General information and guidance
- this information provides general information and guidance to a person who is considering making a request to the Work Health and Safety Regulator to commence a prosecution
- relates to a situation where a person believes a category 1 or 2 offence of the Work Health and Safety Act 2012 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 then please contact WorkSafe Tasmania.
What can I do if I think the Regulator should prosecute someone for a serious offence but the Regulator hasn’t commenced a prosecution?
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 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.
Can I make a request about any offence under the Work Health and Safety Act?
No, the procedure under section 231 only applies to Category 1 or 2 offences, which are the most serious criminal offences under the Act. These offences are provided set out under sections 31 and 32 of the Act respectively.
A Category 1 offence occurs when a person (person is taken to be both a natural person and otherwise a legal entity such as a corporation) has a health and safety duty, and 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. Prosecutions for a Category 1 offence are fairly rare.
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.
What information should be provided with the request?
The request should refer to section 231 of the 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, place and names of the people concerned, and the nature of the offence you believe has occurred. The request should identify the person you believe committed the offence.
The request should also include your contact details, so the Regulator can contact you to obtain further information. In some cases the Regulator may ask you to provide a statement or other information in support of your request.
How do I make a request to the Regulator?
The 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.
A form is available to help make your request to commence a prosecution. It is important to note that proper completion and submission of the form will allow for a timely assessment of the request.
A request for the Regulator to commence a prosecution should be sent to WorkSafe Tasmania.
If I make a request will my details remain confidential?
The Regulator will maintain confidentiality over your details to the extent required and permissible by law. Section 271 of the Act 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.
Section 231 of the Act also requires the Regulator to tell the person who you believe committed the offence of the application and the Regulator’s decision.
If I make a request how long will it take for the Regulator to respond?
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.
What happens if I am told by the Regulator that the investigation is not complete?
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 its decision to prosecute.
What happens if I make a request to the Regulator to commence a prosecution at the time an enforceable undertaking (work health and safety undertaking) proposal is under consideration?
The Regulator will not enter into any proposed enforceable undertaking (work health and safety undertaking) until such time as the request under section 231 of the Act has been assessed and determined.
If the Regulator has accepted an enforceable undertaking (work health and safety undertaking) can a prosecution be commenced?
Yes, but only if the enforceable undertaking (work health and safety undertaking) is contravened.
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, 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 Tasmania.
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.
How do I request the Regulator to refer the matter to the DPP?
Your request could be in the form of a letter, fax or email.
Should you be advised of the Regulator’s decision not to prosecute, the Regulator will provide a form to assist you in making the request for the matter to be referred to DPP.
A request for the Regulator to refer a matter to the DPP should be sent to WorkSafe Tasmania.
What will the DPP do and how long will it take?
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 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, the Regulator 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.