WorkSafe ACT backs 'hybrid model' to prosecute safety breaches, rejects recommendation to hire in-house prosecution team

But WorkSafe ACT has backed a hybrid model that includes allowing the work health and safety commissioner to engage external lawyers to pursue prosecutions over breaches of safety laws, which it believes will expand the types of breaches it can pursue in the courts.

All industrial manslaughter prosecutions would continue to be handled by the Director of Public Prosecutions.

"It is WorkSafe ACT's strong view that the proposed hybrid model will promote a quicker and more consistent approach to prosecutorial decision making. The hybrid model would also facilitate enforcement of a broader scope of offences across a wider range of industries, for example health and community services and beyond physical injuries to include psychosocial injuries such as bullying, sexual harassment, and mental health," WorkSafe ACT said on Thursday.

The review of work health and safety prosecutions, released in full for the first time, was completed by Marie Boland and handed to the ACT's work health and safety commissioner, Jacqueline Agius, in June 2022.

Ms Agius said she looked forward to the ACT government's response to the recommendations. The government would need to pursue legal amendments before the prosecution model can change.

"It is time to make positive changes to how we conduct prosecutions for WHS breaches in the ACT. While we are starting to see sentencing that better reflects the significance of breaches, more should be done by me, by WorkSafe and by the ACT government," Ms Agius said.

The review made 12 recommendations, which covered improved efficiency requirements for the handling of workplace prosecutions, clearer guidelines for deciding how prosecutions are to be handled and legislative changes to allow the work health and safety commissioner to work more closely with external lawyers.

"I am persuaded by the view it is critical for the WHS Commissioner to become the publicly identifiable figurehead for WHS prosecution decisions in the ACT," Ms Boland's review said.

"The many layers of approvals and authorisations external to WorkSafe ACT which currently exist to manage WHS prosecutions and the provision of legal advice I suggest detract from the ACT Government's objective of creating an independent, transparent, and accountable WHS regulator."

Ms Boland found it was not clear to the community how and why work health and safety prosecution decisions are made in the territory, which is why the territory needed a publicly accessible prosecution policy for safety law breaches.

"I also find providing the WHS Commissioner with the authority to decide whether to prosecute for WHS law breaches and with the flexibility to choose where to seek prosecution advice is the final critical element required to deliver an independent, agile, exemplary WHS regulator," she wrote.

Ms Boland wrote there was a "common view" the current system which requires WorkSafe to refer briefs of evidence to the Director of Public Prosecutions did not work.

"Several legal practitioners with experience of working in the ACT's WHS jurisdiction suggested regulatory prosecutions are not a central priority for the DPP and an alternative model should be implemented," she wrote.

The review noted that between November 2019 and mid-2022, the Director of Public Prosecutions had refused to prosecute one matter referred to it by WorkSafe ACT due to the director's assessment "there were insufficient prospects of conviction".

"I consider the existence of an in-house prosecution team within WorkSafe ACT is the most effective model for ensuring the continued independence of the WHS commissioner as required by the WHS Act, an independence which will allow her to exercise all her regulatory functions efficiently, effectively, transparently and consistently," Ms Boland wrote.

But WorkSafe ACT said the cost of an in-house prosecution team would be prohibitive in the ACT.

"Having considered the options presented in the review, WorkSafe ACT instead supports a refined hybrid model which varies from the review's recommendation," the safety watchdog's response to the review said.

"The refined hybrid model adopts elements of other jurisdictional models and is underpinned by WorkSafe ACT's ability to independently seek external counsel and an external prosecutor."

WorkSafe ACT's preferred hybrid model would allow it to engage an external prosecutor, seek advice on prosecutions from external lawyers without first seeking the approval of the Solicitor-General and seek the recovery of legal costs.

The model would also "permit prosecutions to be aligned with strategic objectives of WorkSafe ACT and provide the opportunity to conduct test cases in emerging WHS risks".

A spokeswoman for Workplace Safety Minister Mick Gentleman said the government would consider the recommendations and respond in due course.

"Any regulatory reforms would require extensive consultation with agencies across government. This includes the independent work safety regulator and the tripartite Work Health and Safety Council, which is established under statute to advise on matters such as the effectiveness of the WHS regulations and the performance of the WHS commissioner," the spokeswoman said.

The spokeswoman said the government understood WorkSafe ACT sought government legal advice on the issue of an in-house prosecution team.

Ms Agius released the review's recommendations in July 2022, marking the 10^th anniversary of the worksite death of Ben Catanzariti, 21, who was killed when a faulty concrete pump boom collapsed on him at a construction site on the Kingston Foreshore in 2012.

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Kay Catanzariti, Ben Catanzariti's mother, said she had put her trust in regulators over the last 10 years had been paid lip service.

"They failed me, they failed all Australian workers. All I wanted was a guilty. Someone took a shortcut and killed our son and brother. And I hope no other family will have to endure as much pain as we have done," Mrs Catanzariti said at a memorial service marking a decade since her son's death.

The Director of Public Prosecutions dropped charges arising from Ben Catanzariti's death against an engineer and multinational concreting firm in 2016, after two expert reports cast doubt on the prosecution's case.

Shane Drumgold SC, who was appointed Director of Public Prosecutions in 2019, told The Canberra Times in a statement last year the review completely disregarded "well-established and fundamentally important principles including the independence of prosecutorial decisions from government interests, investigator bias and interest group pressure".

"The recommendations completely disregard the prosecutor's primary role as a minister of justice, going so far as to set performance measures in securing unrealistic, and comparatively unhealthy conviction rates," he said.

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