Section 231(1) of the WHS Act allows for a person who reasonably considers that a certain offence has been committed but where no prosecution has been brought, to ask SafeWork SA in writing to bring a prosecution.

The request can only be made if no prosecution has been brought between six and 24 months after the event has occurred.

No, the procedure under section 231 only applies to industrial manslaughter, category one or two offences, which are the most serious criminal offences under the WHS Act. These offences are provided for under sections 30A, 31 and 32 of the WHS Act respectively.

An industrial manslaughter offence occurs when a person has a health and safety duty and engages in conduct that breaches that duty to which causes the death of an individual to whom that duty is owed and if the person engages in the conduct with gross negligence or is reckless as to the risk to an individual of death or serious injury or illness.

A category one offence occurs when a person has a health and safety duty, and without reasonably excuse engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and the person engages in the conduct with gross negligence or is reckless as to the risk to an individual of death or serious injury or illness. Prosecutions for a category one offence are expected to be rare.

A category two offence occurs where a person has a health and safety duty and fails to comply with that duty, and the failure exposes an individual to a risk of death or serious injury or illness.

There is a further category of offence, category three, which occurs where a person has a health and safety duty, and the person fails to comply with the duty. The category three offence is not covered by section 231 of the WHS Act.

The request should refer to section 231 of the WHS Act and state that it is a request under that section. To assist SafeWork SA in assessing and progressing your request you should set out the facts of the event, including the date, place and names of the people concerned, and the nature of the offence you believe has occurred. The request should identify the person you believe committed the offence.

The request should also include your contact details, so that SafeWork SA can contact you to obtain further information. In some cases, SafeWork SA may ask you to provide a statement or other information in support of your request.

The request must be in writing using a dedicated form.

The request must be made to SafeWork SA after six months but not later than 24 months after the act, matter or thing has occurred.

To request for SafeWork SA to commence a prosecution, please click here.

SafeWork SA will maintain confidentiality over your details to the extent required and permissible by law. Section 271 of the WHS Act titled ‘Confidentiality of Information’ outlines the requirements and provisions as it relates to the protection and use of information.

To properly investigate some matters, it may be necessary to disclose to another person some of the details of the information you have provided, therefore your identity may become known.

Section 231 of the WHS Act also requires SafeWork SA to tell the person who you believe committed the offence of the application and SafeWork SA’s decision.

If a request is made to SafeWork SA within the specified time (i.e. between six and 24 months of the alleged offence) and the investigation is not complete, SafeWork SA is required to advise the applicant every three months of that fact and also undertake to inform the applicant when the investigation is complete and must notify the applicant of its decision as to whether to prosecute or if a prosecution will not be brought and the reasons why.

SafeWork SA will not enter into any proposed enforceable undertaking until such time as the request under section 231 of the WHS Act has been assessed and determined.

Yes, only if the enforceable undertaking is contravened.

Should you be advised of SafeWork SA’s decision to not prosecute, SafeWork SA will advise you, as part of their advice, that you may make a written request for the matter to be referred to the DPP.

A request for SafeWork SA to refer the matter to the DPP should be sent to SafeWork SA via email at agdswsaolst@sa.gov.au.

SafeWork SA is required to forward your request for a referral to the DPP within one month of the request for consideration.

No, if SafeWork SA declines to follow the DPP’s advice to bring proceedings, SafeWork SA must give the applicant the written reasons for the decision. The reasons must be given to the applicant who made the request and the person who the applicant believes committed the offence.

Yes, the DPP has a general power to bring proceedings for an offence against the WHS Act if they believes it is necessary.