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Cause to prosecute

Workplace Health and Safety Queensland (WHSQ) actively draws public attention to individuals and organisations it successfully prosecutes for breaching the Work Health and Safety Act 2011 (the WHS Act).

Deciding to prosecute

The decision to bring a prosecution for a breach of work health and safety (WHS) legislation is a significant one and the effect of this decision on those impacted (e.g. the defendant, an injured worker, or the family of a deceased worker) is likely to be considerable.

When deciding to initiate or proceed with a prosecution, each regulator applies guidelines, from the Director of Public Prosecution (DPP), specific to its jurisdiction. In applying these guidelines, the Queensland Office of Industrial Relations (OIR) operates within a broader prosecutorial framework as part of the criminal justice system and requires the highest standard of integrity to be applied to prosecutorial decision-making. The Australian DPPs have however agreed on a common set of principles that are to be used.

These are:

  • existence of a prima facie case, that is, whether the evidence is sufficient to justify the institution of proceedings.
  • reasonable prospect of conviction, that is, an evaluation of how strong the case is likely to be when presented in court. This takes 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, and the admissibility of any confession or other evidence, and any lines of defence available to the defendant
  • public interest test which may include (but is not limited to) 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 obligation 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.

Time limits for proceedings

For WHS offences, the time for the regulator to bring charges against a person is limited. Proceedings for a criminal offence under WHS laws may be brought within the latest of the following:

  • within two years after the offence first comes to the regulator'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 the WHS Act
  • within six months of a contravention of an enforceable undertaking (or within six months of the regulator becoming aware that the undertaking has been contravened)
  • 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 that could not reasonably have been discovered within the limitation period.

Proceedings for a contravention of a civil penalty provision may be brought within two years after the regulator first becomes aware of the contravention. Under the WHS laws, civil penalties only apply to provisions associated with work health and safety entry permit holders.

Last updated
21 December 2015

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