The New Zealand Law Society has identified a potential problem with an aspect of the draft Health and Safety at Work (Infringement Offences and Fees) Regulations 2015.

In comments to the Ministry of Business, Innovation and Employment on an exposure draft of the regulations, the Law Society says its key concern is about the consequences of applying infringement fees to the statutory offences set out in the Health and Safety Reform Bill, which arise because of the definition of "infringement offence" in the Summary Proceedings Act 1957.

The Law Society says the draft regulations create some infringement offences by simply applying infringement fees to statutory offences.

"While this is not uncommon, it has created issues in the past. Once an infringement fee is specified for an offence, the offence becomes an 'infringement offence' as a result of the Act definition, even if the infringement fee is in addition to a statutory penalty," it says.

This leads to two consequences which appear to be inconsistent with the goals of the Bill, the Law Society says.

Where there is serious, charge-worthy conduct, leave of the Court is required before the prosecutor can lay a charging document. This creates unnecessary administration and is not required for other equally or even more serious offences.

The second issue is that even if a finding of guilt is made no conviction can be entered - regardless of whether the offence was originally charged or was the subject of an infringement notice.

The Law Society suggests that there are two possible solutions for addressing the issues it identifies. Separate infringement offences could be drafted instead of applying infringement fees to pre-existing statutory offences.

The other option is to insert wording into the Bill which expressly addresses the issues identified by removing the need for leave where charging documents are laid and removing the restriction on convictions. 

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