In 2017, Ron Salter, and his waste fuel collection business, Salters Cartage Ltd, were convicted for a series of breaches of the Health and Safety in Employment Act 1992 and the Hazardous Substances and New Organisms Act 1996.
These convictions followed the death of a welding contractor who was killed while undertaking welding work on a Salters’ waste fuel/oil storage tank. Salters conducted welding work on the site without any authorisation or safety oversight. Further, Salters failed to implement its health and safety management system.
Salters was fined $258,750 and ordered to pay reparation of $128,074.21. Mr Salter was personally fined $25,000 and sentenced to four and a half months home detention.
In 2019, the Police commenced proceedings against Mr Salter under the Criminal Proceeds (Recovery) Act 2009 – restraining property and business assets, which have now been valued at approximately $11m. This was the first time that proceedings had been brought under the Act in relation to health and safety offending.
In 2021, the High Court ordered the Commissioner of Police to provide an undertaking that he will comply with any order for damages and costs to compensate Salters for any losses sustained because of the restraining orders sought.
The Commissioner appealed that decision, arguing, amongst other things, that to give an undertaking might dissuade, or have a “chilling effect”, with regards to the Commissioner’s actions in pursuing and administering restraining orders under the Act.
The Court of Appeal, in a decision released on Tuesday, dismissed the Commissioner’s appeal. The Court of Appeal was not satisfied that the Commissioner had established that there would be a chilling effect if an undertaking were imposed. It observed that the Commissioner was confident of a successful outcome in relation to the application for forfeiture orders in this case. Such an outcome would likely be more powerful than any chilling effect from having to provide an undertaking. Accordingly, the Court of Appeal refused to overturn the High Court’s order that the Commissioner provide an undertaking concerning payment of damages and costs sustained as a consequence of the application for restraining orders.
Whether the Commissioner will seek to appeal this decision remains to be seen. However, it must be remembered that arguments over the undertaking are secondary to the key issue as to whether the Act can be used in the context of health and safety breaches.
Comment (Bradley Alcorn)
While technically falling within the ambit of the Act, convictions under the health and safety legislation are generally regarded as regulatory prosecutions, rather than criminal. Further, the process of establishing a link between a company’s assets and its health and safety offending is undoubtedly much more difficult than the usual process of tracking proceeds of crime. It seems that this is an exceptionally long bow to draw for the Commissioner, and a step, that if successful, will have a myriad of unexpected consequences for those who fall foul of our health and safety legislation.