A contravention of the WHS civil penalty provisions is imposed on a civil, rather than criminal, basis. A monetary penalty also may apply.
Contraventions may relate to either an EPH or to a person who interacts with an EPH in the performance of their functions and powers.
See Part 7 of the Work Health and Safety Act 2012 (SA) for details of contraventions with a WHS civil penalty provision.
Proceedings for a contravention of a WHS civil penalty provision must be brought within two years of SafeWork SA first becoming aware of the contravention. A proceeding can be brought by:
- SafeWork SA
- an Inspector, with the written authorisation of SafeWork SA (either generally or in a particular case).
The proceedings can be brought in the SAET.
A person is involved in a contravention of a civil penalty provision if, and only if, the person has:
- aided, abetted, counselled or procured the contravention, or
- induced the contravention, whether by threats or promises or otherwise, or
- been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention, or
- conspired with others to effect the contravention.
SAET must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision.
Decision to bring proceedings
The matters that SafeWork SA will take into account in deciding whether to bring proceedings for a contravention of a WHS civil penalty provision are analogous to the matters to be considered in deciding whether to institute or continue a prosecution, but taking into account that the proceedings are civil rather than criminal and the prohibitions are at the less serious end of the range of prohibited conduct under WHS legislation.
An important factor for SafeWork SA to consider is whether other proceedings are on foot or have been completed. Specific provisions deal with the interaction between proceedings for a contravention of a WHS civil penalty provision and certain other proceedings, including both civil and criminal proceedings and even proceedings under other legislation. SafeWork SA will take into account the operation of these provisions in the particular case.
If the court is satisfied that a person has contravened a WHS civil penalty provision, it may:
- order the person to pay a monetary payment
- make any other order it considers appropriate, including an injunction.
The maximum amount for a monetary penalty for a contravention of a WHS civil penalty provision is specified in the provision itself. The amounts range from $2,000 to $50,000.