Regulatory guide - Prosecutions

Part 13 of the Work Health and Safety Act 2011 (WHS Act 2011) provides for how prosecutions may be brought for offences under the WHS Act or the Work Health and Safety Regulations 2011 (WHS Regulations).

All prosecutions under the WHS Act or WHS Regulations are conducted in accordance with the Prosecution Policy of the Commonwealth (Prosecution Policy).^[1]

Section 230(3) of the WHS Act requires Comcare to publish general guidelines in relation to the prosecution of offences under the WHS Act or WHS Regulations. This regulatory guide provides those guidelines.

1. Offences

The most serious offence under the WHS Act or WHS Regulations is a Category 1 offence,^[2] which applies to a person who has a health and safety duty. A Category 1 offence arises where 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.

A person who has a health and safety duty may also commit lesser offences (Category 2 and Category 3 offences)^[3] if the person fails to comply with the health and safety duty.

Many other offence provisions appear through the rest of the WHS Act and the WHS Regulations. They can be identified by a statement at the foot of the provision as to the penalty that may be imposed on an offender on conviction.

A person who has been convicted of an offence under a corresponding WHS law in relation to an act or omission is not liable to be convicted of the same offence under the WHS Act or WHS Regulations in relation to the same act or omission.^[4]

2. Prosecutor

A prosecution for an offence under the WHS Act or WHS Regulations may be brought by:^[5]

• the Commonwealth Director of Public Prosecutions (CDPP)
• Comcare
• an inspector, with the written authorisation of Comcare.

In all cases, the criteria in the Prosecution Policy will be applied in deciding whether to bring a prosecution and whether to continue a prosecution that has been commenced.

When Comcare concludes an investigation on the basis that an offence appears to have been committed, taking into account the criteria in the Prosecution Policy, it will forward a brief of evidence to the CDPP to consider whether a prosecution is appropriate and on what charge(s). If the CDPP considers that a prosecution is appropriate, an authorised Comcare inspector will commence the prosecution proceeding. The CDPP will then conduct the prosecution with assistance and support from Comcare and its inspectors.

In appropriate cases, Comcare may also specifically notify persons who have an interest in the subject matter of the prosecution of decisions made by Comcare and/or the CDPP.

For Category 1 and Category 2 offences, the process may be affected by a request to Comcare that a prosecution be brought. If a person (‘the applicant’) reasonably considers that a Category 1 offence or Category 2 offence has been committed, within certain timeframes the person may formally ask Comcare whether a prosecution will be brought. If Comcare answers that a prosecution will not be brought, the applicant may ask that the matter be referred to the CDPP for consideration. The CDPP will then advise whether or not the CDPP considers that a prosecution should be brought. Even if the CDPP’s advice is to bring a prosecution, Comcare is not obliged to follow that advice.^[6]

3. Decision to prosecute

Under the Prosecution Policy, a decision whether to institute or continue a prosecution must be based on a number of considerations.^[7]

3.1. Reasonable prospect of conviction

A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This means there must be more than a bare prima facie case. It does not mean that there must be an assurance that the prosecution will succeed.

There should be an evaluation of how strong the case is likely to be when presented in court. Matters to be taken into account include:

• the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact
• the admissibility of any alleged confession or other evidence
• any lines of defence which are plainly open to, or have been indicated by, the alleged offender
• any other factors which could affect the likelihood or otherwise of a conviction.

There is a detailed list of questions at paragraph 2.7 of the Prosecution Policy that can be asked in evaluating the strength of a case.

A matter which tests the law but which does not have a reasonable prospect of conviction should not be proceeded with.

3.2. Public interest

A prosecution should not proceed unless, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted.

