Prosecutions may be brought in relation to alleged breaches of offence provisions in the Work Health and Safety(WHS) or Dangerous Substances laws.
The question of whether to bring a prosecution for a breach of the laws is a significant one as the effect on those impacted by the decision (the defendant, worker or family of a deceased worker for instance) will be considerable. WorkSafe operates within a broader prosecutorial framework as part of the criminal justice system that requires the highest standard of integrity to be applied to prosecutorial decision making.
WorkSafe applies The Prosecution Policy of the Australian Capital Territory in making decisions on whether to refer a matter to the Director of Public Prosecution.
In determining whether or not to prosecute, three criteria need to be met:
- the existence of a prima facie case, that is, whether the evidence is sufficient to justify the institution of proceedings
- a reasonable prospect of conviction, that is, an evaluation of the likely strength of the case when it is presented in court (taking into account such matters as the availability, competence and credibility of witnesses and their likely impression on the court or tribunal that will determine the matter, the admissibility of any confession or other evidence, and any lines of defence available to the defendant)
- a public interest test which may include the following considerations:
- the seriousness or, conversely, the triviality of the alleged offence or whether it is only of a technical nature
- any mitigating or aggravating circumstances
- the characteristics of the duty holder—any special infirmities, prior compliance history and background
- the age of the alleged offence
- the degree of culpability of the alleged offender
- whether the prosecution would be perceived as counter-productive, that is, by bringing the law into disrepute
- the availability and efficacy of any alternatives to prosecution
- the prevalence of the alleged offence and the need for deterrence, both specific and general
- whether the alleged offence is of considerable public concern
Limited timeframes for prosecution
Proceedings for a criminal offence under work health and safety laws may be brought within the latest of the following:
- within two years after the offence first comes to the WorkSafe ACT’s attention
- within one year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act
- within six months of a contravention of an enforceable undertaking
- if an offence relates to reckless conduct that creates a risk of death or serious injury/illness, at any time thereafter if fresh evidence is discovered
Proceedings for a contravention of a civil penalty provision may be brought within two years after WorkSafe ACT first becomes aware of the contravention.
Publishing enforcement actions and outcomes
WorkSafe publicises information about its enforcement actions in order to raise awareness of work health and safety or dangerous substances laws, the consequences of non-compliance and for the purposes of preventing similar offences from occurring.
At all times, WorkSafe aims to be accurate, impartial, balanced and fair in the way in which it communicates about investigations, inspections, audits and enforcement actions.
Procedure if prosecution is not brought by WorkSafe ACT
Another person (the applicant) may make a written request to WorkSafe ACT to refer a matter to the Department of Public Prosecutions (DPP) if the applicant reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 or a Category 2 offence (as defined in the WHS legislation) and no prosecution has been brought
The request needs to be received no later than 12 months after the occurrence.
Within 3 months after WorkSafe ACT receives a request it will advise the applicant (in writing) whether the investigation is complete and whether WorkSafe has referred or will be referring the matter to the DPP or the reasons for not referring.
If WorkSafe ACT advises the person that the regulator will not be referring a matter concerning a Category 1 or Category 2 offence to the DPP, the regulator must advise the person that the person may ask the regulator to refer the matter to the DPP for consideration and if the person makes a written request to the regulator to do so, refer the matter to the DPP within 1 month of the request.
The DPP must consider the matter and advise (in writing) WorkSafe ACT as soon as practicable as to whether the DPP considers that a prosecution should be brought.
If the DPP considers that a prosecution should not be brought, WorkSafe ACT must ensure that written reasons for the decision are given to the person who made the request and the person who the applicant believes committed the offence. If the regulator declines to follow the advice of the DPP to bring a proceeding, the regulator must give written reasons for the decision.
Classification of offences
Category 1 – Reckless conduct
A person commits a Category 1 offence if the person has a health and safety duty and the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and the person is reckless as to the risk to an individual of death or serious injury or illness.
Category 2 - Failure to comply with health and safety duty
A person commits a Category 2 offence if the person has a health and safety duty and the person fails to comply with that duty and the failure exposes an individual to a risk of death or serious injury or illness.
List of prosecutions
To explore a list of prosecutions are available, please click here.
Explore the following pages under this section to obtain more specific information:
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