A prosecution takes place when a person or company is accused of committing an offence and prosecution proceedings are commenced to determine whether they have committed the offence or not.
Under the Work Health and Safety Act 2012, SAET can hear cases about an alleged failure to comply with a health and safety duty and which may have exposed an individual to a risk of injury or illness.
SAET also hears other prosecutions, including charges laid under the Return to Work Act 2014.
When SAET hears prosecutions it sits as the South Australian Employment Court (the Court).
Who is involved?
SafeWork SA usually starts the prosecution with a solicitor from the Crown Solicitor’s Office prosecuting the matter. In such a case SafeWork SA would be the informant that lays the charge before the Court. The defendant would be the person who allegedly committed the offence.
The parties to the case would be SafeWork SA and one or more defendants.
If the matter is a criminal prosecution, the prosecutor bears the onus of proving beyond reasonable doubt each element of the charges. The defendant does not have to prove innocence.
The informant is responsible for serving a copy of the Information and Summons on the defendant and subsequently filing with the Court a “proof of service”.
A witness summons is a document issued by the Court directing a person to attend Court and provide evidentiary material such as documents.
The party who has requested the issue of a witness summons is responsible for paying the reasonable costs and travelling expenses of the person summonsed to Court. The witnesses give their evidence on oath.
What can I expect?
Upon lodgement with the Court a first court date is allocated.
The defendant may plead guilty or not guilty on the first court date. If the defendant does not plead guilty, the proceedings may be adjourned to enable the defendant to seek legal advice and representation.
A defendant who pleads guilty may be given an adjournment while obtaining information, evidence and reports for submissions on penalty.
If on the second court date the defendant advises the Court that they intend to plead not guilty, the Court will set a date for hearing. The Court may also set a pre-trial conference to deal with any issues in advance of the hearing date.
Court hearings are open to the public, but an application may be made to close all or part of the hearing at any time.
The Court will normally hear cases at the Riverside Centre on North Terrace, Adelaide, but hearings may be conducted elsewhere by audio visual links to remote locations.
If the defendant enters a plea of not guilty the Court shall formally hear the charge. If the charge is a serious offence, the defendant may choose a jury trial in the District Court.
Decisions are provided to the parties and published on the Austlii website.
Fines for breaches of the Work Health and Safety Act 2012 range from $50,000 to $300,000 for individuals, and $500,000 to $3 million for corporations, depending on the offence.
If the Court predicts that the likely penalty will be more than $300,000, they will refer the sentencing stage to the District Court.
The Court has the authority to reduce a penalty by as much as 40 per cent if an early guilty plea is offered.
The Court may impose a non-pecuniary penalty in addition to or in substitution of a fine. This penalty may be compulsory training, developing an occupational health and safety improvement project, or publication of the details of the offence and outcome in the media or on a defendant’s website.
An individual or corporation found guilty of a WHS offence has 1 month to appeal the Court’s decision. There is no fee to file an appeal.
To initiate an appeal you must complete an Application for review or appeal form (below) and complete three (3) copies. When you file the appeal in the Registry, each copy will be date stamped. One copy will be retained for the file, and two will be returned to you. You must serve one copy on the informant and keep one for your own records.
A Full Bench of the Court will hear the appeal.
The Court may suspend the operation of an order until the determination of the appeal.
Can I bring a lawyer or representative?
If you are charged with an offence, it is advisable to seek expert legal advice as soon as possible. It is, however, not compulsory to have legal representation.
Where do I find the forms?
- A25 – Information and summons
- P90 – Application for search warrant (Work health and safety)
- P03 – Affidavit
- A96 – Application to appeal (SAET Act)
These can also be downloaded from the forms page.
Is there a cost?
There are fees for filing a prosecution matter, payable by the prosecution.
If a guilty plea has been entered the informant will be entitled to costs, which are usually awarded under the Magistrates Court Criminal Scale of Costs. A defendant found guilty of an offence may be ordered to pay the filing fee, a victims of crime levy amount of $160 per offence charged, and legal costs.
If you are a defendant and the informant fails to establish your guilt at trial, you may be entitled to seek all or some of your legal costs.
How do I pay a penalty?
Within about seven days of the verdict, the Court will issue a penalty notice.
The notice outlines:
- the file reference number you should use for any enquiries (different from the file number previously issued)
- the amount owed and due date (normally 28 days from the notice issue date)
- where and how to pay
- what to do if you may not be able to pay by the due date.
If you don’t receive the penalty notice within 14 days you should call 1800 659 538 (free call).
Any monetary sentence in criminal proceedings that is imposed by SAET (can include a fine, compensation, costs, Victims of Crime levy, bonds/guarantees and any other amount ordered by the Court) is payable to the Fines Enforcement and Recovery Officer under s67(1) of the Criminal Law (Sentencing) Act 1988.
Where can I find more information?
For more information about Work Health and Safety Act offences and procedures go to SafeWork SA