If someone considers that an offence against the OHS Act has occurred, and the WorkSafe does not prosecute, can anything be done? The 2004 Act gives such a person the right to request in writing that the Authority prosecute. This is under Section 131 of the Act:
131. Procedure if prosecution is not brought
- If -
- a person considers that the occurrence of an act, matter or thing constitutes an offence against this Act; and
- no prosecution has been brought in respect of the occurrence of the act, matter or thing within 6 months of that occurrence—
the person may request in writing that the Authority bring a prosecution. (A draft generic letter can be downloaded here)
- Within 3 months after the Authority receives a request it must -
- investigate the matter; and
- following the investigation, advise (in writing) the person whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought.
- If the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
- The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.
- The Authority must ensure a copy of the advice is sent to the person who made the request and, if the Authority declines to follow advice from the Director of Public Prosecutions to bring proceedings, the Authority must give the person written reasons for its decision.
- The Authority must include in its annual report, and publish on its website, a statement setting out -
- the number of requests received by the Authority under sub-section (1); and
- the number of cases in which the Authority has advised under sub-section (2)(b) that a prosecution has been or will be brought, or will not brought; and
- the number of cases in which the Director of Public Prosecutions has advised under sub-section (4) that a prosecution should be brought or should not be brought.
Amendment (September 2018) - inserted: If the Authority's investigation is still ongoing, then it will advise that a further report will be given within 3 months after the date of the response, and after every subsequent 3-month period, until the investigation is completed
Proceedings for indictable offences must be brought within 2 years after the offence is committed or the Authority becomes aware the offence was committed OR at any time with the written authorisation of the Director of Public Prosecutions.
Last amended October 2018