In Queensland, as in all Australian jurisdictions, breaches of duties owed under WHS laws are categorised as criminal offences. This means that offences under the respective WHS laws, as with other offences in the criminal jurisdiction, must be prosecuted and proven beyond reasonable doubt to result in a conviction. Penalties for WHS offences are usually fines, however, the most serious offences attract periods of imprisonment.
Criminal offences are usually focused on outcomes of the accused person’s conduct (e.g. proving property was stolen or someone was assaulted). WHS law, however, is directed at managing risk rather than on outcomes. The focus is on the elimination or minimisation of risks in order to secure the health and safety of workers and workplaces. The term ‘risk’ is not defined in WHS legislation, and courts have interpreted that risk should not be interpreted in a complicated manner.
The work health and safety legal framework in Queensland is comprised of three pieces of legislation:
The WHS Act sets out the requirements and standards for establishing and maintaining healthy and safe workplaces. One of the main objects of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.
The WHS Act aims to protect workers and other persons (for example, contractors, clients and other visitors to a workplace) against harm to their health, safety and welfare through the elimination or minimisation of risks. Under the WHS Act, health includes physical and psychological health.
The WHS Regulation provides detailed information on how to prevent or minimise risk in the workplace and how to comply with the duties owed in relation to certain activities or types of work. This includes construction work, hazardous atmospheres or chemicals, asbestos, confined spaces, plant, falls or falling objects, hazardous manual tasks, and diving work.
The 52 approved Codes provide practical guidance to achieve standards of health, safety and welfare required under the WHS Act and WHS Regulations.
A person conducting a business or undertaking (PCBU) has a duty to comply with an applicable Code under the WHS Act. Alternatively, a PCBU may follow another method, such as a technical or industry standard, if doing so provides an equivalent or higher standard of WHS to the standard required in a Code.
Workplace Health and Safety Queensland (WHSQ) has several functions aimed at securing compliance with the WHS Act, including monitoring and investigating suspected breaches of WHS laws. WHSQ’s powers are set out in the WHS Act and the WHS Regulation.
A key function of WHSQ inspectors is to investigate workplace incidents. WHSQ does not prosecute offences under the WHS Act. Rather it is responsible for gathering evidence and making recommendations as to whether a prosecution should be commenced.
The Office of the Work Health and Safety Prosecutor (OWHSP) is the independent WHS prosecutor established under the WHS Act. The OWHSP commenced operating in 2019. Queensland is the only Australian jurisdiction with an independent WHS prosecutor.
The OWHSP may bring proceedings for an offence under the WHS Act within two years after the offence first comes to the notice of the WHS prosecutor. If proceedings have not been commenced within two years but a coroner has reviewed the matter, the OWHSP has one year from the date a coronial report was made or inquiry/inquest ended in which to commence proceedings.
There are numerous duties and obligations imposed by the WHS Act on persons at a workplace. It is important to take a proactive approach towards health and safety to ensure compliance with the WHS Act, the WHS Regulation and applicable Codes, as this may assist in preventing a safety incident or minimising the risk of a prosecution if an incident occurs.
In defending a prosecution under the WHS Act, obtaining advice and representation from experienced WHS lawyers with expertise in criminal defence is imperative.
We have the strong technical knowledge of the health and safety duties and an intimate understanding of criminal procedure, enabling us to provide clear and practical advice and robust representation.