This policy outlines how we will recover, so far as is reasonably practical, the regulator’s costs from parties where a breach has occurred, and where mandated under the Health and Safety at Work Act 2015 (HSWA).
The purpose of this policy is to guide how we will recover, so far as is reasonably practical, the regulator’s costs from parties where a breach has occurred, and where mandated under the Health and Safety at Work Act 2015 (HSWA)(external link). This policy concerns section 152 of HSWA(external link), which allows us to seek to recover costs for investigation and litigation.
It is informed by our Cost Recovery Principles, which are provided below.
Scope of the document
- Recovering a debt or costs under HSWA.
- Section 152: recovery of regulator’s costs in bringing a prosecution.
Out of scope
- Other legislation for which WorkSafe is responsible including:
- Electricity Act 1992(external link)
- Gas Act 1992(external link)
- Parts of the Hazardous Substances and New Organisms Act 1996 (HSNO).(external link)
- Our ability to:
- recover costs using a levy under section 201 of HSWA
- charge a fee for services, such as creating and maintaining registers
- or undertaking audits.
- The process Operations, Legal, and Finance will use to recover costs.
Our mandate for cost recovery
This section outlines the sections of HSWA where we have a mandate to recover costs.
Section 121: costs of remedial or other action
We can recover costs when we’ve taken remedial action to make a situation safe.
Section 121 ties ‘reasonable’ to the remedial action we deem necessary to make the situation safe, and where a duty holder is unable, or unwilling, to take appropriate action. Reasonable costs in this context are the costs of remedying the health and safety issue.
Our approach to remedial action is covered in our Remedial Action Policy.
Section 127: contravention of enforceable undertaking
We can recover costs when we take proceedings against someone not fulfilling their enforceable undertakings (EUs).
Section 152: order for payment of regulator’s costs in bringing a prosecution
We can recover all ‘reasonable expenses’ associated with bringing a prosecution. These costs include, but are not limited to:
- using expert witnesses
- preserving an incident scene, transport and storage of evidence, or forensic destruction
- remedial actions
- reports prepared by external experts
- disbursements (including travel) that we reasonably incur in relation to the investigation or prosecution, and
- higher court filing fees (when applicable).
We must be able to demonstrate to the court that our costs are fair and reasonable, given the circumstances of the case.
Section 153: adverse publicity orders
We can recover legal and other costs for pursuing an offender who has not complied with an adverse publicity order.
Our approach to cost recovery
We will only recover costs following a successful prosecution
Section 152 allows us to seek to recover costs for investigation and litigation. We will only do so following a successful prosecution. They will form part of our sentencing submission to a court.
We will recover investigation expenses over and above routine costs
In general, we will seek to recover costs for investigation expenses over and above routine costs.
Wherever possible, costs will be supported by invoices showing the amount to be recovered.
We will recover half our legal litigation costs
We will generally seek to recover half of our legal litigation costs. The courts have confirmed that this approach is appropriate.
Our cost recovery decisions will align with our cost recovery principles
We will use our cost recovery principles as a guide for decision-making.
We will record all costs that could potentially be recovered. The decision-maker will determine whether the costs align with our cost recovery principles and are recoverable.
We can choose not to recover costs
Under the Auditor-General’s guidelines, ‘while an entity may be able to recover its costs fully, it may choose not to’.1
We will consider the circumstances of each case when deciding whether to seek costs, and how much. This may include the defendants’ ability to pay.
1 - The Auditor-General’s Charging fees for public sector goods and services (2008, paragraph 2.5)
Roles and responsibilities
The investigator will record investigation expenses over and above routine costs incurred by the investigation from its beginning.
The Chief Inspector, or Deputy Chief Inspector, will decide which investigative costs should be recovered. If the total amount of investigative costs is significant, it may be appropriate the decision to recover them is endorsed by the relevant Head.
The legal group
The lawyers responsible for the prosecution will record legal prosecution costs that could potentially be recovered.
The Chief Legal Advisor will decide which legal costs should be recovered.
- record costs recovered for each investigation/prosecution to monitor compliance, and
- manage collection processes.
Cost recovery principles
|Authority||There is clear legal authority to recover costs in the circumstances.|
|Shared responsibility and clear accountability||We lead and influence to improve the health and safety system. Cost recovery assists in holding duty holders to account for their responsibilities.|
|Context specific and proportionate||
Our cost recovery choices and decisions consider the particular circumstances of the case. They are proportionate
|Outcome focused||We are constructive and purposeful in our choice of actions, including cost recovery, while being conscious of broader considerations. We prioritise on the basis of risk.|
|Consistent||Consistency is not the same as uniformity. Our decisions on cost recovery are consistent and specific to context.|
|Fair, just, and impartial||We act with integrity. Our cost recovery decisions are accurate, balanced, un-biased, and even handed.|
|Transparent||Duty holders know what to expect from us. We tell them why costs will be recovered, when they will be sought, and how they will be recovered.|
We consider the public interest when seeking cost recovery. Examples include:
Review of this policy
This policy is part of our Practice Framework and will be available externally.
Policy owner: General Manager, Better Regulation and Legal
Policy reviewed: March 2019
Next review date: March 2023
Distribution: This policy will be published on WorkSafe’s website and intranet.