Request to commence a prosecution

This information provides guidance for any person who wishes to request that the Work Health and Safety Prosecutor prosecute another person for an alleged offence.

In particular, it outlines:

  • 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.

Types of offences that can be the subject of a request

Under section 231 of the Work Health and Safety Act 2011 (WHS Act) and section 186A of the Electrical Safety Act 2002 (ES Act) (as delegated to the Work Health and Safety Prosecutor), a person may request that a prosecution be commenced by the Work Health and Safety Prosecutor for an alleged:

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

A request can be made after six months, but (in the case of alleged Category 1 and 2 offences) not later than 12 months, from the date the alleged act or failure occurred.

A right to request the Work Health and Safety Prosecutor to commence a prosecution does not apply to alleged category 3 offences which occur where a person has a health and safety duty and they fail to comply with that duty.

The procedure under section 231 of the WHS Act applies to alleged category 1, category 2 or industrial manslaughter offences under the Safety in Recreational Water Activities Act 2011.

When a request can be made

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 6 months, but (in the case of alleged Category 1 and 2 offences) no later than 12 months, from the date the alleged act or failure occurred; and
  • the Work Health and Safety Prosecutor has not yet commenced prosecution action.

How to make a valid request for a prosecution

To make a valid request for the Work Health and Safety Prosecutor 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

enquiries@owhsp.qld.gov.au

Mail

Office of the Work Health and Safety Prosecutor
PO Box 10119
Brisbane Adelaide Street, QLD 4000

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

What happens after submitting your request?

Initial response and advice

The Work Health and Safety Prosecutor must 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, giving reasons for that decision.

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

The Work Health and Safety Prosecutor must 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 Work Health and Safety Prosecutor declines to follow this advice, the Work Health and Safety Prosecutor must 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 Work Health and Safety Prosecutor decides not to prosecute.

Enforceable undertakings

Proposed enforceable undertakings will not be entered until the request under section 231 of the WHS Act or s186A of the ESA has been assessed and determined.

Confidentiality of information

The Work Health and Safety Prosecutor will keep your details confidential to the extent required and permissible by law. Section 271 of the WHS Act (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.

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.

Section 231 of the WHS Act and section 186A of the ESA also requires the WHSP 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 want to raise a concern about a current investigation being undertaken by the Office of Industrial Relations, please phone 1300 362 128.