Some factors which may be relevant in determining whether the public interest requires a prosecution include:

• the seriousness or, conversely, the relative triviality of the alleged offence
• the fact that the alleged offence is of a ‘technical’ nature only
• mitigating or aggravating circumstances impacting on the appropriateness or otherwise of the prosecution
• the alleged offender’s antecedents and background
• the passage of time since the alleged offence when taken into account with the circumstances of the alleged offence and when the offence was discovered
• the degree of culpability of the alleged offender in connection with the offence
• the availability and efficacy of any alternatives to prosecution
• the prevalence of the alleged offence and the need for deterrence, both personal and general
• whether the alleged offence is of considerable public concern
• the attitude of the victim of the alleged offence to a prosecution
• the actual or potential harm, occasioned to an individual
• the likely length and expense of a trial
• the likely outcome in the event of a finding of guilt having regard to the sentencing options available
• the need to give effect to regulatory or punitive imperatives.

It is not possible to make an exhaustive list of the factors to be taken into account. Some additional factors appear at paragraph 2.10 of the Prosecution Policy. The applicability of individual factors and the weight to be given to them will depend on the circumstances of each case.

3.3. Appropriate charge

If the evidence would justify prosecution for several different offences, it is necessary to choose a charge or charges which adequately reflect the nature and extent of the criminal conduct disclosed by the evidence and which will provide the court with an appropriate basis for sentence. In the ordinary course, this will be the most serious charge or charges disclosed by the evidence. Under no circumstances should charges be laid with the intention of providing scope for subsequent charge negotiation.

4. Commencing a prosecution

In most cases, proceedings for an offence against the WHS Act or WHS Regulations must be brought within two years after the offence first comes to Comcare’s notice.^[8]

For Category 1 offences only, proceedings may be brought after the normal limitation period if fresh evidence relevant to the offence is discovered, which could not reasonably have been discovered within the limitation period.^[9]

Prosecutions are brought in state or territory courts,^[10] and procedures will vary depending on the particular court.

5. During a prosecution

As mentioned, once a prosecution has been commenced, Comcare and its inspectors provide assistance and support to the CDPP as required.

If an accused person proposes a WHS undertaking to Comcare before the prosecution has been finalised, Comcare will consider the WHS undertaking on its merits. One of the relevant circumstances will be that the CDPP has evaluated the matters as warranting a prosecution under the Prosecution Policy.

If Comcare decides to accept the WHS undertaking in this situation, Comcare must take all reasonable steps to have the prosecution discontinued.^[11] As specified in Annexure C to the Prosecution Policy, Comcare will request in writing that the CDPP discontinue the prosecution. The CDPP will consider whether to discontinue the prosecution on public interest grounds and will have particular regard to the following factors from the list of factors listed above:

• the availability and efficacy of any alternatives to prosecution
• the need to give effect to regulatory or punitive imperatives.

6. Sentencing

Part of the prosecution process is sentencing an offender who has been convicted or found guilty of an offence. The court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence.^[12] Some of the matters that the court must take into account if relevant in a particular case are:

• the nature and circumstances of the offence
• any injury, loss or damage resulting from the offence
• the degree to which the offender has shown contrition for the offence
• if the offender has pleaded guilty to the charge in respect of the offence—that fact
• the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences
• the deterrent effect that any sentence or order under consideration may have on the offender
• the need to ensure that the offender is adequately punished for the offence.^[13]

The offence provisions in the WHS Act and the WHS Regulations each state specific penalty options, which may depend on factors such as whether the offender is an individual or a body corporate. The stated penalties are the maximum that can be imposed.^[14]

Thus the penalty for a Category 1 offence is:

• In the case of an offence committed by an individual (other than as a 'person conducting a business or undertaking' (PCBU) or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment or both.
• In the case of an offence committed by an individual as a 'person conducting a business or undertaking' (PCBU) or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment or both.
• In the case of an offence committed by a body corporate—$3,000,000.^[15]

Most other offences are punishable only by pecuniary penalty, which may range from $1,250 up to $1,500,000.^[16]

In addition to the penalties that are set out in specific offence provisions, the court may consider further sentencing options from division 2 of part 13 of the WHS Act. These include, for example:

• orders to publicise the offence, its consequences and the penalty imposed^[17]
• orders requiring the offender to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy^[18]
• orders requiring the offender to undertake a project for the general improvement of work health and safety.^[19]

A sentencing court may also issue an injunction requiring the offender to cease contravening the WHS Act.^[20]