Regulatory Prosecution Defence Melbourne

PRACTICE AREA

A prosecution does not only come from the police. Victorian and national regulators bring their own charges for breaches of the legislation they administer, and those matters are heard in the same courts as criminal charges. Tringali Lawyers defends individuals and businesses facing regulatory prosecution.

Book a Consultation Call 0432 651 326

§The Practice

OVERVIEW

What is a regulatory prosecution?

A regulatory prosecution is a charge brought by a government regulator, rather than by Victoria Police, for a breach of the legislation that regulator administers. WorkSafe, the EPA, the NHVR and the other regulators each have their own investigators, their own powers, and their own offences. The charges are heard in the Magistrates' Court alongside criminal matters, and they are defended the same way.

Regulatory offences are often described as quasi-criminal. The regulator must prove its case to the criminal standard, the matter is listed in the Magistrates' Court, and a finding can result in a conviction being recorded. What differs is who brings the charge and the legislation it is brought under: the Occupational Health and Safety Act 2004 for a WorkSafe matter, the Environment Protection Act 2017 for an EPA matter, the Heavy Vehicle National Law for an NHVR matter, and so on.

The exposure in a regulatory matter is frequently wider than a fine. Many of these offences reach individuals as well as companies, so a director, officer or manager can be charged personally for conduct of the business. A finding can affect a licence, a registration, or the ability to operate, and for some regulators the most serious offences carry imprisonment. The investigation itself often begins long before any charge, through a notice, a request for documents, or a request to attend an interview.

Tringali Lawyers approaches a regulatory prosecution the way it approaches any criminal charge: by reading the regulator's brief closely, identifying each element the regulator has to prove, testing how the evidence was gathered, and giving the client a realistic view of the options. Early advice matters here in particular, because what is said and produced during a regulator's investigation shapes the case that follows.

§The Regulators

THE REGULATORS

The regulators behind a statutory prosecution.

A regulatory prosecution can come from any of a number of Victorian and national regulators. Each enforces its own legislation, but all bring their matters before the same courts as criminal charges.

Heavy vehicle

NHVR

Heavy Vehicle National Law

The National Heavy Vehicle Regulator enforces the Heavy Vehicle National Law, covering fatigue management, mass, dimension and load-restraint limits, and chain of responsibility duties. A chain of responsibility prosecution can reach operators, schedulers, consignors and loaders, not only drivers. Tringali Lawyers defends individuals and businesses facing NHVR prosecution.

Animal cruelty

RSPCA Victoria

Prevention of Cruelty to Animals Act 1986

RSPCA Victoria inspectors investigate and prosecute animal cruelty and aggravated cruelty offences under the Prevention of Cruelty to Animals Act 1986. A finding can carry fines, imprisonment, and an order disqualifying a person from owning or being in charge of animals. The firm acts for people and businesses responding to an RSPCA investigation or charge.

Workplace safety

WorkSafe Victoria

Occupational Health and Safety Act 2004

WorkSafe Victoria prosecutes occupational health and safety offences under the Occupational Health and Safety Act 2004, from breaches of the general duty through to incidents causing serious injury or death. Employers, officers and self-employed people can all be charged, and the most serious matters include workplace manslaughter. The firm defends OHS prosecutions and represents clients through WorkSafe investigations.

Consumer & trade

Consumer Affairs Victoria

Australian Consumer Law · Fair Trading Act 2012

Consumer Affairs Victoria enforces consumer protection law and the licensing regimes for occupations such as estate agents, motor car traders and conveyancers. Prosecutions arise under the Australian Consumer Law, the Fair Trading Act 2012 and the occupational licensing statutes. The firm defends traders and licensed practitioners facing prosecution or disciplinary action.

Fisheries

Victorian Fisheries Authority

Fisheries Act 1995

The Victorian Fisheries Authority prosecutes recreational and commercial fishing offences under the Fisheries Act 1995, including catch and size-limit breaches, prohibited equipment, and offences involving abalone and other protected species. Penalties can be substantial, and equipment and catch can be forfeited. The firm defends clients charged with fisheries offences.

Meat & seafood

PrimeSafe

Meat Industry Act 1993 · Seafood Safety Act 2003

PrimeSafe regulates the meat, poultry, seafood and pet-food industries in Victoria under the Meat Industry Act 1993 and the Seafood Safety Act 2003. It licenses processing facilities and prosecutes licensing and food-safety offences. The firm acts for operators and licence-holders responding to a PrimeSafe investigation or prosecution.

