Request that the regulator commences a prosecution

Section 231(1) of the WHS Act 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.

No. The procedure under section 231 of the WHS Act only applies to Category 1 or 2 offences, which are the most serious criminal offences under the WHS Act. These offences are provided for under sections 31 and 32 of the WHS Act respectively.

A Category 1 offence occurs when a person^[1] 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 expected to be 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 of the WHS Act.

[1] Person is taken to both a natural person and otherwise a legal entity such as a corporation

The request should refer to section 231 of the WHS 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 that 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.

You can use Form 71 Request for regulator to commence a prosecution to make your request (PDF, 469 kB), as this form ensures that you provide all the relevant information for WHSQ to follow-up on your request. Or the request must simply 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 request for the regulator to commence a prosecution should be sent via one of the following methods:

Post:
The Regulator
Workplace Health and Safety Queensland
Advisory and Assessment Centre
PO Box 820
Lutwyche Qld 4030

Email: whsqaaa@justice.qld.gov.au

Fax: (07) 3247 0297

The regulator will maintain confidentiality over your details to the extent required and permissible by law. Section 271 of the WHS Act 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.

Section 231 of the WHS Act also requires the regulator to tell the person whom you believe committed the offence of the application and its decision.

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.

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 the decision to prosecute.

The regulator will not enter into any proposed undertaking until such time as the request under section 231 of the WHS Act has been assessed and determined.

Yes, but only if the undertaking (an enforceable undertaking) is contravened.

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 Queensland.

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.

Email: OperationsSupportServices@justice.qld.gov.au

Fax: 07 3247 9163

Post:
The Regulator
Coronial Liaison and Investigations Support Services
Operations Support Services
Workplace Health and Safety Queensland
GPO Box 69
Brisbane Qld 4001

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.

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 whom the applicant believes committed the offence.

Yes. The DPP has a general power to bring proceedings for an offence against the Act if it believes it is necessary.