Prosecutions for offences, under the Work Health and Safety Act 2011 (WHS Act), Electrical Safety Act 2002 (ES Act) and Safety in Recreational Water Activities Act 2011 (SRWAA) (Safety Acts), are generally commenced and heard in the Magistrates Court of Queensland and are initiated by a complaint being laid by the Work Health and Safety Prosecutor (WHSP) and filed with the Court's registry.
A copy of the complaint and summons is served on the defendant. Service is effected by way of delivery in-person or via registered post. The summons attached to the complaint will indicate the return date (first mention), the applicable Courthouse, court room, street address and time.
Prosecutions for Category 1 offences and Industrial Manslaughter under the Safety Acts are also commenced by way of complaint in the Magistrates court, before proceeding to committal. The purpose of the committal is to determine whether there is sufficient evidence to require the defendant to stand trial. Once the defendant is committed to stand trial, an indictment is presented and the matter is heard in the District Court.
The decision to commence indictable offences under the Safety Acts is also made by the WHSP. However, approval from the Director of Public Prosecutions (DPP) to proceed with a prosecution on indictment is required prior to the presentation of an indictment and is sought by the OWHSP subsequent to a committal order.
Time limits for proceedings
Excepting Industrial Manslaughter, the time for the Work Health and Safety Prosecutor to bring charges against a person is limited. Proceedings for a criminal offence under the Safety Acts may be brought within the latest of the following:
- within two years after the offence first comes to the notice of the WHSP
- within one year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against the Safety Acts
- within six months of a contravention of an enforceable undertaking (or within six months of the regulator becoming aware that the undertaking has been contravened)
- within six months of the regulator agreeing to the withdrawal of an enforceable undertaking in accordance with section 221
- after the relevant limitation period if, in relation to a Category 1 ‘reckless conduct’ offence, fresh evidence relevant to the offence is discovered that could not reasonably have been discovered within the relevant limitation period.
Proceedings for a contravention of a civil penalty provision may be brought within two years after the regulator first becomes aware of the contravention. Under the WHS laws, civil penalties only apply to provisions associated with work health and safety entry permit holders.