may revoke an infringement notice before the infringement fee is paid, or an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957. ”
This indicates that a Court exercising jurisdiction under s 21 of the SPA will be doing so in relation to infringement notices issued under the HSEA. There is no equivalent provision in the RMA. 
(b)
Section 56E(3) provides: 
“For the purposes of the Summary Proceedings Act 1957, an infringement notice must be treated as having been served on the person on the date it was posted. ”
This indicates that the SPA is part of the HSEA regime. However, there is an equivalent provision in the RMA. 
(c)
Section 56E(4)(e) requires an infringement notice to contain a summary of the provisions of s 21(10) of the SPA. This by itself is not necessarily more than a convenient shorthand but it does reinforce the connection with the SPA and s 21 thereof in particular. But there is an equivalent provision in the RMA. 
(d)
Section 56E(5) is important. It provides: 
“If an infringement notice has been issued, proceedings in respect of the infringement offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957 and, in that case,- 
(a)
reminder notices may be prescribed under regulations made under this Act; and 
(b)
in all other respects, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications. ”
The RMA, by contrast, requires infringement notices to be issued under s 343C and requires a reminder notice to be in the form prescribed under the RMA. 
(e)
Section 56H provides that if an infringement notice is issued, a criminal record must not be created in respect of the infringement offence. This is duplicative of s 78A of the SPA. It would not be needed if the HSEA regime was subject to the SPA. 
[63]
The HSEA does not explicitly require an infringement notice to be issued under the HSEA, but it does require an infringement notice to be in the “prescribed form”, which is Form 3 of the HSEA schedule. Form 3 states that it is issued “under section 56B of the [HSEA]”. This could be said to indicate that the HSEA adopts an infringement notice procedure separate to the SPA. 
[64]
A reminder notice in respect of an infringement notice may be prescribed under the Health and Safety in Employment (Prescribed Matters) Regulations 2003.27
| X |Footnote: 27
HSER, reg 9. 
This is not mandatory language and significantly the prescribed form of a reminder notice is Form 4, which states that it is issued “under section 21(2) of the [SPA] and section 56E(5) of the [HSEA]”. This tends to indicate that the SPA applies to the HSEA reminder notice procedure. 
[65]
This inference is reinforced by s 21(2AA)(a) SPA, which states that a reminder notice as referred to in the SPA must be in the form prescribed in the Act to which the infringement offence relates, if a form has been so prescribed. That is consistent with saying that, if an offence is committed under the HSEA, a reminder notice for the purposes of s 21 SPA must be in the HSER form. 
[66]
There are practical provisions in the SPA which have no equivalent in the HSEA and which the HSEA does not incorporate. There is no equivalent in the HSEA to ss 21(2)-(5B) SPA. Nor do the HSEA or HSER provisions contain an equivalent to ss 21(8) or 21(12) SPA, which are important procedural provisions. 
[67]
On the other hand, much of the necessary procedure is prescribed in Forms 3 and 4, similarly to the way that the process is prescribed under the schedule 2 and 3 RMA forms. The equivalent RMA provisions incorporated the procedure into its schedule forms, rather than directly in the Act or regulations.28
| X |Footnote: 28
Wallace at [47]. 
 
Conclusion 
[68]
The HSEA was enacted to reform the law relating to the health and safety of employees and other people at work or affected by the work of other people. It is a standalone statute in the sense that it is self-contained. 
[69]
From its enactment, the HSEA divided offences against its provisions into “offences likely to cause serious harm” and “other offences”. Anyone convicted of the former was in jeopardy of imprisonment. Anyone convicted of the latter was “on summary conviction” liable to a fine. 
[70]
In 2002 Parliament decided to add to the powers afforded inspectors under the HSEA by giving them the option of proceeding against offenders by way of infringement notices. It designated “other offences” as infringement offences. The HSEAA 2002 borrowed specifically from the SPA at various points in the regime it established. The overall regime can, and does, operate effectively as a standalone regime. Some deficiencies have been pointed out but these appear to have no operative effect. 
[71]
At the time Parliament enacted the HSEAA 2002, s 2(1)(k) of the SPA was in existence, and had been for a number of years. If the HSEAA 2002 regime was to become subject to the SPA regime in full (instead of just borrowing parts of it as specified) then quite significant consequences would flow. An inspector would have to seek leave before laying an information for an infringement offence29
| X |Footnote: 29
I note that s 98(2) of the Railways Act 2005, an Act to which it is clear the SPA does apply, provides specific exemption from the s 21 SPA requirement for leave to be sought. 
and no defendant could be convicted for an infringement offence even if proceeded against summarily and even though the maximum fine was increased by the HSEAA 2002 to $250,000. 

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