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Guidelines for prosecutions

These guidelines provide information about the way prosecutions are conducted by Workplace Health and Safety Queensland (WHSQ). These guidelines are in accordance with section 230(3)(a) of the Work Health and Safety Act 2011.

Workplace Health and Safety Queensland administers work health and safety laws for Queensland. These laws include the:

The National Compliance and Enforcement Policy outlines the aims of compliance and enforcement as well as the tools available to work health and safety regulators. The policy also sets out 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 National Compliance and Enforcement Policy can be accessed on the Safe Work Australia website or by contacting Workplace Health and Safety Infoline on 1300 369 915.

The decision to prosecute or not must be based upon the evidence, the law and Director of Public Prosecutions Guidelines.

It should be noted that prosecutions will continue under the Workplace Health and Safety Act 1995 for matters that occurred prior to the repeal of that Act.

Courts

Prosecutions for work health and safety laws are heard in the following courts:

Prosecution initiation

The Executive Director and the Director, Legal and Prosecution Services, Workplace Health and Safety Queensland (WHSQ), are delegated, on behalf of the Associate Director-General (the Regulator), Office of Fair and Safe Work Queensland, to make decisions to commence prosecutions. The Executive Director is delegated with authority to authorise an inspector to take proceedings for an offence under the Work Health and Safety Act 2011.

Prosecutions for matters that are heard before the Magistrates Court of Queensland are initiated by a complaint being laid and filed with the Court's registry. WHSQ will serve a copy of the complaint and summons on the defendant. Service may be effected by way of delivery in-person or via registered post to the defendant. The summons will indicate the return date and place that the defendant is required to appear i.e. the applicable Courthouse, court room, physical address, time and date.

Prosecutions for matters that are heard before the District Court (category 1 offences) are commenced by way of indictment. These matters are referred by WHSQ to the Department of Public Prosecutions who initiate the prosecution actions.

Court response

Once the complaint has been responded to, by way of both parties presenting at the court, the court will govern the course the matter will take. This will depend on the court and what approach the parties take to the matter, for example, if the defendant chooses to enter a guilty plea or seeks to adjourn the matter to a latter date and time.

A range of direction orders may be made by the court. For example, a direction hearing may be held and a variety of orders may be made at that time, including the exchange of material.

If the defendant enters a plea of guilty to the offence, the matter is usually set down for sentence hearing or may be heard on the date that the plea is entered. If the defendant enters a plea of not-guilty, the matter is set down for a trial/hearing.

Depending on the matter to be heard, a trial/hearing may take a day, several days or longer and may be split during a period of weeks or months. For example, the matter may be part heard in May and then adjourned until August for further hearing.

If a trial/hearing is held, the court may choose to deliver its decision on the final day of the trial/hearing or may reserve the decision for a later time, dependant on the complexity of the matter and the court's availability.

Steps in the court process

Category 1 offences have a committal procedure in Magistrates Court of Queensland. If it is determined that there is a case to answer, the matter is remitted to the District Court of Queensland for a hearing/trial. These matters are heard before a judge and a jury.

All matters set before the Magistrates Court of Queensland (category 2 and 3 offences, contraventions of enforceable undertakings and all other offences) are heard by an individual Magistrate and not before a jury.

In both these courts, the Magistrate or Judge can make certain orders that may relate to a case, for example, the exchange of material. Further, the Magistrate or Judge can adjourn the matter to another date and time and set the matter down for trial.

When a matter is first heard before the Magistrates Court of Queensland, this may be referred to as the 'first mention' or 'first call-over' of the matter. These mentions or call-overs are then referred to by way of number. For example, second, third, fourth mention etc. until a hearing/trial date is set.

Sentencing options

A range of sentencing options is available to magistrates or judges in Queensland under the Work Health and Safety Act 2011 and Penalties and Sentences Act 1992, including imposing:

The Work Health and Safety Act 2011 also provides for:

Appeals

Most appeals from decisions made by the Magistrates Court of Queensland are heard before the District Court of Queensland. This is in accordance with the Justices Act 1886.

Records of court process and decisions

Decisions handed down by the Magistrates Court of Queensland are not published by the Court in the first instance. Transcripts of the sentencing remarks can be purchased from the State Reporting Bureau, via telephone (07) 3247 4360. Judgments are published for criminal trials on appeal.

Publication of prosecution outcomes

Prosecution outcomes are published by Workplace Health and Safety Queensland in accordance with the publishing policy.

Recording of convictions

It is part of the Magistrate's or Judge's discretion to record a conviction in accordance with section 12 of the Penalties and Sentences Act 1992.

Requests for a prosecution to be brought

The work health and safety laws outline certain circumstances in which a person may request the regulator brings a prosecution.

Information about the status of court proceedings

The Investigations Liaison and Support Officer within Workplace Health and Safety Queensland will provide the next of kin of a worker fatally injured or the carer of a person very seriously injured, in a workplace incident, with information about the status of court proceedings.

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