Serious and material public health risks

Part 4 provides the offence framework for possible misconduct under the Act. 

The terms serious or material public health risk are used to capture a wide range of possible conduct.

Part 4 distinguishes risks based on the degree of risk that is or may be caused by the conduct of a person, namely whether the risk is a:

Risk	Definition in the Act
Material public health risk	means a public health risk involving potential harm to public health that is neither trivial nor negligible and includes a public health risk declared by the regulations to be a material public health risk but does not include a public health risk declared by the regulations not to be a material public health risk
Serious public health risk	means a public health risk involving potential harm to public health that is irreversible, of a high impact or on a wide scale and includes a public health risk declared by the regulations to be a serious public health risk but does not include a public health risk declared by the regulations not to be a serious public health risk

This acknowledges the difference in the seriousness of the risks involved. 

There is then a further distinction based on the person’s degree of knowledge as to the outcome or likely outcome of their conduct.

What enforcement action may be taken for offences under Part 4?

Under section 280 of the Act, enforcement agencies may commence prosecutions for offences, including those under Part 4. 

In accordance with section 21(2) of the Criminal Procedure Act 2004 (external site), prosecutions must be commenced within 12 months of the date on which the offence was committed.

Depending on the circumstances, it may also be appropriate to take other action under the Act, such as issuing an improvement notice or an enforcement order. 

Such action, which is focused on addressing the public health risk, can occur irrespective of whether a prosecution is commenced.

What penalties and fines are associated with each risk?

There are three tiers of penalties related to serious and material public health risks, based on the degree of risk to public health, and the knowledge of the person as to the outcome or likely outcome of their conduct. 

For individuals these range from:

• $40,000 to $100,000 for a material public health risk and 
• $50,000 to $250,000 for a serious public health risk. 

Penalties for body corporates are silent under the Act. However, section 40(5) of the Sentencing Act 1995 (external site) provides that body corporates are liable to fines of 5 times the maximum penalty.

It is the determination of the courts to set the penalties associated with a prosecution.