The decision to bring a prosecution for a breach of the Work Health and Safety Act 2012 is a significant one. The effect of this decision on those impacted (the defendant, injured worker, the family of a deceased worker) is likely to be considerable.
When deciding to initiate or proceed with a prosecution, WorkSafe Tasmania applies guidelines, from the Office of the Director of Public Prosecution. In applying these guidelines, WorkSafe Tasmania requires the highest standard of integrity to be applied to prosecutorial decision-making.
A common set of principles that are generally used in all prosecutorial decision-making are:
- the existence of a prima facie case: is the evidence sufficient to justify the institution of proceedings?
- the reasonable prospect of conviction: is the case likely to succeed when presented in court taking into consideration such matters as the availability, competence and credibility of witnesses and their likely impression on the court, the admissibility of any confession or other evidence, and any lines of defence available to the defendant?
- the public interest test.
The public interest test may include considering:
- the seriousness or otherwise of the alleged offence
- any mitigating or aggravating circumstances
- the characteristics of the obligation holder: 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
- the availability and efficacy of any alternatives to prosecution
- the prevalence of the alleged offence and the need for specific and general deterrence
- whether the alleged offence is of considerable public concern.
Time limits for proceedings
For offences under the Work Health and Safety Act 2012, the time permitted for initiating court proceedings is limited. Proceedings for a criminal offence may be brought:
- within two years after the offence first comes to WorkSafe Tasmania’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 Work Health and Safety Act 2012
- within six months of a contravention of an enforceable undertaking (or within six months of WorkSafe Tasmania 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 afterwards 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 Work Health and Safety Act 2012, civil penalties only apply to provisions associated with WHS entry permit holders — discriminatory or coercive conduct.
Read more in our Prosecutions Guidelines