Enforcement Policy

Environmental Health Enforcement Policy

1.Purpose

The purpose of this policy is to:

  • Ensure that enforcement action is proportionate to the alleged offence in each case
  • Carry out our duties in a fair, equitable and consistent manner
  • Be transparent in dealing with our customers
  • Work with others and develop effective partnerships in achieving these aims

2.Policy principles

We will provide information and advice in plain language about the legislation we apply and will publicise this as widely as possible. We will discuss general issues and specific problems with anyone experiencing difficulties.

Helpfulness

We will provide a courteous, efficient and helpful service. Our staff will identify themselves by name and provide a contact point and telephone number for further dealings with us. We will ensure that our enforcement services are effectively co-ordinated to minimise unnecessary delays.

Feedback

We will actively seek the views of those that receive our services and use this information to develop our service. We will provide well publicised, effective and timely complaints procedures that are easily accessible to all our customers.

Fairness and Risk

We will minimise the cost of compliance by ensuring that any action we require is proportionate to the seriousness of the breach of legislation. As far as the law allows we will take account of the circumstances and attitude of offenders when considering action. We will listen to the views of those who have been affected by the problem that we have been investigating.

Targeting

We will prioritise our activities according to the seriousness of the problem and the degree of benefit experienced by our customers as a result of successful resolution. We will make regular assessments of our resources and allocate them to support these priorities.

Corporate Enforcement

We will work with other sections, departments and authorities towards effective enforcement activity. We will do this by means of exchanging information and joint working initiatives.

3.Background information

This policy provides guidance on the use of compliance and enforcement provisions of legislation administered by the Environmental Health Team. The document will also assist business and the community to understand responses by the Environmental Health Team to compliance and enforcement issues.

This policy does not override or limit the discretion of Council to take action as it sees fit under legislation administered by the Environmental Health Team.

4.Definitions

5.Policy detail

Enforcement decisions must be fair, consistent, balanced and relate to common standards that ensure the public is adequately protected.

In coming to a decision on the most appropriate means of enforcement, the officer shall consider, amongst other relevant factors, the following;-

  • the seriousness of the offence
  • the degree of wilfulness involved
  • the offender’s past history
  • the consequences of non-compliance
  • the likely effectiveness of the various enforcement options
  • deterrence
  • consistency of approach to similar breaches/offences

Factors to be ignored when choosing an enforcement strategy:-

  • any element of discrimination or bias against the person such as ethnicity, nationality, political association, religion, gender, sexuality or beliefs
  • personal association or relationship with the alleged offender or any other person involved
  • possible political advantage or disadvantage to a government or any political group or party

Enforcement options include;-

No action

It may be appropriate to take no action when;-

  • The alleged offence is outside of our area of operation or is trivial in nature
  • On investigation breaches of the legislation are not discovered
  • Taking action may prejudice more major considerations
  • There is insufficient facts and information to warrant that an offence or wrong has been committed or that the responsible person can be identified

Education

The Environmental Health Team uses education as a tool to enhance compliance by informing businesses and the public about legislative and other requirements, and by guiding them to relevant sources of information. This is achieved by various means including media releases, newsletters, Council’s web site and appearances at business and public gatherings.

Training

Training is often associated with food business inspections to raise the skills and knowledge of food handlers to improve compliance with relevant food safety standards. The Environmental Health Team observes business trends and implements workshops and training opportunities as a tool to achieve improvement in areas of poor performance.

Informal action

Informal action to achieve compliance with legislation may include the following;-

  • Offering verbal or written advice
  • Verbal warnings and requests for action
  • Written warnings

Advice from officers will be put clearly and simply and will be confirmed in writing.

Written documentation will:

  • Include all the information necessary to make clear what needs to be done to comply with legal requirements, within what time and where necessary, why
  • Include the legislation contravened, measures necessary to ensure compliance and the consequences of non-compliance
  • Clearly differentiate between legal requirements and recommendations of good practice

The circumstances in which informal action may be appropriate include;-

  • The act or omission is not serious enough to warrant formal action
  • The offender’s past history reasonably suggests that informal action will achieve compliance
  • Confidence in the individual/organisation is high
  • The consequences of non-compliance will not pose a significant risk
  • Where informal action may prove more effective than a formal approach. This may be particularly relevant in the case of voluntary organisations using volunteers
  • Where statutory action is not possible, but it would be beneficial in a wider public health context to urge a particular outcome

Mediation

A mediation service is available. Mediation is a possible alternative where, after investigation, an officer determines that the problems being complained of are incapable of resolution through other formal or informal means. The use of mediation services may also be appropriate where an aggrieved individual has no wish to pursue action to resolve a complaint by legal means.

Formal action

Service of statutory Notices

We will serve statutory Notices where we have a duty to do so unless there are good reasons for not doing so. In inspecting public health activities the Department has available a wide range of statutory Notices and uses these in accordance with this policy.

