Builders Corner Ltd v Department of Labour HC Auckland CRI-2011-404-17

[2011] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-17

BETWEEN  BUILDERS CORNER LTD Appellant

ANDDEPARTMENT OF LABOUR Respondent

CRI-2010-419-90

AND BETWEEN            TOTAL SOLUTIONS LTD Appellant

ANDDEPARTMENT OF LABOUR Respondent

Hearing:         9 May 2011

Counsel:         R D Butler for Appellants

M D Downs for Respondent

Judgment:      19 July 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 July 2011 at 9:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Cook Morris Quinn (Auckland) for Appellants

Crown Law (Wellington) for Respondent

BUILDERS CORNER LTD V DEPARTMENT OF LABOUR HC AK CRI-2011-404-17 [19 July 2011]

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   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

[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

1      Wallace Corporation Ltd v Waikato Regional Council [2010] 2 NZLR 556 (HC).

2      Wallace Corporation v Waikato Regional Council [2011] 2NZLR 573 (“Wallace (CA)”).

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

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

(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   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,—

3      HSEA, s 2(1), definition of “enforcement action”.

4      I will refer to this provision, as did the Court of Appeal in Wallace and counsel before me, as

“s 2(1)(k)”.

(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  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

[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

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

[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.

6      Wallace (CA) at [42].

7 Synopsis of submissions of counsel for the appellants, dated 2 May 2011, at [27].

8 Ibid, at [28].

[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  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

[33]     Other examples are the issue of costs,12 the SPA statutory defence,13 and the right for a person served with an infringement notice to request a hearing.14

[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

[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

10     HSEA, ss 56B(2), 56E(4)(e), 56E(5).

11     SPA, s 21(2)-(5B).

12     SPA, s 21(9).

13     SPA, s 21(10).

14     SPA, s 21(6), (7) and (8).

15     SPA, ss 71 and 78A; HSEA s 56H.

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

[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    Further, as with the RMA infringement

offence regime, the HSEA infringement offence regime regulates the payment of

16     The HSEA infringement notice regime was enacted in 2002 and became operative in 2003.

17     HSEA, s 56E(4); Health and Safety in Employment (Prescribed Matters) Regulations 2003, reg 9 (HSER), and Form 3 to those Regulations.

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

[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 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

[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

18     HSEA, s 56E(5); HSER, reg 10 and Form 4(2).

19     HSER, Form 4.

20     Section 78A came into effect on 1 November 1987.

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

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.

21     SPA, s 2.

[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   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  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

(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   The penalties under this  category include imprisonment  for up  to two  years.   The second  is  “other offences”, being lesser offences.26    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

22     It came into force on 1 April 1993.

23     HSEA, s 30(c).

24     Ibid, s 2, definition of “enforcement action”.

25     Ibid, s 49.

26     Ibid, s 50.

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    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

27     HSER, reg 9.

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

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.

28     Wallace at [47].

[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  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.

[72]     In my view, if Parliament had intended these consequences to flow to the HSEA it would have provided unambiguously for the use of the infringement notice procedure  under  s 21  of  the  SPA.    Section  2(1)(k)  would  then  have  had  clear application.  It did not.

[73]     I find it significant that not only did Parliament not provide directly for the use of the s 21 procedure but it inserted s 56H(1) to provide that if an infringement notice is issued, a criminal record must not be created.  This would not be necessary if the SPA regime was to apply to the HSEA.   It was necessary if, as it appears, Parliament wanted to leave open a convictions regime for prosecutions for conduct for which fines of up to $250,000 could be imposed.

[74]     I also find it significant that s 55 went unchanged and that ss 54B-54D create a time-limit regime for the laying of informations different to that of s 14 of the SPA.

[75]     I therefore determine that the HSEA does not provide for the use of the infringement notice procedure under s 21 of the SPA.  Accordingly, s 78A(1) of the SPA does not apply to proceedings for infringement offences under the HSEA.

[76]     The appeals are dismissed.

Brewer J

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.