Agriculture & biosecurity

Agriculture Victoria

Livestock, biosecurity and chemical-use legislation

Agriculture Victoria enforces a range of agricultural and biosecurity legislation, covering livestock disease control, pest plants and animals, domestic animal businesses, and the control of agricultural and veterinary chemicals. Prosecutions can affect farmers, agribusinesses and rural landholders. The firm defends clients facing an Agriculture Victoria prosecution.

Environment

EPA Victoria

Environment Protection Act 2017

The Environment Protection Authority prosecutes pollution and waste offences under the Environment Protection Act 2017, including breaches of the general environmental duty, unlawful disposal of waste, and aggravated offences. Penalties for businesses and individuals are significant, and serious offences can carry imprisonment. The firm defends EPA prosecutions and advises clients during EPA investigations.

§The Defence

DEFENCE PATHWAYS

How a regulatory prosecution is defended.

Realistic options depend on what the regulator can actually prove. The starting point is the brief, not the regulator's account of the matter.

Scrutinising the investigation

Regulators have broad investigation powers: notices to produce documents, powers of entry, and requests to attend interviews. How that material was obtained, and whether the regulator stayed within its powers, can be decisive. The investigation is examined as closely as the charge.

Testing the elements

A regulatory offence has elements the regulator must prove to the criminal standard. Many of these offences turn on technical questions: who held the relevant duty, what was reasonably practicable, whether a defence under the legislation applies. Each element is tested against the evidence.

Negotiated outcomes

Some regulators can accept an enforceable undertaking or resolve a matter without a contested hearing. Whether that is available, and whether it is the right outcome, depends on the regulator, the conduct, and the client's circumstances. It is assessed once the brief has been reviewed.

Plea in mitigation

Where liability is accepted, a carefully prepared plea can materially affect the penalty and whether a conviction is recorded. Mitigation covers the steps taken since the conduct, the compliance history, and the consequences a finding would carry for a licence or a business.

OUR APPROACH

A regulator's brief is tested the same way a police brief is: element by element, against what the evidence actually shows.

Talia TringaliPrincipal

HOW WE WORK

Three steps from notice to outcome.

Early advice
Regulatory matters often begin before any charge, with a notice, a request for documents, or a request to attend an interview. Advice at that stage shapes everything that follows.
Brief review and strategy
We review the regulator's brief, identify each element it has to prove, and advise on the realistic range of outcomes and what each option would involve.
Representation through to outcome
We appear at each court date, keep you informed between hearings, and carry the matter through to its conclusion.

FAQS

Common questions about regulatory prosecutions.

Regulatory offences are quasi-criminal: they are prosecuted to the criminal standard in the Magistrates' Court, and a finding can result in a conviction being recorded.

A regulatory prosecution is brought by a regulator rather than by Victoria Police, but it is dealt with much like a criminal charge. The regulator must prove each element of the offence beyond reasonable doubt, the matter is listed in the Magistrates' Court, and the court can impose fines and, for serious offences, imprisonment. A finding can result in a conviction being recorded, which is why these matters are defended with the same rigour as a criminal charge.

Get legal advice before you attend. Regulators have coercive investigation powers, and what is said in an interview becomes part of the brief; advice first means you understand your position and any protections that apply.

Many regulators can compel a person to attend an interview or produce documents, and the rules differ from a police interview. Some answers may be required by law, and some protections may apply to how those answers can later be used. Because what is said and produced during the investigation becomes part of the brief, it is important to obtain advice before attending, so you understand your obligations, your position, and what protections are available. Contact the firm before the interview date.

Sometimes. Several regulators can accept an enforceable undertaking or resolve a matter short of a contested hearing, depending on the regulator, the conduct, and the circumstances.

Not every regulatory matter ends in a contested hearing. Depending on the regulator, an enforceable undertaking, an agreed resolution, or a negotiated outcome may be available as an alternative to prosecution or as a way of narrowing the matter. Whether any of those options is open, and whether it is the right outcome, depends on the regulator involved, the seriousness of the conduct, the client's compliance history, and what the brief shows. It is assessed after the brief has been reviewed.

It can. For many regulators the consequences for a licence, registration or the ability to operate are a larger exposure than the fine itself, and they are factored into how the matter is run.

For a licensed trade, a registered facility, or an accredited operator, a regulatory finding can carry consequences well beyond a fine: a licence or registration can be affected, and in some industries a finding can affect the ability to keep operating. Directors and officers can also be affected personally. These secondary consequences are often the most significant part of the matter, and they are considered from the outset in deciding how to respond and how to run the case.

WHAT'S NEXT

Facing a regulator?

Whether you have received a notice, a request to attend an interview, or a charge, we respond to new enquiries the same business day. Book a consultation and we will tell you what the process looks like and what your options are.