We have finally done it… we’ve reached the end of our overview journey through the new Work Health and Safety Act 2020 (WHS Act). If you have missed any of the previous updates don’t worry we’ve got you covered, you will find all of them on our website. But let’s get back to this week, our final week is all about Offences and Penalties…
HEALTH AND SAFETY DUTY OFFENCES (SECTIONS 30A-33)
There are four categories of offences for breaching the health and safety duties under the WHS Act.
- Industrial manslaughter: applies to those with a WHS duty where their conduct in failing to comply with that duty caused a death. Only PCBUs and their officers can be charged with industrial manslaughter.
- Category 1: applies to those with a WHS duty where their conduct in failing to comply with that duty caused the death of, or serious harm to a person.
- Category 2: applies to those with a WHS duty where their conduct in failing to comply with that duty exposed a person to the risk of death, injury, or harm to health.
- Category 3: applies to those with a WHS duty who failed to comply with that duty.
MAXIMUM PENALTIES FOR BREACH OF HEALTH AND SAFETY DUTY OFFENCES
The maximum penalties are different depending on the category of the offence and whether the offender is an individual (e.g. a worker, or a PCBU), an officer (as defined) or a body corporate.
Note: Where a penalty provides for a fine or term of imprisonment, the Court may impose a sentence that includes either or both penalties.
ALTERNATIVE PENALTY OPTIONS
In addition to imposing a penalty, courts may impose alternative remedies including:
- adverse publicity orders
- restoration orders
- work health and safety project orders
- court-ordered WHS undertakings
- training orders
OTHER OFFENCES
There are a number of other offences under the WHS Act that relate to specific requirements and carry their own individual penalties such as offences in relation to:
- incident notification
- authorisations
- consultation
- the establishment of work groups
- health and safety representatives
- health and safety committees
- discriminatory, coercive, or misleading conduct
- the regulator and inspectors
PROSECUTIONS (SECTIONS 229c-232A)
Proceedings for an offence against the WHS Act can only be brought by the regulator or public service officer working in the Department of Mines, Industry Regulation and Safety.
Industrial manslaughter offences under section 30A may only be prosecuted by the Director of Public Prosecutions.
LIMITATION PERIOD FOR PRESECUTIONS (SECTION 232)
Proceedings for an offence must be commenced:
- within two years after the offence first came to the regulator’s attention
- within one year after a finding in a coronial or other official inquiry that the offence has occurred
- within six months of a WHS undertaking being breached, or when the regulator becomes aware of a breach or agrees to withdraw the undertaking.
After the standard limitation period, proceedings may commence for Category 1 offences if fresh evidence is discovered, and the court is satisfied the evidence could not reasonably have been discovered within the relevant limitation period.
There is no limitation period for industrial manslaughter. If the Director of Public Prosecutions decides not to bring proceedings for industrial manslaughter, proceedings for another offence may be brought by the regulator within six months of the Director’s decision.
ADMISSION OF EVIDENCE OBTAINED UNLAWFULLY (SECTION 232A)
Under some circumstances, a court may consider admitting evidence into proceedings that was obtained as a result of unlawful conduct. This might occur, for example, where an inspector inadvertently exceeds the parameters of an entry warrant.
*Disclaimer: Please note this communication is provided for general information purposes only. It is not intended as legal advice, only a Legal Practicing Professional can provide legal advice.
