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Request that the regulator commences a prosecution - Work health and safety (WHS)

Overview

This information provides guidance for any person who wishes to request that the Work Health and Safety regulator prosecute another person for an alleged offence. In particular, it outlines:

  • the types of offences that can be the subject of a request
  • when a request can be made
  • how to make a valid request
  • what happens after a request is made
  • contact details for any enquiries.

Background

Under section 231 of the Work Health and Safety Act 2011 (the WHS Act) , a person may request that a prosecution be commenced for:

  • an alleged category 1 offence
  • an alleged category 2 offence
  • an alleged offence of industrial manslaughter against a person conducting a business or undertaking (PCBU)
  • an alleged offence of industrial manslaughter against a senior officer of a PCBU.

A request can be made after six months, but not later than 12 months, after the alleged offence/incident occurred.

Similar rights in relation to the same offences exist under the Electrical Safety Act 2002 () .

Note: any reference below to alleged offences under the WHS Act applies equally to alleged offences under the Safety in Recreational Water Activities Act 2011. The procedure under section 231 of the WHS Act only applies to alleged category 1, category 2 or industrial manslaughter offences. These offences are the most serious offences under the WHS Act. It does not apply to alleged category 3 offences which occur where a person has a health and safety duty and they fail to comply with that duty.

Category 1 offence – section 31 WHS Act

A category 1 offence is described as “reckless conduct”.

It applies to “a person” – this can be an individual (e.g. sole trader) or a corporate entity (e.g. a corporation).

A person commits a category 1 offence if the person:

  • has a health and safety duty
  • without reasonable excuse, engages in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness
  • is reckless as to the risk to an individual of death or serious injury or illness.

Category 2 offence – section 32 WHS Act

A category 2 offence is described as “failure to comply with a health and safety duty.”

It applies to “a person” – this can be an individual (e.g. sole trader) or a corporate entity (e.g. a corporation).

A person commits a category 2 offence if the person:

  • has a health and safety duty
  • fails to comply with that duty
  • that failure exposes an individual to a risk of death or serious injury or illness.

Industrial manslaughter offence (PCBU) – section 34C WHS Act

This section applies to a person conducting a business or undertaking (PCBU) () . The definition of a PCBU can be found in section 5 of the WHS Act.

A PCBU commits the offence of industrial manslaughter if:

  • a worker dies while carrying out work for the business or undertaking or is injured while carrying out work for the business or undertaking and later dies
  • the PCBU’s conduct causes the death of the worker
  • the PCBU is negligent about causing the death of the worker by the conduct.

Industrial manslaughter offence (senior officer) – section 34D WHS Act

This section applies to a senior officer of a PCBU. The definition of a senior officer can be found in section 34A(1) of the WHS Act.

A senior officer commits the offence of industrial manslaughter if:

  • a worker dies while carrying out work for the business or undertaking or is injured while carrying out work for the business or undertaking and later dies
  • the senior officer’s conduct causes the death of the worker
  • the senior officer is negligent about causing the death of the worker by the conduct.

When can you make a request?

A person can make a section 231 request if:

  • the person reasonably considers that an incident constitutes a category 1, category 2 or industrial manslaughter offence

and

  • the request is made no earlier than 6 months but no later than 12 months after the alleged offence in question

and

  • the regulator has not yet commenced prosecution action.

How to make a valid request for prosecution under section 231

To make a valid request for the regulator to commence a prosecution for a matter you need to:

  • provide your full name and contact details
  • provide details of the workplace where the offence/incident allegedly occurred
    • the name of the employer, business
    • location/street address
  • provide details of the alleged offence/incident
    • date of the incident, and if possible the time of day when the incident occurred
    • identify people involved, either by name or position, or both
    • describe the alleged breach – what happened? What should have happened?

make the request in writing to either:

Email

Legal.andProsecutionServices@oir.qld.gov.au

Mail

Prosecution Services
Office of Industrial Relations
PO Box 101119
Brisbane Adelaide Street, QLD 4000

What happens after submitting your request?

Initial response and advice

The regulator must write to you within three months of receiving your request, advising:

    • whether the investigation is complete
    • if the investigation is complete, whether a prosecution has been or will be brought
    • if a prosecution will not be brought, giving reasons for that decision.
  • The regulator must also write to the person who you believe committed the alleged offence, providing the same information, within the same three months' timeframe.

Referral to the Director of Public Prosecutions (DPP)

  • If the regulator decides not to commence a prosecution, you have the option of requesting that the regulator refer the matter to the Director of Public Prosecutions (DPP) for consideration (‘referral request’). The DPP is the independent prosecution authority in Queensland.
  • The regulator must refer the matter to the DPP within one month of receiving your referral request.
  • The DPP must provide written advice to the regulator within one month of referral.

The regulator must provide a copy of the DPP’s advice to both you and the person who you believe committed the alleged offence.

Further action by the regulator

  • If the DPP recommends prosecution of the alleged offence, but the regulator declines to follow this advice, the regulator must provide written reasons for this decision to both you and the person who you believe committed the alleged offence.

DPP prosecution

  • The DPP can decide to commence a prosecution even if the regulator decides not to prosecute.

Confidentiality of information

The regulator will keep your details confidential to the extent required and permissible by law. Section 271 of the WHS Act (confidentiality of information) outlines requirements and provisions relating to the protection and use of information obtained under a power or function of the WHS Act.
To properly investigate some matters, it may be necessary to disclose some of the details of the information you have provided to another person or entity, therefore your identity may become known. Section 231 of the WHS Act also requires the regulator to tell the person who you believe committed the offence about the request for prosecution and the regulator's decision on the matter.

Enforceable undertakings

The regulator will not enter into any proposed enforceable undertaking until the request under section 231 of the WHS Act has been assessed and determined.

Contact details

If you are seeking information or want to raise a concern about a current investigation being undertaken by the regulator, please phone 1300 362 128.

Last updated
02 July 2018

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