Work Health Authority (WHA) general guidelines for prosecutions

This information bulletin provides guidelines about the way prosecutions are conducted by the Work Health Authority (WHA). These guidelines are published in accordance with section 230(3)(a) of the Work Health and Safety (National Uniform Legislation) Act – the WHS (NUL) Act.

The Work Health Authority administers work health and safety laws in the Northern Territory.
These laws include the:

  • Work Health and Safety (National Uniform Legislation) Act
  • Work Health and Safety (National Uniform Legislation) Regulations

The laws can be accessed via the NT WorkSafe website.

The National Compliance and Enforcement Policy outlines the aims of compliance and enforcement as well as the compliance and enforcement tools available to work health and safety regulators. The policy also sets outs general information about prosecutions, including the criteria used by regulators to determine whether or not to initiate prosecution and the timeframes for initiating such action.

The policy can be accessed on the NT WorkSafe website or by contacting NT WorkSafe on 1800 019 115.

The decision to prosecute or not must be based upon the evidence, the law and Director of Public Prosecutions Guidelines.

The DPP guidelines can be accessed on theinternet by searching NT DPP – about us – publications.

Courts

Prosecutions for work health and safety laws are heard in the following courts:

  • Court for a category 1 offence[1];
  • Magistrates Court for a category 2 or 3 offence;
  • Magistrates Court for a category 3 offence;
  • Magistrates Court for a contravention of an enforceable undertaking;
  • Work Health Court for contraventions of a civil penalty provision.

Prosecution Initiation

The Executive Director of NT WorkSafe, who is appointed as the Work Health Authority, may commence prosecutions under the WHS (NUL) Act. The Executive Director can also authorise an Inspector[2] to take proceedings for an offence under the WHS (NUL) Act.

Prosecutions for matters that are heard before the Magistrates Court of the Northern Territory are initiated by a complaint being filed with the Court. The Work Health Authority will serve a copy of the complaint and summons on the defendant. Service may be affected by way of delivery in-person or via registered post to the defendant. The summons will provide the time date and location that the defendant is required to appear in answer to the complaint.

Court Response

Once the complaint has been responded to, by way of both parties presenting at the court, the court will govern the course the matter will take. This will depend on the court and what approach the parties take to the matter, for example, if the defendant chooses to enter a guilty plea or seeks to adjourn the matter to a later date and time.

A range of direction orders may be made by the court. For example, a direction hearing may be held and a variety of orders may be made at that time, including the exchange of material.

If the defendant enters a plea of guilty to the offence, the matter is usually set down for sentence hearing or may be heard on the date that the plea is entered. If the defendant enters a plea of not-guilty, the matter is set down for a trial/hearing.

Depending on the matter to be heard, a trial/hearing may take a day, several days or longer and may be split during a period of weeks or months. For example, the matter may be part heard in May and then adjourned until August for further hearing.

If a trial/hearing is held, the court may choose to deliver its decision on the final day of the trial/hearing or may reserve the decision for a later time, dependant on the complexity of the matter and the court's availability.

Steps in the Court Process

Category 1 offences have a committal procedure in the Magistrates Court of the Northern Territory. If it is determined that there is a case to answer, the matter is remitted to the Supreme Court of the Northern Territory for a hearing/trial. These matters are heard before a judge and a jury.

All matters set before the Magistrates Court of the Northern Territory(category 2 and 3 offences, contraventions of enforceable undertakings and all other offences) are heard by an individual Magistrate and not before a jury.

In both these courts, the Magistrate or Judge can make certain orders that may relate to a case, for example, the exchange of material. Further, the Magistrate or Judge can adjourn the matter to another date and time and set the matter down for trial.

When a matter is first heard before the Magistrates Court of the Northern Territory, this may be referred to as the 'first mention' of the matter. These mentions are then referred to by way of number. For example, second, third, fourth mention etc. until a hearing/trial date is set.

The Court Process

Magistrates Court

Supreme Court

Sentencing Options

The WHS (NUL) Act prescribes the maximum penalties applicable to offences. In addition to those penalties the WHS (NUL) Act also prescribes other sentencing options, namely:

  • adverse publicity orders;
  • orders for restoration;
  • work health and safety project orders;
  • court-ordered work health and safety undertakings; and
  • training orders.

In addition to these penalties the Court pursuant to the provisions of the Sentencing Act may impose other sentencing options, including:

  • suspended sentence;
  • good behaviour bond;
  • community service order;
  • conviction.

Appeals

Decisions and sentences determined and delivered in the magistrates court may be appealed to the SupremeCourt.

Decisions and sentences determined and delivered in the Supreme Court by a single justice may be appealed to the Court of Criminal Appeal.

A decision of the Criminal Court of Appeal may be appealed to the High Court of Australia.

Records of court process and decisions

Decisions of the Magistrates courts may be published. Published decisions from the Magistrates Court are available on the Northern Territory Magistrates Courts website.

Information about the Status of Court Proceedings

The Director Operations, NT WorkSafe will provide the next of kin of a worker fatally injured or the carer of a person very seriously injured, in a workplace incident, with information about the status of court proceedings if requested.

Contact us

For further information please contact us on 1800 019 115, facsimile (08) 8999 5141, via email at or go to the NTWorkSafe website at

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Work Health Authority (WHA) general guidelines for prosecutions (V1.2 – 3September2014)

[1] A category 1 offence is punishable by a term of imprisonment for 5 years (s31(1)(c) WHS Act. Therefore section 121A of the Justices Act applies. As a consequence a category 1 offence may be dealt with by the Court of Summary Jurisdiction (Magistrate’s Court).

NOTE: The prosecutor and defendant must both consent and the Court must be satisfied that the case is an appropriate one for the prosecution to be heard in the CSJ (s121A (1)(c)(d)(e) and (f)). Should any of those pre-conditions not be met then the matter is to be heard in the Supreme Court.

[2] Per s230(1)(b)