Part 13Legal proceedings

Part 13—Legal proceedings Division 1—General matters 230—Prosecutions (1) Subject to subsection (9), proceedings for an offence against this Act may only be brought by— (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). (2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons. (3) The regulator must issue, and publish on the regulator's website, general guidelines in relation to— (a) the prosecution of offences under this Act; and (b) the acceptance of WHS undertakings under this Act. (3a) The South Australian Employment Court is conferred with jurisdiction to try a charge for a summary offence or a minor indictable offence (if such an offence is to be dealt with as a summary offence) under this Act. (4) Subject to subsection (6), an indictable offence against this Act may be charged on complaint and, in such a case, the offence will be taken to be a summary offence but if the South Australian Employment Court determines that a person found guilty of such an offence should be subject to a fine exceeding $1 500 000 the court may remand the defendant to appear for sentence in the District Court. (5) An offence constituted by a summary offence under subsection (4) will be taken to be a summary offence that lies within the jurisdiction of the South Australian Employment Court. (6) Subsection (4) does not apply to or in relation to— (a1) an industrial manslaughter offence; or (a) a Category 1 offence; or (b) a Category 2 offence where the alleged offender is a body corporate; or (c) a Category 3 offence where the alleged offender is a body corporate. (7) Subject to subsection (10), committal proceedings for a minor indictable offence under this Act must be conducted by a magistrate who is a member of the South Australian Employment Court. (8) A charge for a minor indictable offence under this Act that is to be dealt with as a charge for a summary offence under the Summary Procedure Act 1921 will be heard by a magistrate who is a member of the South Australian Employment Court (and the Court is vested with jurisdiction to deal with the matter). (9) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act. (10) Despite subsections (7) and (8) or any other provision of this Act, a summary or minor indictable offence against this Act that is charged on the same information as a major indictable offence against this Act or any other Act will be dealt with according to the procedures applicable to major indictable offences under the Criminal Procedure Act 1921. See section 102(3) of the Criminal Procedure Act 1921. (11) Section 6A(3) of the South Australian Employment Tribunal Act 2014 does not apply in relation to a summary or minor indictable offence referred to in subsection (10). (12) To avoid doubt, an information for a major indictable offence against this Act must be laid in the Magistrates Court and be dealt with according to the procedures applicable to major indictable offences under the Criminal Procedure Act 1921. 231—Procedure if prosecution is not brought (1) This section applies if— (a) a person— (i) reasonably considers that the occurrence of an act, matter or thing constitutes an industrial manslaughter offence, a Category 1 offence or a Category 2 offence; or (ii) reasonably considers, from a coronial report or the proceedings at a coronial inquiry or inquest, that an industrial manslaughter offence, a Category 1 offence or a Category 2 offence has been committed; and (b) no prosecution for the offence has been brought. (1a) The person may make a written request to the regulator that a prosecution be brought. (1b) The request may only be made— (a) if subsection (1)(a)(i) applies—at least 6 months, but no more than 24 months after the act, matter or thing occurs; or (b) if subsection (1)(a)(ii) applies—within 12 months after the report is made or the inquiry or inquest ends. See section 232 in relation to the limitation period for prosecutions. (2) Within 3 months after the regulator receives a request the regulator must— (a) advise the person (in writing)— (i) whether the investigation is complete; and (ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought (which must include sufficient detail that the basis for the decision can be readily understood); and (b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a). (2a) If, under subsection (2)(a)(i), the regulator advises the person that the investigation is not complete, the regulator must— (a) until the investigation is complete, give the person a written update about the investigation at least every 3 months; and (b) when the investigation is complete, give the person a written notice stating— (i) whether a prosecution will be brought; and (ii) if a prosecution will not be brought—the reasons why (which must include sufficient detail that the basis for the decision can be readily understood). (3) If the regulator advises the person under subsection (2) or (2a) that a prosecution for an industrial manslaughter, Category 1 or Category 2 offence will not be brought, the regulator must— (a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration; and (b) if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request. (4) The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought. (5) The regulator must ensure a copy of the advice is given to— (a) the person who made the request; and (b) the person who the applicant believes committed the offence. (6) If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5). (7) In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing. 232—Limitation period for prosecutions (1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur: (a) within 2 years after the offence first comes to the notice of the regulator; (b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act; (ba) if a matter has been referred to the Director of Public Prosecutions under section 231(3)(b), within 1 month after the Director provides the regulator with advice under section 231(4) as to whether the Director considers that a prosecution should be brought; (c) if a WHS undertaking has been given in relation to the offence, within 6 months after— (i) the WHS undertaking is contravened; or (ii) it comes to the notice of the regulator that the WHS undertaking has been contravened; or (iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking. (2) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. (3) This section does not apply to proceedings for an industrial manslaughter offence. 