Compliance, Enforcement and Prosecution Policy

COMPLIANCE, ENFORCEMENT AND PROSECUTION POLICY

The Department of Agriculture and Food, Western Australia

This policy provides a broad outline of the Department’s approach to non-compliance with, and enforcement of legislation which the Department administers.

The purpose of the policy is to:

• promote consistent enforcement action across all sections of DAFWA;

• guide and assistofficers in the performance of their functions;

• encourage a pro-active compliance approach where staff are confident and supported in their roles; and

• improve compliance with DAFWA legislation.

Legislation Specific Policies[1] may provide further detail on how the Department assists compliance with specific legislation.

Openness and transparency

The existence and consistent application of compliance, enforcement and prosecution policy assists openness, transparency and accessibility in DAFWA’s dealing with the public.

Consistency

This policy assists in demonstrating DAFWA procedures are appropriate and fair to all parties, and supports the delivery of quality regulatory procedures and outcomes across DAFWA.

Cost efficiency and the public interest

In the absence of a policy there can be a tendency to take all charges to court where sufficient evidence exists, even where the offence is trivial or technical or an alternative strategy could deliver a better overall outcome. This is not in the best public interest and is not an effective use of public moneys.

COMPLIANCE AND ENFORCEMENT POLICY

“ENFORCEMENT PYRAMID”

Client Attitude / / DAFWA
Response
Options
Want to comply and do / Continue to educate
Need some help to comply / Educate, monitor, make compliance as easy as possible
Want to comply but fail
MINOR consequences / Educate, monitor, possibly apply administrative sanctions
Want to comply but fail
MAJOR consequences / Educate, monitor, apply administrative sanctions
Only comply when forced / Apply administrative sanctions / infringement notice (if available) / prosecute
Will not comply / Prosecute

1. Compliance

DAFWA administers numerous pieces of legislation relating to agriculture, biosecurity and natural resource protection and conducts its activities and programs with the aim of promoting compliance with this legislation. DAFWA encourages compliance through promotion, education and enforcement.

2. Enforcement - using powers under legislation to address non-compliance

Enforcement is potentially a valuable tool in regulating activities and obtaining compliance with statutory requirements. A range of sanctions may be available, depending upon the legislation that is suspected to have been breached.

2.1. Enforcement principles

In deciding whether enforcement action is appropriate and what measures should be applied, DAFWA will adopt the following principles:

-The enforcement measures applied will be those considered most likely to achieve the best outcome.

-Enforcement action will be appropriate and in proportion to the seriousness (of the consequences) of the alleged offence, consistent with legal requirements.

-Prosecution is an enforcement tool to be employed where it is the appropriate response under the circumstances.

-Officers do not have the authority to condone or authorise the continuation of an offence once detected.

Enforcement action will only be taken when the statutory pre-requisites for that action are satisfied.

DAFWA has discretion to withdraw the enforcement action that has been undertaken. The withdrawal of an enforcement action will be documented.

2.2. Enforcement criteria

Decisions on enforcement action will be taken in accordance with the following considerations:

-Whether there has been failure to comply with any formal request, lawful direction or notice given by an inspector or authorised officer;

- The length of time since the incident and the subsequent behaviour of the alleged offender;

-Any mitigating or aggravating circumstances;

-Any history of previous non-compliance;

-The level of public concern/interest in that type of offence;

-The potential consequence of DAFWA’s failure to respond to non-compliance;

-The need for deterrence of further such offences; and

-The precedent which may be set by any failure to take enforcement action.

2.3. Enforcement actions

Each piece of legislation DAFWA administers defines its own range of potential sanctions. Some, or all, of the following may be applicable depending upon the specific legislation:

Written warning

A written warning is notice to an individual or business that an offence has allegedly been committed. The written warning advises of the nature of the breach or non-compliance, appropriate remedial action and the potential consequences of further non-compliance. The incident must be recorded and may be referred to in the event of further breaches. A written warning may be appropriate when a minor or technical breach has occurred, if the matter is one which can quickly and simply be resolved.

Administrative Sanctions - A statutory notice or direction

Some legislation provides for a notice or direction to be issued requiring particular action in compliance with the legislation. Failure to comply with such a notice constitutes an offence, or if an offence has already been committed, a further offence.

Administrative Sanctions - Revocation of Permits or Licenses

Some legislation allows for the issue of permits, accreditations or licenses to conduct activities in accordance with legislated requirements.Failure to comply with the conditions of the permit, accreditation or licence may result in its revocation.

Court Injunctions

Where urgent action is required, a court injunction may be sought to order an individual or business to undertake or refrain from a certain action. An injunction does not prevent DAFWA from taking further enforcement action in relation to the same incident.

Infringement notice

Some legislation provides for the issue of an infringement notice. An infringement notice allows the receiver to choose whether to have an alleged offence dealt with by a court, or to pay a modified penalty. Payment of a modified penalty is not an admission of guilt and does not result in a conviction.

Prosecution in the courts

Prosecution is an enforcement tool to be employed where it is the appropriate response in the circumstances. A decision to prosecute should only be taken when the evidence is sufficient to support the prosecution and the prosecution is in accordance with the principles below.

Prosecution

3.1 Principles of Prosecution – Criteria Governing the Decision to Prosecute

The decision to prosecute involves consideration of two elements:

(a)whether sufficient evidence exists to justify prosecution; the existence of a prima facie case in conjunction with a reasonable prospect of securing a conviction; and

(b)whether the prosecution is in the public interest.

Consideration of the second element is not necessary until the first element is satisfied.

