South Australian Current Acts

WORK HEALTH AND SAFETY ACT 2012 - SECT 231

231—Procedure if prosecution is not brought

        (1)         This section applies if—

            (a)         a person—

                  (i)         reasonably considers that the occurrence of an act, matter or thing constitutes an industrial manslaughter offence, a Category 1 offence or a Category 2 offence; or

                  (ii)         reasonably considers, from a coronial report or the proceedings at a coronial inquiry or inquest, that an industrial manslaughter offence, a Category 1 offence or a Category 2 offence has been committed; and

            (b)         no prosecution for the offence has been brought.

        (1a)         The person may make a written request to the regulator that a prosecution be brought.

        (1b)         The request may only be made—

            (a)         if subsection (1)(a)(i) applies—at least 6 months, but no more than 24 months after the act, matter or thing occurs; or

            (b)         if subsection (1)(a)(ii) applies—within 12 months after the report is made or the inquiry or inquest ends.

Note—

See section 232 in relation to the limitation period for prosecutions.

        (2)         Within 3 months after the regulator receives a request the regulator must—

            (a)         advise the person (in writing)—

                  (i)         whether the investigation is complete; and

                  (ii)         if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought (which must include sufficient detail that the basis for the decision can be readily understood); and

            (b)         advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).

        (2a)         If, under subsection (2)(a)(i), the regulator advises the person that the investigation is not complete, the regulator must—

            (a)         until the investigation is complete, give the person a written update about the investigation at least every 3 months; and

            (b)         when the investigation is complete, give the person a written notice stating—

                  (i)         whether a prosecution will be brought; and

                  (ii)         if a prosecution will not be brought—the reasons why (which must include sufficient detail that the basis for the decision can be readily understood).

        (3)         If the regulator advises the person under subsection (2) or (2a) that a prosecution for an industrial manslaughter, Category 1 or Category 2 offence will not be brought, the regulator must—

            (a)         advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration; and

            (b)         if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request.

        (4)         The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought.

        (5)         The regulator must ensure a copy of the advice is given to—

            (a)         the person who made the request; and

            (b)         the person who the applicant believes committed the offence.

        (6)         If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).

        (7)         In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing.