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Request that the regulator commences a prosecution

A person can request that the regulator commences a prosecution if they believe a category 1 or 2 offence of the Work Health and Safety Act 2011 (the WHS Act) has occurred and the regulator has not commenced a prosecution between 6 and 12 months of the offence occurring.

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

The procedure under section 231 of the WHS Act only applies to Category 1 or 2 offences, which are the most serious criminal offences under the WHS Act. These offences are provided for under sections 31 and 32 of the WHS Act respectively.

Category 1 offences

A Category 1 offence occurs when a person (both a natural person and otherwise a legal entity such as a corporation) has a health and safety duty, and without reasonable excuse, the person 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. Prosecutions for a Category 1 offence are expected to be fairly rare.

Other offence categories

A Category 2 offence occurs where a person has a health and safety duty and fails to comply with that duty, and the failure exposes an individual to a risk of death or serious injury or illness.

There is a further category of offence, Category 3, which occurs where a person has a health and safety duty and the person fails to comply with the duty. The Category 3 offence is not covered by section 231 of the WHS Act.

Making a request

The request for prosecution should refer to section 231 of the WHS Act and state that it is a request under that section. To assist the regulator in assessing and progressing your request you should set out the facts of the event, including:

  • the date
  • the place
  • the names of the people concerned
  • the nature of the offence you believe has occurred
  • the identity of the person you believe committed the offence
  • your contact details (so that the regulator can contact you to obtain further information)
  • a statement or other information in support of your request (if the regulator asks you to provide one).

A request must be in writing and could be in the form of a letter, fax or email. The request must be made to the regulator after 6 months but not later than 12 months after the act, matter or thing has occurred.

To request the regulator to commence a prosecution, you can:

Phone

1300 362 128

Fax

Fax to 07 3247 0297

Email

Email us whsq.aaa@oir.qld.gov.au

Mail

The Regulator
Workplace Health and Safety Queensland
Advisory and Assessment Centre
PO Box 820
Lutwyche Qld 4030

After your application

The regulator will maintain confidentiality over your details to the extent required and permissible by law. Section 271 of the WHS Act entitled 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 to another person some of the details of the information you have provided, therefore your identity may become known. Section 231 of the WHS Act also requires the regulator to tell the person whom you believe committed the offence about the request for prosecution and the regulator's decision on the matter. The regulator must provide a written response to a request within three months, and must advise you whether the investigation is complete, and, if it is complete, whether a prosecution will be brought. If the decision has been made not to bring a prosecution, the regulator must tell you the reasons for that decision. It is the regulator's policy that if a request is made within the specified time (i.e. between 6 and 12 months of the alleged offence) and the investigation is not complete, the regulator will advise the applicant in writing of that fact and also undertake to inform the applicant when the investigation is complete and of the decision to prosecute.

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

If the regulator informs you that it has decided not to bring a prosecution for a Category 1 or 2 offence, the regulator must also advise you that you may ask for the matter to be referred to the Director of Public Prosecutions (DPP) for consideration. The DPP is the independent prosecution authority in Queensland.

If you make a request in writing for the regulator to refer the matter to the DPP, the regulator must refer the matter to the DPP within one month of your request.

Phone

1300 362 128

Fax

Fax to 07 3247 0297

Email

Email us whsq.aaa@oir.qld.gov.au

Mail

The Regulator
Coronial Liaison and Investigations Support Services
Operations Support Services
Workplace Health and Safety Queensland
GPO Box 69
Brisbane Qld 4001

The DPP will consider the matter and within one month advise the regulator in writing as to whether the DPP considers that a prosecution should be brought. The regulator must ensure that a copy of the DPP's advice is given to you and to the person you believe committed the offence.

If the regulator declines to follow the DPP's advice to bring proceedings, the regulator must give written reasons for the decision. The reasons must be given to the applicant who made the request and the person whom the applicant believes committed the offence. The DPP has a general power to bring proceedings for an offence against the Act if it believes it is necessary.

Last updated
05 July 2017

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