Contents (2011 - 10)
Work Health and Safety Act 2011 No 10
Division 1 General matters
229B Procedure for offences
(1) Except as provided by this section, proceedings for an offence against this Act or the regulations are to be dealt with summarily:(a) before the Local Court, or(b) before the District Court in its summary jurisdiction.(2) (Repealed)(3) Proceedings for a Category 1 offence committed by an individual are to be taken on indictment.(4) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is $50,000, despite any higher maximum monetary penalty provided in respect of the offence.(5) (Repealed)(6) (Repealed)
(1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by:(a) the regulator, or(b) an inspector with the written authorisation of the regulator (either generally or in a particular case), or(c) the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate, but only as permitted by subsection (3) if the offence concerned is a Category 1 offence or a Category 2 offence.(1A) Proceedings for an offence against this Act may also be brought by an Australian legal practitioner authorised in writing to represent a person who is authorised under this section to bring the proceedings.(2) An authorisation under subsection (1) (b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.(3) The secretary of an industrial organisation of employees can bring proceedings for a Category 1 offence or a Category 2 offence only if the regulator has (after referral of the matter to the regulator and the Director of Public Prosecutions under section 231) declined to follow the advice of the Director of Public Prosecutions to bring the proceedings.(4) The regulator must issue, and publish on the regulator’s website, general guidelines for or in relation to:(a) the prosecution of offences under this Act, and(b) the acceptance of WHS undertakings under this Act.(5) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.(6) The court before which proceedings for an offence against this Act are brought by the secretary of an industrial organisation of employees must not direct that any portion of a fine or other penalty imposed in the proceedings be paid to the prosecutor (despite section 122 of the Fines Act 1996).
231 Procedure if prosecution is not brought
(1) If:(a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence, andthe person may make a written request to the regulator that a prosecution be brought.(b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence,(2) Within 3 months after the regulator receives a request the regulator must:(a) advise the person (in writing):(i) whether the investigation is complete, and(ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought, and(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).(3) If the regulator advises the person that a prosecution for a Category 1 or Category 2 offence will not be brought, the regulator must:(a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration, and(b) if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request.(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought.(5) The regulator must ensure a copy of the advice is given to:(a) the person who made the request, and(b) the person who the applicant believes committed the offence.(6) If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).(7) In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing.
232 Limitation period for prosecutions
(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur:(a) within 2 years after the offence first comes to the notice of the regulator,(b) within 1 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 this Act,(c) if a WHS undertaking has been given in relation to the offence, within 6 months after:(i) the WHS undertaking is contravened, or(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened, or(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.(2) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.
233 Multiple contraventions of health and safety duty provision
(1) 2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.(2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.(3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.(4) In this section health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2.