Guidelines for prosecutions

The Work Health and Safety Prosecutor (WHSP) conducts prosecutions in accordance with the Work Health and Safety Act 2011 (the WHS Act), Electrical Safety Act 2002 (ESA) and Safety in Recreational Water Activities Act 2011 (SRWAA) (Safety Acts). 

Pursuant to section 48(1), Part 4, Schedule 2 of the Work Health and Safety Act 2011 (WHS Act), the Work Health and Safety Prosecutor must issue, and publish on the Work Health and Safety Prosecutor’s website, general guidelines in relation to the prosecution of offences.

Also find out about other guidelines to staff, the regulator and employees of the Office of Industrial Relations (OIR) that apply to prosecution decisions being made by the Work Health and Safety Prosecutor, pursuant to section 48(2), Part 4, Schedule 2 of the WHS Act.

  • General guidelines (pursuant to section 48(1) of the WHS Act)
  • Written guidelines (pursuant to section 48(2) of the WHS Act)
  • Director of Public Prosecution (DPP) guidelines (pursuant to section 230(3) of the WHS Act).
  • Repealed Workplace Health and Safety Act 1995

General guidelines (pursuant to section 48(1) of the WHS Act)

Written guidelines (pursuant to section 48(2) of the WHS Act)

Director of Public Prosecution guidelines

Application of DPP Guidelines to prosecutions

The decision to bring a prosecution for a breach of the Safety Acts is a significant one and the effect of this decision on those impacted (e.g. the defendant, an injured worker, or the family of a deceased worker) is likely to be considerable.

When deciding to initiate or proceed with a prosecution, the WHSP must apply the Director of Public Prosecution (DPP) Guidelines.

The WHSP considers:

  • the existence of a prima facie case
  • whether the evidence is sufficient to justify the institution of proceedings, that is, whether there are reasonable prospects of a conviction when the case is presented to the Court. This involves taking into account factors relevant to the merits of the case, including:
    • the availability, competence and compellability of witnesses and their likely impression on the Court
    • any conflicting statements by a material witness
    • the admissibility of evidence
    • any lines of defence plainly open to the alleged offender
  • whether the public interest requires a prosecution. This may involve consideration of discretionary factors such as:
    • the seriousness or, conversely, the triviality of the alleged offence or whether it is only of a technical nature
    • any mitigating or aggravating circumstances
    • the characteristics of the alleged offender – including any special infirmities, prior compliance history and background
    • the age of the alleged offence
    • the degree of culpability of the alleged offender
    • whether the prosecution would be perceived as counter-productive to the interests of justice
    • the availability and efficacy of any alternatives to prosecution
    • the prevalence of the alleged offence and the need for deterrence, both specific and general
    • whether the alleged offence is of minimal public concern.

Repealed Workplace Health and Safety Act 1995

For matters that occurred prior to the repeal of the Workplace Health and Safety Act 1995, prosecutions still proceed under that Act.