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 Act).

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.

Other Jurisdictions

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 incidents.

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 corporation.

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).

Enforceable Undertaking

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 (DEIR).

Concluding Remarks

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 cases".

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