Regulatory guide - WHS civil penalty provisions
We publish this regulatory guide to assist the organisations and entities we regulate.
Division 7 of Part 13 of the Work Health and Safety Act 2011 (WHS Act) provides for WHS civil penalty provisions in the WHS Act and Work Health and Safety Regulations 2011 (WHS Regulations).
1. Prohibitions
If the words ‘WHS civil penalty provision’ appear in a provision of the WHS Act or WHS Regulations the provision is a WHS civil penalty provision.[1] This means that any penalty for a contravention is imposed on a civil, rather than criminal, basis.
In the WHS Act, the only WHS civil penalty provisions are found in Part 7 which relates to workplace entry by WHS entry permit holders.[2] Some of the prohibitions relate to WHS entry permit holders themselves,[3] while others relate to persons who interact with WHS entry permit holders performing their functions and powers.[4]
In the WHS Regulations, there are currently no WHS civil penalty provisions.
2. Proceedings
Court proceedings may be brought against a person for a contravention of a WHS civil penalty provision by:[5]
- Comcare
- an inspector, with the written authorisation of Comcare.
The proceedings can be brought in the Federal Court of Australia, the Federal Circuit and Family Court of Australia and some state and territory courts.[6] The limitation period for bringing proceedings for a contravention of a WHS civil penalty is within two years after the contravention first comes to Comcare’s notice.[7]
A contravention of a WHS civil penalty provision is not a criminal offence.[8] When hearing the proceedings for a contravention of a WHS civil penalty provision, a court must apply the rules of evidence and procedure for civil proceedings.[9]
3. Decision to bring proceedings
The matters that Comcare will take into account in deciding whether to bring proceedings for a contravention of a WHS civil penalty provision are analogous to the matters to be considered in deciding whether to institute or continue a prosecution,[10] but taking into account that the proceedings are civil rather than criminal and the prohibitions are at the less serious end of the range of prohibited conduct under WHS legislation.
An important factor for Comcare to consider is whether other proceedings are on foot or have been completed. Specific provisions deal with the interaction between proceedings for a contravention of a WHS civil penalty provision and certain other proceedings, including both civil and criminal proceedings and even proceedings under other legislation.[11] Comcare will take into account the operation of these provisions in the particular case.
4. Penalty
If the court is satisfied that a person has contravened a WHS civil penalty provision, it may order the person to pay a monetary payment that the court considers appropriate.[12] In addition, the court may make any other order it considers appropriate, including an injunction.[13]
The maximum monetary penalty for a contravention of a WHS civil penalty provision is specified in the provision itself.[14]
References
[1] Section 254 of the WHS Act.
[2] See section 254(1) of the WHS Act.
[3] For instance, section 146 of the WHS Act prohibits a WHS entry permit holder from acting in an improper manner in exercising, or seeking to exercise, rights in accordance with Part 7 of the WHS Act.
[4] For instance, section 144 of the WHS Act prohibits a person, without reasonable excuse, from refusing or unduly delaying entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under Part 7 of the WHS Act.
[5] Section 260 of the WHS Act.
[6] See the definition of 'court' in section 4 of the WHS Act.
[7] Section 261 of the WHS Act.
[8] Section 257 of the WHS Act.
[9] Section 258 of the WHS Act.
[10] See Comcare’s Prosecutions Regulatory Guide.
[11] Sections 263-266 of the WHS Act.
[12] Section 259(1)(a) of the WHS Act.
[13] Section 259(1)(b) of the WHS Act.
[14] Section 259(2) of the WHS Act. See also Part 3 of Schedule 4 – Penalty Amounts - of the WHS Act. The operation of Schedule 4 is discussed in Comcare’s Penalties Regulatory Guide.
