These guidelines provide information about the way work health and safety prosecutions are conducted by WorkSafe. These guidelines are published in accordance with section 230(3)(a) of the Work Health and Safety Act 2012.
WorkSafe administers work health and safety laws in Tasmania.
The National Compliance and Enforcement Policy outlines the aims of compliance and enforcement as well as the compliance and enforcement tools available to work health and safety regulators. The Policy also sets outs 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 work health and safety laws set out a range of sentencing options that may be used. The following orders may be applied in addition to any penalty imposed for an offence:
- adverse publicity orders
- orders for restoration
- work health and safety project orders
- court-ordered work health and safety undertakings, and
- training orders.
A decision to prosecute is made by the Director of Public Prosecutions (DPP) following consideration of a recommendation by WorkSafe.
The Director of Public Prosecutions has published guidelines on how the office exercises its discretion to prosecute.
Requests for prosecutions
Section 231(1) of the Work Health and Safety Act 2012 allows a person who reasonably considers that a certain offence has been committed but where no prosecution has been brought, to ask the appointed regulator in writing to bring a prosecution. The request can only be made if no prosecution has been brought between six and twelve months after the event has occurred.
Questions and answers
If I make a request will my details remain confidential?
Your details will be kept confidential to the extent required and permissible by law. Section 271 of the Work Health and Safety Act 2012 titled "Confidentiality of Information" outlines requirements and provisions as it relates to the protection and use of information.
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.
If I make a request how long will it take to receive a response?
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, you must be told the reasons for that decision.
What happens if I am told that the investigation is not complete?
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 its decision to prosecute.
What happens if I make a request to commence a prosecution at the time an Enforceable Undertaking proposal is under consideration?
The regulator will not enter into any proposed Enforceable Undertaking until such time as the request under section 231 of the Work Health and Safety Act 2012 has been assessed and determined.
What can I do if the regulator advises me that it has decided not to prosecute an offence, but I still think that there should be a prosecution?
If the regulator informs you that it has decided not to bring a prosecution for a Category 1 or 2 offence, you will be advised you that you may ask for the matter to be referred to the Director of Public Prosecutions (DPP) for consideration.
If you make a request in writing for the matter to be referred to the DPP, the regulator must refer the matter to the DPP within one month of your request.
A request for the regulator to refer a matter to the DPP should be sent to:
PO Box 56
ROSNY PARK TAS 7018
If the DPP advises that a prosecution should be brought, does the regulator have to prosecute?
No. If the regulator declines to follow the DPP's advice to bring proceedings, it must give written reasons for the decision. The reasons must be given to the applicant who made the request and the person who the applicant believes committed the offence.
If the regulator declines to follow the DPP's advice that a prosecution should be brought, can anyone else prosecute?
Yes. The DPP has a general power to bring proceedings for an offence against the Act if it believes it is necessary.