Where an offence has been committed we may issue an Expiation Notice in addition to service of a Statutory Notice. We will normally only do this where the conduct of the recipient justifies taking both steps. Notices generally ask for work to be carried out, ranging from minor to substantial. Some Notices ask for activities to be modified, or to cease.

Notices require the recipient to comply with the terms of the Notice. Most Notices allow a lesser or greater amount of time for this, depending on the urgency of the matter. Some Notices however, require immediate action to resolve a situation.

In most cases the person receiving the Notice has a right of appeal to the appropriate court if the Notice is considered unreasonable. If a Notice is served for which an appeal is possible, the officer will advise the recipient in writing of the right to appeal and the relevant legal provisions at the time of service of the Notice.

Failure to comply with some Notices allows us to consider expiation or prosecution as well as taking action in default. We will normally only do this where the conduct of the recipient justifies taking both steps. We will have regard to factors such as giving false information, the obstruction of Council staff and the harm or risk of harm caused by the recipient’s delay.

Action in default

We will consider the use of this option to secure compliance with the requirements of statutory Notices where the necessary actions or obligations have not been carried out in the time allowed without good reason and action in default is provided for by legislation. Before doing the works ourselves we will consider whether there is a realistic prospect the person responsible will complete the works within a reasonable time. Where we carry out works in default we will seek to recover all our costs over a fair period, using all statutory means available.

The decision to carry out action in default will be made by the Chief Executive Officer or Delegate in consultation with the Authorised Officer.

Making Orders

We will consider the following options individually or collectively with other enforcement action as particular circumstances warrant;-

  • Prohibition Orders:-

To limit the handling of food on specified (food) premises, within a specified vehicle or in a specified way or to limit the use of specified equipment.

  • Directions:-

That premises, unfit for human habitation, not be occupied.

Prohibition Orders and Directions will only be used where there is serious danger to public health. The decision to adopt this course of action will be taken by the Chief Executive Officer or Delegate in consultation with the Authorised Officer.

Service of an expiation notice

Expiation Notices may be appropriate for minor breaches of legislation.

The following circumstances are likely to warrant an Expiation Notice;-

  • A failure to correct an identified problem after having been given reasonable opportunity to do so by an Authorised Officer
  • A failure to comply with the requirements of a Statutory Notice
  • Confidence in the individual/organisation is low
  • A warning has been given for a similar offence.

A person receiving an Expiation Notice is entitled to elect to be prosecuted for the alleged offence hence there must be substantial, reliable and admissible evidence that an identifiable person or organisation has committed the alleged offence.

Prosecution

Prosecutions will not be used as a punitive response to minor breaches of legislation. A prosecution must only proceed where there is a reasonable prospect of a conviction being secured.

The following circumstances are likely to warrant a prosecution;-

  • A flagrant breach of the law such that health, safety and welfare have been put at risk
  • A failure to correct an identified serious problem after having been given reasonable opportunity to do so
  • A failure to comply with the requirements of a Statutory Notice
  • A history of similar offences
  • An unwillingness, on the part of the individual or business, to prevent a recurrence of the problem

Where circumstances warrant a prosecution all relevant evidence and information must be considered to enable a consistent, fair and objective decision to be made.

Before a prosecution is recommended there must be substantial, reliable and admissible evidence that an identifiable person or organisation has committed the offence.

A decision to prosecute must be in the public interest. In considering whether prosecution is in the public interest, the following additional factors should be considered;-

  • Whether the offence was premeditated
  • The need to influence the offenders future behaviour
  • The effect on the offenders, or a witnesses, physical or mental health, balanced against the seriousness of the offence
  • The availability and efficacy of any alternatives to prosecution
  • The prevalence of the alleged offence and the need for deterrence, both personal and general
  • The likely length and expense of a trial
  • Whether the alleged offence is triable only on indictment

Where a prosecution is considered, regard must be had when assessing any negligence to the fact that the investigating officer has the benefit of hindsight.

The final decision to prosecute will be made by the Chief Executive Officer or Delegate in consultation with Council’s Solicitors.

The electronic copy is the approved version.

Before using a printed copy, verify that it is the current version.

1Date Printed: 19 September 2018

Enforcement Policy

6.References

This procedure has been based on the procedure developed by:

  • Environmental Health Australia (SA Branch)

7.Attachments

Responsible officer(s)/department(s): / Procedure author and department
Community Health
Adopted/approved by: / CEO (via CMG), General Manager
Directors Group
Date adopted/approved: / 4 September 2014
Next review: / Month and year
4 September 2015
Date(s) of previous review(s): / Amendment date(s)
insert text here
ECM Doc Set ID / All adopted/approved procedures must be registered in DataWorks
2746468

The electronic copy is the approved version.

Before using a printed copy, verify that it is the current version.

1Date Printed: 19 September 2018

Enforcement Policy

The electronic copy is the approved version.

Before using a printed copy, verify that it is the current version.

1Date Printed: 19 September 2018