233—Multiple contraventions of health and safety duty provision (1) Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2. Division 2—Sentencing for offences 234—Application of this Division (1) This Division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act. (2) A reference in this Division to a court is a reference to the court referred to in subsection (1). 235—Orders generally (1) One or more orders may be made under this Division against the offender. (2) Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 236—Adverse publicity orders (1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender— (a) to take either or both of the following actions within the period specified in the order: (i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and (b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. (3) If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order. (4) However, if— (a) the offender gives evidence to the regulator in accordance with subsection (1)(b); and (b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order, the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions. (5) If the regulator or a person authorised in writing by the regulator takes an action or actions in accordance with subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the regulator. 237—Orders for restoration (1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy. (2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period. 238—Work health and safety project orders (1) The court may make an order requiring the offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order. (2) The order may specify conditions that must be complied with in undertaking the specified project. 239—Release on the giving of a court‑ordered WHS undertaking (1) The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions (a court‑ordered WHS undertaking). (2) A court‑ordered WHS undertaking must specify the following conditions: (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; (b) that the offender does not commit, during the period of the adjournment, any offence against this Act; (c) that the offender observes any special conditions imposed by the court. (3) An offender who has given a court‑ordered WHS undertaking under this section may be called on to appear before the court by order of the court. (4) An order under subsection (3) must be served on the offender not less than four days before the time specified in it for the appearance. (5) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court‑ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding. 240—Injunctions If a court finds a person guilty of an offence against this Act, the court may issue an injunction requiring the person to cease contravening this Act. An injunction may also be obtained under section 215 for non‑compliance with a non‑disturbance notice, improvement notice or prohibition notice. 241—Training orders The court may make an order requiring the person to undertake or arrange for 1 or more workers to undertake a specified course of training. 242—Offence to fail to comply with order (1) A person must not, without reasonable excuse, fail to comply with an order under this Division. (3) This section does not apply to an order or injunction under section 239 or 240. Division 3—Infringement notices 243—Infringement notices A reference in this Act to an infringement notice will be taken to be a reference to an expiation notice issued under the Expiation of Offences Act 1996 (and an expiation notice may be issued with relation to any matter that may be the subject of an infringement notice under this Act). Division 4—Offences by bodies corporate 244—Imputing conduct to bodies corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. Division 5—The Crown 245—Offences and the Crown (1) If the Crown is guilty of an offence against this Act, the penalty to be imposed on the Crown is the penalty applicable to a body corporate. (2) For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown. (3) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness. (4) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the Crown for that offence if the person referred to in subsection (2) made that mistake of fact. 246—WHS civil penalty provisions and the Crown (1) If the Crown contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the Crown is the penalty applicable to a body corporate. (2) For the purposes of a WHS civil penalty provision, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown. (3) If a WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the Crown for a contravention of that provision to prove that the person referred to in subsection (2) had that knowledge. 247—Officers (1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act. (2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act. 248—Responsible agency for the Crown (1) A provisional improvement notice, improvement notice, prohibition notice, non‑disturbance notice, infringement notice or notice of entry under Part 7 to be given to or served on the Crown under this Act may be given to or served on the responsible agency. (2) If an infringement notice is to be served on the Crown for an offence against this Act, the responsible agency may be specified in the infringement notice. (3) If proceedings are brought against the Crown for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be specified in any document initiating, or relating to, the proceedings. (4) The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the Crown for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused or defendant in the proceedings are conferred or imposed on the responsible agency. (5) The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court's leave. (6) In this section— responsible agency— (a) in relation to a notice referred to in subsection (1) is— (i) in the case of a provisional improvement notice, improvement notice or infringement notice, the agency of the Crown the acts or omissions of which are alleged to contravene this Act; and (ii) in the case of a prohibition notice, the agency of the Crown which has control over the activity referred to in section 195(1)(a) or (b); and (iii) in the case of a non‑disturbance notice, the agency of the Crown with the management and control of the workplace; and (iv) in the case of a notice of entry under Part 7, the agency of the Crown conducting the relevant business or undertaking or with the management and control of the workplace; and (b) in relation to an offence or proceedings for a contravention of this Act, is the agency of the Crown— (i) the acts or omissions of which are alleged to constitute the offence or contravention; or (ii) if that agency has ceased to exist, that is the successor of that agency; or (iii) if that agency has ceased to exist and there is no clear successor, that a court with jurisdiction to hear the relevant proceedings declares to be the responsible agency. Division 6—Public authorities 249—Application to public authorities that are bodies corporate This Division applies only to public authorities that are bodies corporate. 