Request to commence a prosecution

This guidance provides information on the following for any person who wishes to request that the Work Health and Safety Prosecutor (WHSP) commence a prosecution for an alleged offence:

  • legislative provisions which provide for a request to be made to the WHSP to commence a prosecution
  • the types of offences that can be the subject of a request
  • when a request can be made
  • how to make a valid request for a work health and safety prosecution
  • what happens after a request is made
  • confidentiality of information
  • contact details for enquiries regarding investigations.

Legislative provisions enabling a request to the WHSP to commence a prosecution

A person may request that the WHSP commence a prosecution pursuant to:

  • section 231 of the Work Health and Safety Act 2011 for alleged offences under the that Act or the Safety in Recreational Water Activities Act 2011
  • section 256B of the Coal Mining Safety and Health Act 1999
  • section 118C of the Explosives Act 1999
  • section 235B of the Mining and Quarrying Safety and Health Act 1999
  • section 837C of the Petroleum and Gas (Production and Safety) Act 2004.

Under section 186A of the Electrical Safety Act 2002 a person may request that the regulator bring a prosecution. Nothing in that section prevents a person making a request of the WHSP to commence a prosecution under the Electrical Safety Act 2002, but there is no process established by legislation.

Types of offences that can be the subject of a request

Under section 231 of the Work Health and Safety Act 2011, a person may request that a prosecution be commenced by the WHSP under the Work Health and Safety Act 2011 and the Safety in Recreational Water Activities Act 2011 for an alleged:

  • Category 1 offence
  • Category 2 offence
  • Offence of industrial manslaughter against a person conducting a business or undertaking (PCBU).

A person may request that a prosecution be commenced by the WHSP for a serious offence under the Coal Mining Safety and Health Act 1999, Explosives Act 1999, Mining and Quarrying Safety and Health Act 1999 and Petroleum and Gas (Production and Safety) Act 2004. Serious offences are those which:

  • caused multiple deaths, or
  • caused death or grievous bodily harm, or
  • caused bodily harm, or
  • involved exposure to a substance that is likely to cause death or grievous bodily harm, or

Serious offences also include industrial manslaughter and any other offence prescribed by regulation to be a serious offence.

When a request can be made

Under the Work Health and Safety Act 2011 and the Safety in Recreational Water Activities Act 2011, a person can request a prosecution be brought if:

  • the person reasonably considers that an act or failure constitutes a category 1, category 2 or industrial manslaughter offence; and
  • the request is made no earlier than six months, but (in the case of alleged Category 1 and 2 offences) no later than 18 months, from the date the alleged act or failure occurred; and
  • the WHSP has not yet commenced a prosecution.

Under the Coal Mining Safety and Health Act 1999, Explosives Act 1999, Mining and Quarrying Safety and Health Act 1999 and Petroleum and Gas (Production and Safety) Act 2004, a person can request a prosecution be brought if:

  • the person reasonably considers that an act or omission constitutes a serious offence; and
  • the request is made no earlier than six months, but no later than 12 months, from the date the alleged act or omission occurred (except if the offence is one of industrial manslaughter in which case the request is made no earlier than six months after the alleged act or omission occurred); and
  • no prosecution has been brought in relation to the act or omission.

How to make a valid request for a prosecution

To make a valid request for the WHSP to commence a prosecution you need to:

  • provide your full name and contact details
  • provide details of the workplace or location where the offence allegedly occurred, including:
    • the name of the employer, business or entity involved
    • the street address of the location
  • provide details of the alleged offence, including:
    • the date, and if possible, the time of day, that any incident, act or failure occurred
    • identify people involved, either by name or position, or both
    • describe the alleged breach – What happened? What should have happened?
  • make the request in writing by either email or mail.

Form

A form is available to assist, but is not mandatory to be used.

Form 71 Request for Work Health and Safety Prosecutor (WHSP) to commence a prosecution (PDF, 161KB)

What happens after submitting your request?

Initial response and advice

The WHSP will write to you within three months of receiving your request, advising:

  • whether the investigation is complete
  • if the investigation is complete, whether a prosecution has been or will be brought
  • if a prosecution will not be brought, of the reasons for that decision.

The WHSP will also write to the person who you believe committed the alleged offence, providing the same information, within the same three months' timeframe.

Referral to the Director of Public Prosecutions

  • If the WHSP decides not to commence a prosecution, you have the option of requesting in writing that the WHSP refer the matter to the Director of Public Prosecutions (DPP) for consideration (‘referral request’). The DPP is the independent prosecution authority in Queensland.
  • The WHSP will refer the matter to the DPP within one month of receiving your written referral request.
  • The DPP will provide written advice to the WHSP within one month of referral in relation to whether a prosecution should be brought.

The WHSP will provide a copy of the DPP’s advice to both you and the person who you believe committed the alleged offence.

Further action by the Work Health and Safety Prosecutor

If the DPP recommends prosecution of the alleged offence, but the WHSP declines to follow this advice, the WHSP will provide written reasons for this decision to both you and the person who you believe committed the alleged offence.

DPP prosecution

The DPP can decide to commence a prosecution even if the WHSP decides not to prosecute.

Enforceable undertakings

Proposed enforceable undertakings under the Work Health and Safety Act 2011 will not be entered until any request under section 231 of the Work Health and Safety Act 2011 or section 186A of the Electrical Safety Act 2002 for prosecution has been assessed and determined.

Confidentiality of information

The WHSP will keep your details confidential to the extent required and permissible by law. Section 271 of the Work Health and Safety Act 2011 (confidentiality of information) outlines requirements and provisions relating to the protection and use of information obtained under a power or function of the Work Health Safety Act 2011. Similar provisions exist in the Coal Mining Safety and Health Act 1999, Explosives Act 1999, Mining and Quarrying Safety and Health Act 1999 and Petroleum and Gas (Production and Safety) Act 2004.

To properly investigate some matters, it may be necessary to disclose some of the details of the information you have provided to another person or entity, therefore your identity may become known.

The WHSP is required to tell the person who you believe committed the offence about the request for prosecution and the WHSP’s decision on the matter.

Contact details for enquiries about investigations

If you are seeking information or wish to raise a concern about a current investigation being undertaken by the Office of Industrial Relations, visit worksafe.qld.gov.au.

If you are seeking information or wish to raise a concern about a current investigation being undertaken by the Coal Mines, Mineral Mines and Quarries, Petroleum and Gas or Explosives inspectorates, contact details are available at rshq.qld.gov.au.