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143: Prosecutions by regulator
or “Regulator's exclusive right to prosecute, with exceptions”
You could also call this:

“Filing a private prosecution when regulators don't take action”

You can file a charging document for an offence under this Act if you’re not the regulator. But you can only do this if the regulator and other agencies haven’t taken action and don’t plan to. You also need to have received a notice from the regulator saying that no one is taking action.

If someone has died, and that’s why the regulator or agency can’t take action, it’s treated as if they were planning to take action.

Even if another agency is taking action, you might still be able to file a charging document. You need to get permission from the court and have a notice from the regulator saying they’re not taking action.

If you want to file a charging document, you might need to show the judge the evidence you plan to use in court.

When deciding if you can file a charging document, the judge will think about whether it fits with the purpose of this Act and if it’s in the public interest.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

Next up: 145: Continuing or repeated matters

or “Repeated safety issues can lead to multiple enforcement actions”
Next

Part 4 Enforcement and other matters
Criminal proceedings

144Private prosecutions

  1. A person other than the regulator may file a charging document in respect of an offence under this Act if—

  2. the regulator has not taken, and does not intend to take, enforcement action against any person in respect of the same incident, situation, or set of circumstances; and
    1. a regulatory agency has not taken, and does not intend to take, prosecution action under any other Act against any person in respect of the same incident, situation, or set of circumstances; and
      1. any person has received notification from the regulator under section 142(2)(b) that neither the regulator nor a regulatory agency—
        1. has taken enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances; and
          1. intends to take any enforcement action or prosecution action.

          2. For the purposes of subsection (1), if the regulator or a regulatory agency is unable to take enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances because the person is dead, the regulator or regulatory agency (as the case may be) must be treated as intending to take enforcement action or prosecution action.

          3. Despite subsection (1)(b), a person other than the regulator may file a charging document even though a regulatory agency has taken or intends to take prosecution action if—

          4. the person has leave of the court; and
            1. the person has received notification from the regulator under section 142(2)(b) that the regulator has made a decision not to take enforcement action in respect of the same incident, situation, or set of circumstances.

              1. If a person applies for leave under subsection (3)(a), the Registrar must refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial, or such part of that evidence that the person considers is sufficient to justify a trial.

              2. Section 26(2) to (5) of the Criminal Procedure Act 2011 applies to an application for leave under subsection (3)(a) with the following modifications:

              3. a reference to accepting a charging document for filing must be read as if it were a reference to granting leave:
                1. in determining whether the proposed prosecution is an abuse of process in accordance with section 26(3)(b) of that Act, the Judge must take into account—
                  1. whether allowing the proposed prosecution to proceed would be consistent with the purpose of this Act; and
                    1. whether the proposed prosecution is in the public interest.

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