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Guidelines for prosecutions

These guidelines provide information about the way prosecutions are conducted by Workplace Health and Safety Queensland (WHSQ). These guidelines are in accordance with section 230(3)(a) of the Work Health and Safety Act 2011 (the WHS Act).

The National Compliance and Enforcement Policy outlines the aims of compliance and enforcement as well as the tools available to work health and safety regulators. The policy also sets out general information about prosecutions, including the criteria used by regulators to determine whether or not to initiate prosecution and the timeframes for initiating such action.

The decision to prosecute (or not to prosecute) must be based upon the evidence, the law and Director of Public Prosecutions Guidelines.

It should be noted that prosecutions will continue under the Workplace Health and Safety Act 1995 for matters that occurred prior to the repeal of that Act.

Courts

Prosecutions for work health and safety laws are heard in the following courts:

  • District Court for a category 1 offence
  • Magistrates Court of Queensland for:
    • category 2 and 3 offences
    • contraventions of enforceable undertakings
    • contraventions of a civil penalty provision
    • all other offences.

Prosecution initiation

The Executive Director and the Director, Legal and Prosecution Services, WHSQ, are delegated, on behalf of the Deputy Director-General (the Regulator), Office of Industrial Relations, to make decisions to commence prosecutions. The Executive Director is delegated with authority to authorise an inspector to take proceedings for an offence under the WHS Act.

Prosecutions for matters that are heard before the Magistrates Court of Queensland are initiated by a complaint being laid and filed with the Court's registry. WHSQ will serve a copy of the complaint and summons on the defendant. Service may be effected by way of delivery in-person or via registered post to the defendant. The summons will indicate the return date and place that the defendant is required to appear i.e. the applicable Courthouse, court room, street address, time and date.

Prosecutions for matters that are heard before the District Court (category 1 offences) are commenced by way of indictment. These matters are referred by WHSQ to the Department of Public Prosecutions who initiate the prosecution actions.

Court response

Once the complaint has been responded to, by way of both parties presenting at the court, the court will govern the course the matter will take. This will depend on the court and what approach the parties take to the matter (e.g. if the defendant chooses to enter a guilty plea or seeks to adjourn the matter to a later date and time).

A range of direction orders may be made by the court (e.g. a direction hearing may be held and a variety of orders may be made at that time, including the exchange of material).

If the defendant enters a plea of guilty to the offence, the matter is usually set down for sentence hearing or may be heard on the date that the plea is entered. If the defendant enters a plea of not-guilty, the matter is set down for a trial/hearing.

Depending on the matter to be heard, a trial/hearing may take a day, several days or longer and may be split during a period of weeks or months (e.g. the matter may be part heard in May and then adjourned until August for further hearing).

If a trial/hearing is held, the court may choose to deliver its decision on the final day of the trial/hearing or may reserve the decision for a later time, dependant on the complexity of the matter and the court's availability.

Steps in the court process

Category 1 offences have a committal procedure in Magistrates Court of Queensland. If it is determined that there is a case to answer, the matter is remitted to the District Court of Queensland for a hearing/trial. These matters are heard before a judge and a jury.

All matters set before the Magistrates Court of Queensland (category 2 and 3 offences, contraventions of enforceable undertakings and all other offences) are heard by an individual Magistrate and not before a jury.

In both these courts, the Magistrate or Judge can make certain orders that may relate to a case, for example, the exchange of material. Further, the Magistrate or Judge can adjourn the matter to another date and time and set the matter down for trial.

When a matter is first heard before the Magistrates Court of Queensland, this may be referred to as the 'first mention' or 'first call-over' of the matter. These mentions or call-overs are then referred to by way of number. For example, second, third, fourth mention etc. until a hearing/trial date is set.

Sentencing options

A range of sentencing options is available to magistrates or judges in Queensland under the WHS Act and Penalties and Sentences Act 1992(the Penalties Act), including:

  • imprisonment
  • monetary fines
  • probation
  • community service
  • a good behaviour bond
  • restitution.

The WHS Act also provides for:

  • adverse publicity orders
  • restoration orders
  • training orders
  • a court-ordered WHS undertaking
  • work health and safety project orders.

Appeals

Most appeals from decisions made by the Magistrates Court of Queensland are heard before the District Court of Queensland. This is in accordance with the Justices Act 1886 (the Justices Act).

Records of court process and decisions

Decisions handed down by the Magistrates Court of Queensland are not published by the Court in the first instance. Transcripts of the sentencing remarks can be purchased from the State Reporting Bureau, via telephone (07) 3247 4360. Judgements are published for criminal trials on appeal.

Publication of prosecution outcomes

Prosecution outcomes are published by WHSQ in accordance with the publishing policy.

Recording of convictions

It is part of the Magistrate's or Judge's discretion to record a conviction in accordance with section 12 of the Penalties Act.

Requests for a prosecution to be brought

The work health and safety laws outline certain circumstances in which a person may request the regulator to bring a prosecution.

Information about the status of court proceedings

The Investigations Liaison and Support Officer within WHSQ will provide the next of kin of a worker fatally injured, or the carer of a person very seriously injured in a workplace incident, with information about the status of court proceedings.

Last updated
24 August 2016

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