The Work Health and Safety Act 2011 (WHS Act) sets out four categories of offences. Each offence category attracts different penalties depending on the seriousness of the relevant conduct.
The WHS Act refers to penalty units. For ease of reference, the fine amounts are set out in dollar amounts below. For offences under the WHS Act, a penalty unit is $100.00.
Categories 1 through 3 inclusive involve an ‘individual’ being exposed to risk. This means anyone at the workplace, including workers, customers and visitors. Industrial manslaughter, however, is limited to where the death of a ‘worker’ has occurred.
Industrial manslaughter is the most serious offence under the WHS Act, although there are limits on who may be charged.
The offence only applies if the death of a worker is caused by the negligent conduct of a person conducting a business or undertaking (PCBU) or a senior officer (e.g. an executive officer of a company or an executive who makes or takes part in making decisions affecting all of the company).
A worker cannot be charged with industrial manslaughter, nor does the offence extend to the death of other persons beyond workers.
The maximum penalties for industrial manslaughter are:
You can read more detail about industrial manslaughter in Queensland here.
Category 1 offences under the WHS Act involve reckless conduct that exposes an individual to a risk of death or serious injury or illness without reasonable excuse.
Category 1 offences require the prosecution to prove the fault element of recklessness (i.e. that the person charged reasonably believed other persons were exposed to a risk of harm) in addition to proving the physical elements of the offence (i.e. the defendant’s conduct or a result of the conduct).
Category 1 offences are criminal offences. The maximum penalties* for category 1 offences are:
Category 2 offences occur when a person has a health and safety duty, and the person’s failure to comply with that duty exposes an individual to a risk of death or serious injury or illness.
Category 2 offences involve less culpability than category 1 offences because there is no fault element to be proved.
The maximum penalties* for category 2 offences are:
Category 3 offences are the least serious category of offence. Category 3 offences occur when a person has a health and safety duty and fails to comply with that duty. However, they do not involve exposing an individual to a risk of death or serious injury or illness.
The maximum penalties* for category 3 offences are:
A summary offence (also known as a simple offence) is considered a less serious offence. Examples of summary offences in criminal law include public nuisance and trespass. If a criminal offence is not otherwise designated (e.g. as a misdemeanour or crime), it is then a summary offence. Summary offences are heard and determined in the Magistrates Court. Category 2 and 3 WHS offences are summary offences.
Category 1 WHS offences and industrial manslaughter are indictable offences that commence in the Magistrates Court, however, must be prosecuted on an indictment (a written charge by a person authorised to prosecute serious criminal offences). These charges are prosecuted in the District Court before a judge and jury. In certain circumstances, a trial may proceed before a judge alone.
Following a plea of guilty or a finding of guilt after trial, matters proceed to sentencing. The penalties indicated above are maximum penalties that can be imposed by a court, and there are other sentencing options available.
Sentencing options in the Magistrates Court and District Court are determined by legislation, including the Justices Act 1886, the District Court of Queensland Act 1967, and the Penalties and Sentences Act 1992 (the PS Act).
When sentencing under the WHS Act, courts have the same range of sentencing options available as per other criminal offences, including:
Under the WHS Act, there are specific sentences for WHS offences, including:
The PS Act provides that a Court may exercise a discretion to record or not record a conviction against an offender, having regard to all circumstances of a case, including:
Following a sentence for a WHS prosecution, the Office of the Work Health and Safety Prosecutor (OWHSP) will publish a summary of the sentence proceedings on its website. If a conviction is not recorded, the defendant’s details will be anonymised. If a conviction is recorded, the OWHSP will publish identifying details of corporate and individual defendants.
Gilshenan & Luton are specialist criminal defence and WHS lawyers. We have expertise in defending individuals and companies charged with offences under the WHS Act.
If you have been charged with an offence under the WHS Act, we can assist you by:
* Penalties current as at August 2023