Regulatory guide - Prosecutions

Work Health and Safety Act 2011 (WHS Act) details how prosecutions may be brought for offences under the WHS Act or the Work Health and Safety Regulations 2011 (WHS Regulations).

All prosecutions under the WHS Act or WHS Regulations are conducted in accordance with the Prosecution Policy of the Commonwealth (Prosecution Policy).^[1]

Section 230(3) of the WHS Act requires Comcare to publish general guidelines in relation to the prosecution of offences under the WHS Act or WHS Regulations. This regulatory guide contains those guidelines.

1. Offences

Industrial manslaughter

From 1 July 2024, section 30A of the Work Health and Safety Act 2011 introduces an offence of industrial manslaughter. The offence will apply to PCBUs and officers of PCBUs whose reckless or negligent conduct causes the death of an individual.

A PCBU or an officer commits an offence if:

• the person has a health and safety duty (s 30A(1)(b)), and
• the person intentionally engages in conduct (s 30A(1)(c)), and
• the conduct breaches the health and safety duty (s 30A(1)(d)), and
• the conduct causes the death of an individual (s 30A(1)(e)), and
• the person was reckless, or negligent, as to whether the conduct would cause the death of an individual (s 30A(1)(f)).

For the purposes of establishing the offence, a person’s conduct causes the death of an individual if the conduct substantially contributes to the death.

Section 30A is an indictable offence and therefore does not have a limitation period for bringing proceedings.^[2]

Recklessness or Negligence (as defined in the Criminal Code)

A person commits an offence of industrial manslaughter if the person:

• engages in the conduct with negligence or;
• is reckless as to the risk of death and whether the conduct would cause the death of an individual.

The new corporate criminal liability provisions under the WHS Act (ss 245A to 245E) deal with how the elements of recklessness and negligence can be proven in relation to bodies corporate, the Commonwealth and public authorities.

Maximum penalties and no substitution for a term of imprisonment

The maximum penalty for the offence of industrial manslaughter is 25 years’ imprisonment for an individual or $18,000,000 for a body corporate or the Commonwealth.

Generally, a court may substitute a term of imprisonment for a monetary penalty under subsection 4B(2) of the Crimes Act. The introduction of subsection 30A(3) of the WHS Act prevents a court from doing so.

Alternative verdicts

If a court is not satisfied that a person is guilty of industrial manslaughter, but is satisfied that the person is guilty of an offence that is a category 1 or 2 offence (‘alternative offence’), then the court may find the person not guilty of industrial manslaughter, but guilty of the alternative offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.

There are no limitation periods in relation to alternative verdicts. If the prosecution commences proceedings outside of the limitation period that applied to, for example, a category 2 offence (two years after the offence first comes to the notice of the regulator or one year after a coronial finding – see section 232 of the WHS Act), this would not impact the ability of a court to find the accused guilty of that offence.

Categories of offences

The most serious offence under the WHS Act and WHS Regulations is a Category 1 offence. A Category 1 offence arises where the person who has a health and safety duty, without reasonable excuse:^[3]

• engages in conduct that:
  • exposes an individual, to whom the health and safety duty is owed, to a risk of death or serious injury or illness; or
  • if the person is an officer of a person conducting a business or undertaking (PCBU) – exposes an individual to whom the PCBU owes a health and safety duty to a risk of death or serious injury or illness; and
• the person engages in the conduct with negligence or is reckless as to the risk to an individual of death or serious injury or illness.

A person who has a health and safety duty may also commit lesser offences:^[4]

• if the person fails to comply with the health and safety duty – Category 3 offence
• if the person fails to comply with the health and safety duty and the failure exposes an individual to a risk of death or serious injury or illness – Category 2 offence.

Many other offence provisions appear throughout the WHS Act and the WHS Regulations. They can be identified by a statement at the foot of the provision as to the maximum penalty that may be imposed on an offender on conviction.^[5]

A person who has been convicted of an offence under a corresponding WHS law^[6] in relation to an act or omission is not liable to be convicted of the same offence under the WHS Act or WHS Regulations in relation to the same act or omission.^[7]

2. Corporate and Commonwealth criminal liability

From 1 July 2024, new sections 244A and 244B of the Work Health and Safety Act 2011 (WHS Act) outline the circumstances under which the physical and fault elements of an offence will apply to a body corporate. Changes to section 245 of the WHS Act outlines the considerations under which the physical and fault elements of an offence will apply to the Commonwealth.