3.2 Prima Facie Case

A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that an offence has been committed by the alleged offender.

The existence (or otherwise) of a prima facie case should be determined as early as possible in the prosecution process. However, the existence of a prima facie case does not of itself justify prosecution of a matter.

3.3 Prospect of conviction

Consideration must also be given to the prospects of conviction. An investigation and/or prosecution should not proceed if there is no reasonable prospect of a conviction being secured.

The evaluation of the prospect of a conviction requires a thorough examination of the available admissible evidence and any available defence.

3.4 Assessment of evidence leading to prosecution

When evaluating the evidence in a case, an assessment needs to be made on each of the following issues;

1. Essential evidence is admissible.

1. Admissions by the alleged offender have been made voluntarily and are reliable having regard to the age, intelligence and apparent understanding of the alleged offender.

1. Witness statements are reliable and credible and the witness is capable of withstanding a defence cross-examination. The reliability of any witnesses needs to be considered, including the witness’s recall, credibility, the likelihood of exaggeration and any, relationship to the alleged offender.

1. Any conflict between witness statements which may weaken the case. Alternatively, if there is a lack of conflict between eyewitnesses, whether there is anything that may cause suspicion of collusion.

1. All the necessary witnesses will be available and competent to give evidence.

1. If identity is likely to be an issue, the evidence of those who purport to identify the alleged offender is cogent and reliable.

1. Any reasonable lines of defence which are obvious or have been have been indicated by the defendant.

It should be noted that this list is not exhaustive and that the individual circumstances of a matter will dictate the scope of considerations necessary in the decision to prosecute.

3.5 Public Interest

The public interest component dictates that prosecutions are initiated, or continued, only in circumstances where it is apparent that the offences, or the circumstances of its commission, are of such a nature that a prosecution is in the public interest.

The factors to be taken into account when deciding whether or not the public interest requires prosecution will vary from case to case. The following factors, which should be considered at all stages of the process, are some of the considerations which may be relevant in determining whether the public interest requires prosecution of a matter:

1. The seriousness or triviality of the alleged offence or that it is of a “technical” nature only;

1. Any mitigating or aggravating circumstances;

1. The age, mental ability, physical health, mental health or special infirmity of the alleged offender or a witness;

1. The alleged offender’s previous history in relation to relevant compliance activity;

1. The degree of culpability of the alleged offender in connection with the offence;

1. The effect on public order;

1. Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute;

1. The availability and efficacy of any alternatives to prosecution;

1. The prevalence of the alleged offence and the need for deterrence (including the likely deterrent value of the prosecution);

1. Whether the alleged offence is of considerable public/environmental concern;

1. Any entitlement of DAFWA or other person/body to compensation, reparation or forfeiture if a prosecution is secured;

1. The likely length and expense of a trial (if disproportionate to the seriousness of the offence);

1. Whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;

1. The likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court;

1. The necessity to maintain public confidence in DAFWA and the courts; and

1. The potential financial benefit the alleged offender stands to make from the illegal activity.

The relevance and weight of these factors will vary depending upon the particular circumstances of the case.

3.6 Improper considerations

A decision whether or not to prosecute must not be influenced by:

1. The race, religion, gender, national origin or political associations, activities or beliefs of the alleged offender or any other person involved;

1. Personal feelings concerning the alleged offender or their legal representative;

1. Possible political advantage or disadvantage to the Government or any political group or party; and

1. The possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

3.7 Decision / Authority to Prosecute

After due consideration of all the matters identified in 3.1 to 3.6, the Investigating Officer, will refer the brief of evidence and supporting reports, documentation and recommendations to the Director with responsibility for the administration of the relevant legislation. The Director will forward endorsed briefs and recommendations to their Executive Director for referral to the State Solicitors Office.

4. Release of information

4.1Public Release

DAFWA understands that there is often public interest in how it is managing investigations and/or prosecutions. However, the public disclosure of information needs to be balanced against the need to maintain the integrity of the legal process and fairness to all parties involved.

Details of matters under investigation will not generally be publicly released unless this is required by law, or disclosure is in the public interest, or is necessary to complete an investigation.

DAFWA will only issue a statement to media relating to specific incidents after an investigation is complete and only if it is determined to be in the public interest. Specific details, such as the names of persons charged will not be released prior to the matter coming before the Courts.

General details, such as the number of and type of charges, name of defendants and Court dates may be disclosed, if the matter is already before the Courts and it is determined to be in the public interest to do so.

Specific details of matters before the Courts will not generally be publicly released unless this is required by law.

Decisions concerning the public release of information are made at Executive Directorlevel within DAFWA.

A statement to media or the public may be released at the conclusion of a matter, but any statement will not go beyond the facts and comments made in open court.

Only DAFWA Corporate Communications will respond to media enquiries related to investigations and/or prosecutions.

4.2Disclosure

To assist with the efficient operations of the Courts and prevent late pleas of guilty, the prosecution case should be fully disclosed to the defence at the earliest possible, appropriate opportunity.

Further Information

For further information, please contact

Manager, Biosecurity Compliance and Investigations

Department of Agriculture and FoodWA

Phone: (08) 9368 3368

Email:

REFERENCES

Department of Environnent and Conservation Prosecution Policy

Department of Mines and Petroleum

Director of Public Prosecutions (DPP) Prosecution Policy 2005

[1]Legislation Specific Policy – adocument that provides specific instructions for the enforcement of particular piece of legislation. Not every piece of legislation will have a Legislation Specific Policy. These are optional documents prepared when considered desirable or necessary.