250—Proceedings against public authorities (1) Proceedings may be brought under this Act against a public authority in its own name. (2) Nothing in this Division affects any privileges that a public authority may have under the Crown. 251—Imputing conduct to public authorities (1) For the purposes of this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person referred to in subsection (1) made that mistake of fact. 252—Officer of public authority A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act. 253—Proceedings against successors to public authorities (1) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority. (2) An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority. (3) Similarly, any penalty paid by a public authority in relation to an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority. Division 7—WHS civil penalty provisions 254—When is a provision a WHS civil penalty provision (1) A subsection of this Act (or a section that is not divided into subsections) is a WHS civil penalty provision if— (a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or (b) another provision of this Act specifies that the subsection (or section) is a WHS civil penalty provision. (2) A subregulation (or a regulation that is not divided into subregulations) is a WHS civil penalty provision if— (a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subregulation (or regulation); or (b) another provision of the regulations specifies that the subregulation (or regulation) is a WHS civil penalty provision. 255—Proceedings for contravention of WHS civil penalty provision Subject to this Division, proceedings may be brought in SAET against a person for a contravention of a WHS civil penalty provision. 256—Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil penalty provision if, and only if, the person— (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 257—Contravening a civil penalty provision is not an offence A contravention of a WHS civil penalty provision is not an offence. 258—Civil proceeding rules and procedure to apply Despite section 32 of the South Australian Employment Tribunal Act 2014, SAET must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision. 259—Proceeding for a contravention of a WHS civil penalty provision (1) In a proceeding for a contravention of a WHS civil penalty provision, if SAET is satisfied that a person has contravened a WHS civil penalty provision, SAET may— (a) order the person to pay a monetary penalty that the court considers appropriate; and (b) make any other order that SAET considers appropriate, including an injunction. (2) A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty specified under Part 7 or the regulations in relation to a contravention of that WHS civil penalty provision. 260—Proceeding may be brought by the regulator or an inspector Except as provided in section 260A, proceedings for a contravention of a WHS civil penalty provision may only be brought by— (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). 260A—Proceeding may be brought by a party for contravention of certain orders relating to arbitrations (1) If an order made for the purposes of arbitration under section 102C(3) or 142(3) is contravened, proceedings may be brought in SAET against a person for the contravention of the relevant WHS civil penalty provision by a person affected by the contravention of the order. (2) Proceedings under this section must be instituted within 1 month after the day on which the contravention of the order first occurred. (3) The Registrar of SAET must ensure that a copy of an application made under this section is provided to the regulator. (4) If, in proceedings under this section, SAET finds that a party has contravened an order under section 102C(3) or 142(3), SAET should (in addition to any monetary penalty imposed) also order that the contravening party pay the applicant's reasonable costs in relation to the proceedings unless SAET is satisfied that it would be contrary to the interests of justice to make such an order. (5) If SAET orders the payment of costs, the amount ordered may be recovered in a court of competent jurisdiction as a debt. 261—Limitation period for WHS civil penalty proceedings Proceedings for a contravention of a WHS civil penalty provision may be brought within 2 years after the contravention first comes to the notice of the regulator. 262—Recovery of a monetary penalty (1) In connection with proceedings before SAET for the purposes of this Division, if SAET orders a person to pay a monetary penalty— (a) the penalty is payable to the State; and (b) the penalty may be recovered in a court of competent jurisdiction as a debt; and (c) the order is enforceable, and any action may be taken in respect of the order, as if it were a judgment or order of the appropriate court. (2) In this section— appropriate court means— (a) in relation to an order for an amount that does not exceed the jurisdictional limit of the Magistrates Court for a monetary claim founded on contract—the Magistrates Court; or (b) in any other case—the District Court. 263—Civil double jeopardy SAET must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention. 264—Criminal proceedings during civil proceedings (1) Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if— (a) criminal proceedings are commenced or have already commenced against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. (2) The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence. Otherwise, the proceedings for the order are dismissed. 265—Criminal proceedings after civil proceedings Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259. 266—Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if— (a) the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. (2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision. Division 8—Civil liability not affected by this Act 267—Civil liability not affected by this Act Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as— (a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, with relation to breaches of duties or obligations imposed by the regulations.