Physical elements

A physical element of an offence may be:

• conduct; or
• a result of conduct; or
• a circumstance in which conduct, or a result of conduct, occurs.^[8]

Conduct means an act, an omission to perform an act, or a state of affairs relevant to an offence.^[9] A physical element for most offences must be accompanied by a fault element which may be intention, knowledge, recklessness or negligence.

The conduct constituting a physical element of an offence would be taken to have been committed by a body corporate if the conduct is engaged in by:

• the body corporate’s board of directors^[10]; or
• one or more authorised persons for the body corporate^[11]; or
• one or more persons acting at the direction of or with the express or implied agreement or consent of:
  • an authorised person for the body corporate; or
  • the body corporate’s board of directors.^[12]

The conduct constituting a physical element of an offence would be taken to have been committed by the Commonwealth if the conduct is engaged in by:

• the executive^[13] of an agency of the Commonwealth; or
• one or more authorised persons for the Commonwealth^[14]; or
• one or more persons acting at the direction of or with the express or implied agreement or consent of:
• an authorised person for the Commonwealth; or
• the executive of an agency of the Commonwealth.^[15]

Fault elements other than negligence

Where it is necessary to establish the state of mind (fault element) of a body corporate regarding a physical element of an offence, it is sufficient to demonstrate the following:

• the body corporate’s board of directors:
  • engaged in the conduct constituting the offence and had that state of mind in relation to that physical element; or
  • expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
• an authorised person for the body corporate:
  • engaged in the conduct constituting the offence and had that state of mind in relation to that physical element of the offence; or
  • expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
• a corporate culture^[16] existed within the body corporate that directed, encouraged, tolerated or led to the conduct constituting the offence.^[17]

Where it is necessary to establish the state of mind (fault element) of the Commonwealth regarding a physical element of an offence, it is sufficient to demonstrate the following:

• the executive of an agency of the Commonwealth:
• engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
• expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
• an authorised person for the Commonwealth:
• engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or
• expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or
• a corporate culture^[18] existed within an agency of the Commonwealth that directed, encouraged, tolerated or led to the conduct constituting the offence.^[19]

A non-exhaustive list of factors to consider when determining if a relevant corporate culture existed are in sections 244B(3) and 245B(3).

The ‘state of mind’ of a body corporate or Commonwealth in relation to a physical offence is not made out if it can be proven that reasonable precautions were undertaken to prevent:

• the conduct constituting the offence; or
• the authorised person authorising or permitting the conduct constituting the offence.^[20]

The onus is on the defendant (that is, the body corporate or the Commonwealth) to prove that such reasonable precautions were taken.^[21] This shift in the burden of proof is justified due to the unique knowledge the defendant possesses regarding the steps taken to prevent breaches of the WHS Act.

Negligence

The test of negligence for a body corporate is set out in s 5.5 of the Criminal Code Act 1995 (Cth).

5.5  Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence

Negligence can arise out of the actions of multiple individuals of a body corporate or the Commonwealth. The new sections 244BA and 245BA enables negligence to be attributed respectively to a body corporate or the Commonwealth even if that fault element cannot be attributed to an individual employee, agent, or officer^[22] as the conduct of multiple individuals can be aggregated and thereby attributed to the body corporate or the Commonwealth.

Negligence may be demonstrated by the fact that the prohibited conduct was substantially attributable to:

1. inadequate management, control or supervision of the conduct of one or more of the body corporate’s/Commonwealth’s employees, agents or officers; or
2. failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate/Commonwealth.

