Were you aware that you can take a private prosecution under the Health and Safety at Work Act 2015? A private prosecution can be taken (S 144) when the regulator cannot or chooses not to prosecute a work health and safety event.

WorkSafe’s view on private prosecutions:

“We value private prosecutions as an important tool in the work health and safety system. They provide an opportunity for victims, their families or other parties to take a prosecution when WorkSafe does not.”

Who can bring a private prosecution?

Anyone can bring a private prosecution. In order to do so, you must have been notified by WorkSafe and advised that they, or any other regulatory agency, is not taking any action.

To ensure you get notified WorkSafe requires you to register your interest.

Once you have received notification that no action is being taken, you have to apply to the District Court for leave to file charges.

When do I have to file charges by?

Charges must be filed within the following timeframes:

  • Two years after the date on which the incident, situation or set of circumstances to which the offence relates first become known to WorkSafe or ought reasonably to have become known to WorkSafe.
  • Six months after the date on which a Coroner completes and signs a Certificate of Findings if it appears from the Certificate of Findings – or the proceeding of an inquiry – that an offence has been committed under the Act.
  • Three months after the expiry date of an extension granted to WorkSafe to make a decision to prosecute.
  • If an enforceable undertaking has been given in relation to the offence, six months after either:
    • the enforceable undertaking was contravened, or it comes to WorkSafe’s notice that the enforceable undertaking has been contravened or
    • WorkSafe has agreed to withdraw the enforceable undertaking under section 128 of the Act.

How do I get information regarding WorkSafe’s investigation or evidence that was obtained?

Requests can be made under the Official Information Act. In addition, Inspectors can be summonsed to give evidence in a prosecution. WorkSafe’s policy is clear that Inspectors will be available before and during a trial.

Private Prosecutions must be conducted in accordance with the Criminal Procedure Act and Rules, Evidence Act, and the Criminal Disclosure Act.

For More Information:

For more information or advice if you are considering whether or not to initiate a private prosecution, please feel free to call DeAnne Brabant, Senior Associate, on 04 8862642, or email deanne.brabant@morrisonkent.com.


Private Prosecutions - Health and Safety at Work