From 1 January 2009, changes introduced by the Workplace
Health and Safety and other Legislation Amendment Act 2008
(Qld) (Amendment Act) expressly permit the
prosecution of government departments under the Workplace
Health and Safety Act 1995 (Qld) (WHS Act)
and the Electrical Safety Act 2002 (Qld) (ES
To date, government departments in Queensland, whilst strictly
speaking being bound by the WHS Act, have enjoyed immunity from
prosecution. Queensland government departments have been expressly
excluded from prosecution under the ES Act since its commencement
in 2002. The Amendment Act changes this and "offending"
departments can now be issued with prohibition and improvement
notices and may be prosecuted for breaches of the WHS Act and ES
Act, in the same way as any obligation holder.
The Amendment Act largely adopts the recommendations of an
independent review conducted by Mr Robin Stewart- Crompton, Chair
of the Federal Government's National Review Panel for model
Occupational Health and Safety laws, into the current workplace
health and safety enforcement framework in Queensland.
The ability to prosecute government departments for workplace
health and safety offences brings Queensland into line with other
states. For example, workplace health and safety authorities in
Victoria, Western Australia, South Australia and New South Wales
all have the right to prosecute the State and its departments.
Public Sector Now No Different To Private Sector
Workplace Health and Safety Queensland's and the Queensland
Electrical Safety Office's ability to issue notices and
prosecute government departments clarifies that the public sector
is exposed to the same risk of prosecution as the private sector
arising from workplace health and safety and electrical safety
Time will tell whether senior public servants will be held
personally liable under the WHS Act or ES Act. At this stage,
senior public servants cannot be prosecuted for workplace health
and safety or electrical safety breaches by their department
compared to executive officers of a corporation who can be
prosecuted for a breach of the WHS Act or ES Act by their
The maximum penalty for contraventions of the WHS Act or ES Act
by the public sector will be the same as for the private sector.
From 1 January 2009, the maximum penalty for breach of the WHS Act
or ES Act will be $1 million for multiple deaths (up from $750,000)
due to an increase in the value of a penalty unit in Queensland
(from $75 to $100).
The Amendment Act states that departments may also enter into
and be bound by an enforceable undertaking. Like corporations, the
public sector will now be entitled to apply to enter into
enforceable undertakings for alleged contraventions of the ES Act
or the WHS Act. In accordance with Part 5 of the WHS Act and ES
Act, the new administrative system will involve the
Director-General of the "offending" department entering
into a written undertaking with the Director-General of the
Department of Employment and Industrial Relations
The likely outcome of a successful prosecution will be a fine
paid by the government department to DEIR. Given this outcome and
the trend in other states for workplace health and safety
authorities to favour other enforcement mechanisms, it will be
interesting to see if the power to prosecute government departments
will be used regularly or at all. For example, in Victoria, during
the five year period from 1999-2004, six prosecutions were brought
by WorkSafe Victoria against government departments. In contrast,
for the financial year ended 30 June 2001, more than 200
improvement notices were issued to the three largest government
departments. This looks like the approach that will be favoured in
Queensland, with Mr Mickel, Minister for Transport, Trade and
Industrial Relations, indicating in his second reading speech that
the preference in Queensland will be for enforceable undertakings
rather than prosecutions "in all but the most serious
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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