Defence of mistake of fact

Where it is relevant to determining liability, a body corporate or the Commonwealth can rely on the mistake of fact defence if:

• the employee, agent or officer who engaged in the conduct constituting the offence had a mistaken but reasonable belief about facts, that had they existed, would not have constituted an offence; and

the body corporate or the Commonwealth took reasonable precautions to prevent the conduct. ^[23]

Criminal liability of public authorities

New section 251 provides that (under Division 4 of Part 13 of the WHS Act) corporate criminal responsibility applies to a public authority.^[24]

3. Prosecutor

A prosecution for an offence under the WHS Act or WHS Regulations may be brought by:^[25]

• Comcare
• an inspector, with the written authorisation of Comcare
• the Commonwealth Director of Public Prosecutions (CDPP).

In all cases, the criteria in the Prosecution Policy will be applied in deciding whether to bring a prosecution and whether to continue a prosecution that has been commenced.

When Comcare concludes an investigation and forms a view that an offence appears to have been committed, taking into account the criteria in the Prosecution Policy, it will forward a brief of evidence to the CDPP to consider whether an offence is made out, whether a prosecution is appropriate and on what charge(s). If the CDPP considers that a prosecution is appropriate, Comcare or an authorised Comcare inspector will commence the prosecution proceedings. The CDPP will then conduct the prosecution with assistance and support from Comcare and its inspectors.

In appropriate cases, Comcare may also specifically notify persons who have an interest in the subject matter of the prosecution of decisions made by Comcare and/or the CDPP.

For Category 1 and Category 2 offences, the process may be affected by a request to Comcare that a prosecution be brought. A person (‘the applicant’) may write to Comcare to request that a prosecution be brought if the applicant reasonably considers, including from coronial proceedings or a coronial report, that a Category 1 offence or Category 2 offence has been committed.

The request may only be made:

• at least 6 months but not more than 18 months after the act, matter or thing occurs, which the person reasonably considers constitutes a Category 1 or 2 offence
• within 6 months after the coronial report was made or the inquiry or inquest ends, from which the person reasonably considers that a Category 1 or 2 offence has been committed.^[26]

Comcare must provide a written response to the applicant within three months advising the applicant whether the investigation is complete, and if so, whether a prosecution will be brought. If the decision is made not to bring a prosecution, Comcare must provide the reasons for that decision.^[27]

If a person makes a request to Comcare to bring a prosecution and Comcare advises the applicant that an investigation is not yet complete, Comcare must provide written updates to the applicant on the progress of the investigation every three months until the investigation is complete. Once the investigation is complete, Comcare must advise the person whether a prosecution will be brought and, if the decision has been made to not bring a prosecution, the reasons for that decision.^[28]

If Comcare advises the applicant that a prosecution will not be brought, the applicant may ask that the matter be referred to the CDPP for consideration. Comcare will refer the matter to the CDPP within one month of that request and the CDPP will then advise whether or not the CDPP considers that a prosecution should be brought. Comcare will notify the applicant and the person who the applicant believes has committed the offence of the CDPP’s view as to whether a prosecution should be brought and provide a summary of the CDPP’s reasons.^[29]

Even if the CDPP’s advice is to bring a prosecution, Comcare is not obliged to follow that advice. However, Comcare will provide written reasons for that decision to the applicant and the person who the applicant believes committed the offence.^[30]

4. Decision to prosecute

Under the Prosecution Policy, a decision whether to institute or continue a prosecution is based on a number of considerations.

4.1. Reasonable prospect of conviction

A prosecution should not proceed if there is no reasonable prospect of conviction. This means there must be more than a bare prima facie case. It does not mean that there must be an assurance that the prosecution will succeed.

There should be an evaluation of how strong the case is likely to be when presented in court. Matters to be taken into account include:

• the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact
• the admissibility of any alleged confession or other evidence
• any lines of defence which are plainly open to, or have been indicated by, the alleged offender
• any other factors which could affect the likelihood of a conviction.

There is a detailed list of questions at paragraph 2.7 of the Prosecution Policy that can be asked in evaluating the strength of a case.

A matter which tests the law but which does not have a reasonable prospect of conviction should not proceed.

4.2. Public interest

A prosecution should not proceed unless, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted.

Some factors which may be relevant in determining whether the public interest requires a prosecution include:

• the seriousness or, conversely, the relative triviality of the alleged offence
• the fact that the alleged offence is of a ‘technical’ nature only
• mitigating or aggravating circumstances impacting on the appropriateness or otherwise of the prosecution
• the alleged offender’s antecedents and background
• the passage of time since the alleged offence when taken into account with the circumstances of the alleged offence and when the offence was discovered
• the degree of culpability of the alleged offender in connection with the offence
• the availability and efficacy of any alternatives to prosecution
• the prevalence of the alleged offence and the need for deterrence, both personal and general
• whether the alleged offence is of considerable public concern
• the attitude of the victim of the alleged offence to a prosecution
• the actual or potential harm, occasioned to an individual
• the likely length and expense of a trial
• the likely outcome in the event of a finding of guilt having regard to the sentencing options available
• the need to give effect to regulatory or punitive imperatives.

It is not possible to make an exhaustive list of the factors to be taken into account. Some additional factors appear at paragraph 2.10 of the Prosecution Policy. The applicability of individual factors and the weight to be given to them will depend on the circumstances of each case.

4.3. Appropriate charges

If the evidence would justify prosecution for several different offences, it is necessary to choose a charge or charges which adequately reflect the nature and extent of the criminal conduct disclosed by the evidence and which will provide the court with an appropriate basis for sentence. Ordinarily this will be the most serious charge or charges disclosed by the evidence. Under no circumstances should charges be laid with the intention of providing scope for subsequent charge negotiation.

5. Commencing a prosecution

In most cases, proceedings for an offence against the WHS Act or WHS Regulations must be brought within two years after the offence first comes to Comcare’s notice.^[31]

For Category 1 offences only, proceedings may be brought after the normal limitation period if fresh evidence relevant to the offence is discovered, which could not reasonably have been discovered within the limitation period.^[32]

Prosecutions are brought in state or territory courts, and procedures will vary depending on the particular court.^[33]

6. During a prosecution

Once a prosecution has been commenced, Comcare and its inspectors provide assistance and support to the CDPP as required.

If an accused person proposes a WHS undertaking to Comcare before the prosecution has been finalised, Comcare will consider the WHS undertaking on its merits. One of the relevant circumstances will be that the CDPP has evaluated the matters as warranting a prosecution under the Prosecution Policy.

If Comcare does accept a WHS undertaking in this situation, Comcare must take all reasonable steps to have the prosecution discontinued.^[34] As specified in Annexure C to the Prosecution Policy, Comcare will request in writing that the CDPP discontinues the prosecution. The CDPP will consider whether to discontinue the prosecution on public interest grounds and will have particular regard to the following factors from the list of factors listed above:

• the availability and efficacy of any alternatives to prosecution
• the need to give effect to regulatory or punitive imperatives.

7. Sentencing

Part of the prosecution process is sentencing an offender who has been convicted of an offence. The court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence.^[35] Some of the matters that the court must take into account if relevant in a particular case are:^[36]

• the nature and circumstances of the offence
• any injury, loss or damage resulting from the offence
• the degree to which the offender has shown contrition for the offence
• if the offender has pleaded guilty to the charge in respect of the offence—that fact
• the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences
• the deterrent effect that any sentence or order under consideration may have on the offender
• the need to ensure that the offender is adequately punished for the offence.

The offence provisions in the WHS Act and the WHS Regulations each state specific penalty options, which may depend on factors such as whether the offender is an individual or a body corporate. The stated penalties are the maximum that can be imposed.^[37]

The most significant penalty is for a Category 1 offence which:^[38]

• for an individual is the category 1 monetary penalty or 15 years imprisonment or both.
• for a body corporate is the category 1 monetary penalty.

In addition to the penalties that are set out in specific offence provisions, the court may consider further sentencing options from Division 2 of Part 13 of the WHS Act. These include, for example:

• orders to publicise the offence, its consequences and the penalty imposed^[39]
• orders requiring the offender to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy^[40]
• orders requiring the offender to undertake a project for the general improvement of work health and safety.^[41]

A sentencing court may also issue an injunction requiring the offender to cease contravening the WHS Act.^[42]

8.  Prohibition on insurances and other indemnities

Section 272A of the WHS Act prohibits a person, without a reasonable excuse, from:

• entering an insurance contract or other arrangement
• providing insurance or an indemnity
• taking the benefit of an insurance contract, other arrangement or indemnity

to cover all or part of a liability for a monetary penalty under the WHS Act.

If criminal proceedings are brought against a person for an alleged contravention of section 272A of the WHS Act, the person has the evidentiary burden to show they had a reasonable excuse. A reasonable excuse may be that the person granted the indemnity under duress, or entered the insurance contract based on negligent legal advice that led them to believe the contract did not cover monetary penalties under the WHS Act.

Section 272A(3) of the WHS Act also makes void any insurance contract or other arrangement to the extent it purports to cover a person for all or part of a liability for a monetary penalty under the WHS Act.

Section 272B of the WHS Act includes a separate offence for an officer of a body corporate if they are involved in the contravention by a body corporate of section 272A. An officer will be ‘involved in’ a contravention of section 272A if the officer has:^[43]

• aided, abetted, counselled or procured the contravention
• induced by threats, promise or otherwise the contravention
• by act or omission been directly or indirectly, knowingly concerned in or party to the contravention
• conspired with others to effect the contravention.

The inclusion of a separate offence for officers is intended to ensure greater deterrence by targeting the conduct of individuals that results in a body corporate contravening section 272A of the WHS Act.

9. Penalties

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amended the WHS Act and WHS Regulations to create a new system of monetary penalties for WHS offences. The existing penalties were also significantly increased and will now be assessed to increase every year.

The increased penalties strengthen the WHS legislation by providing clear and effective punishments to act as a deterrent against breaching WHS duties.

The new penalties will include a maximum of 25 years imprisonment for individuals and a fine of up to $18 million for bodies corporate (including the Commonwealth) for the offence of industrial manslaughter (which commences on 1 July 2024).

The offence provisions previously identified the monetary penalty for each offence but now describe the monetary penalties in terms of:

• ‘categories’ - for Category 1, 2 and 3 offences
• ‘tiers’ - for all other criminal offences
• ‘WHS civil penalty provision tiers’ - for all WHS civil offences.

The penalty amount for each ‘category’, 'tier’ and 'WHS civil penalty provision tier’ (penalty types) are listed in clauses 1, 2, and 3 of Schedule 4 of the WHS Act.

An indexing mechanism for monetary penalties has also been introduced to ensure WHS penalties retain their relative value and remain a serious deterrent into the future.

Penalty amounts

Schedule 4 of the WHS Act identifies:

• the monetary penalty amount for each penalty type
• how and when the monetary penalty amounts are increased by indexation

Clause 1 of Schedule 4 of the WHS Act identifies the maximum monetary penalties for offences under the WHS Act where a category 1, 2 or 3 monetary penalty is specified (noting that Category 1 offences also carry a potential term of imprisonment with the maximum term stated in section 31 of the WHS Act). For category 1, 2 and 3 monetary penalties there are different maximum monetary penalties for:

• an individual (acting as a PCBU or as an officer of a PCBU)
• an individual (acting as a worker or an ‘other person’)
• a body corporate (including the Commonwealth).

Clause 2 of Schedule 4 of the WHS Act refers to the maximum monetary penalty for offences under the WHS Act and WHS Regulations where a tier A, B, C, D, E, F, G, H or I monetary penalty is specified. Tier A-I offences have separate penalty amounts for offences committed by:

• an individual
• a body corporate (including the Commonwealth).

Clause 3 of Schedule 4 of the WHS Act refers to the maximum monetary penalty for offences under the WHS Act where a WHS civil penalty provision tier 1, 2, 3, or 4 monetary penalty is specified. WHS civil penalty provision tiers 1-4 have separate penalty amounts for offences committed by:

• an individual
• a body corporate (including the Commonwealth).

Indexation of penalties

Indexation will be applied to the penalty types from on 1 July 2024 annually.^[44] Indexation will be calculated using the CPI number for the March quarter each year.^[45] To ensure penalty amounts do not reduce, if the indexation results in a figure less than the penalty amount of the previous year, the penalty amount will not change for that year.^[46]

Comcare is required to annually notify of the indexation of each penalty amount.^[47] As soon as practicable after publication by the Australian Statistician of the CPI number for the March quarter each year, Comcare must give notice by notifiable instrument of the maximum amount of each monetary penalty calculated under Schedule 4.