The how and why of WHS arrests

As lawyers, we often have difficult conversations with clients, mulling over the scenarios that no one wants to find themselves in.

While initially unpleasant, it is worth understanding the risk undertaken and considering protective measures to mitigate potential damage. An example of this can be seen in the criminal prosecution in the work, health and safety (WHS) space, particularly whether a director or the principal of a business can be arrested for a breach of the Queensland Work Health and Safety Act 2011.

This insight digs into the process itself and examines what one might expect if they find themselves facing the unthinkable.

What counts as a criminal offence?

The Work Health and Safety Act 2011 (the Act) contains numerous duties and offences. The main duties are contained in Part 2 of the Act.¹

Where a person breaches one of these duties, the most likely offence will be one of three cascading offences in the Act.² These offences are described as category 1-3 offences, with category 1 offences being the most serious³ and category 3 the least serious.⁴ Evidence of reckless disregard for the safety of workers would place a business in category 1. A category 3 offence might be an unattended risk that has not resulted in injury.

Independent of the category 1-3 offences, there are industrial manslaughter offences.⁵ Industrial manslaughter only occurs where there is a death, but the death need not be immediate. A worker dying of silicosis might be an example of this.

Getting the defendant to court

Where a director or principal is prosecuted for an offence under the Act, the most common procedure is a documentary procedure where the WHS Prosecutor makes a complaint setting out the detail of the alleged offence and a Justice of the Peace issues a summons commanding the person to appear before a magistrate in the Magistrates Court.

This process is commonly described as prosecution by complaint and summons, and that is how the majority of charges under the Act progress. However, two offences stand out from the others:

1. The ‘category 1’ offence.⁶
2. The ‘industrial manslaughter – senior officer’ offence.⁷

Because these offences are expressly stated to be ‘crimes’, they fall within the most serious category of offences in Queensland and are ‘indictable offences’ within the meaning of the Criminal Code Act 1899.

The criminal process for indicatable offences

Indictable offences are generally prosecuted by bringing the defendant before a magistrate to determine whether the person charged should be committed to stand trial before a jury in either the District or Supreme Court. The method for bringing the person before the magistrate can be either by a document served on the defendant (for example, a summons) or by arresting the person and physically bringing them to the court.

To date, indicatable prosecutions for breaches of the Act have been brought before a magistrate by complaint and summons. If the director or principal does not appear before the magistrate, then the magistrate may issue a warrant for the director or principal’s arrest.⁸

It is understood that two warrants have been issued in relation to WHS prosecutions for defendants who failed to appear.

Regardless of whether the person charged appears in court in response to a summons or because they have been arrested, the person charged usually seeks bail.⁹ If bail is not granted, the person charged is at risk of remaining in incarceration until the prosecution is finalised (which could take many months). Bail is sought either when a person is arrested or when they first appear in court.

Although to date, the WHS Prosecutor has only used summonses as the starting point for getting a person to court, it is not the only way. The WHS Prosecutor could seek and obtain a warrant for the arrest of a director or principal charged with an indicatable offence. By way of comparison, it is common for charges brought by the Queensland Police Service to result in the person to be charged being arrested and taken to the watch-house, where they are then charged and may then apply for watch-house bail.

How do other offences differ from WHS offences?

Offences under the WHS Act are slightly different to other police offences in that only the WHS Prosecutor and the Queensland Director of Public Prosecutions (DPP) can bring a prosecution for a category 1 offence¹⁰ or a charge of industrial manslaughter.¹¹

In addition, whereas many people found offending will be arrested on the spot, WHS charges normally follow a lengthy investigation. The WHS Prosecutor may want the person arrested, but they have time to coordinate with court calendars and taking the person to the watch-house may not be necessary.

The most likely procedure that the WHS Prosecutor (or the DPP) would follow is to make application (on a sworn complaint) to a magistrate for the issue of a warrant.¹² The application would be made in the absence of the director or principal so they would be completely unaware that a warrant was being sought.

The magistrate would then have a discretion as to whether to issue a warrant and would most likely ask why the usual procedure of issuing a summons was not adequate. Although one might legitimately expect that the WHS Prosecutor (or the DPP) would go to great lengths to ensure that the material put before the magistrate was fair and balanced, the reality is that the magistrate will not hear the director or principal as to why a warrant for their arrest would be unjustified. Consequently, it is likely that the WHS Prosecutor would be able to persuade the magistrate that a warrant should be issued.

When considering what grounds would justify the issue of a warrant, it is worth noting (as mentioned above) that the WHS Prosecutor has already obtained warrants for the arrest of two people because they failed to show up at court. The grounds for a warrant as against a summons, will have to be stronger, but not that much stronger. A magistrate might issue a warrant in the first instance because:

• the Director or principal is a flight risk
• the WHS Prosecutor (or the DPP) was concerned that the director or principal might seek to improperly influence witnesses
• the WHS Prosecutor (or the DPP) was concerned that a breach of the WHS Act would continue if the director or principal was not arrested.

If the magistrate was satisfied that it was appropriate to do so, then the magistrate would issue a warrant commanding the police to arrest the person charged.

Arrested and charged

The process of being arrested and charged is unpleasant. There are usually three steps to an arrest:

1. The police officer states that you are under arrest (or similar words).
2. The police officer states the reason for the arrest.
3. You voluntarily surrender to the officer’s control or are physically subdued by the officer.

The use of handcuffs is optional for police officers, but the use of handcuffs is common. The reason handcuffs are used is because the person being arrested is an unknown risk (to themselves and to the police) and people in custody can quickly change from being compliant.

When handcuffs are applied, the police will handcuff the person with their hands behind their back.¹³ Police have a lot of discretion when arresting a person. There is nothing wrong in the arrested person asking if they can change into alternative clothes and if the officer would not use handcuffs. However, they have no right to either of these. The best approach is to be completely pleasant, polite and compliant – do not argue or express frustration.

The process of arresting a person is often highly visible. Not only will the arrest itself draw attention, but several police cars may be present, drawing even wider attention. Again, police have a lot of discretion when arresting a person and there is no obligation on them to be discrete.

On occasion, the media will have prior knowledge that a person is going to be arrested. In theory this should not happen; in practice it happens a lot.

There is nothing to stop the media filming or otherwise reporting on the arrest of a director or the principal of a business. There normally isn’t enough time for lawyers to try to stop media outlets publishing imagery. If your client is arrested and the media is in attendance, they should stand tall and smile.

It is possible to complain about the way the police have treated a person during an arrest, but it is often of limited value.

The watch-house

After arrest, the police will then take the director or principal as quickly as possible to either the watch-house or the court. In most cases, the police will take the director or principal to the watch-house, and they may be there for some time. For example, if the person is arrested after 5pm, then the person may not be able to be placed before the court until the following morning.

The director or principal will be searched, and their phone will be taken off them, leaving them no form of communication with the outside world. They will be placed in a cell and eventually they will be allowed to apply to the watch-house manager for watch-house bail.

A director or principal is at significant risk of saying something they later regret while in the watch-house. The process of being arrested and ultimately betting bail may take many hours and the watch-house cells are uncomfortable. The desire to do something to accelerate the process will be significant.

At the watch-house, the director or principal may not be told that they have a right to remain silent and may not be permitted a phone call. This is because those rights are contingent on the officers wanting to question the director or principal, and they will possibly not be interested in questioning the director or principal, because they are simply executing the warrant. The best strategy is the director or principal to settle in as best they can and patiently wait for the process to complete.

If the watch-house manager refuses bail, then an application must be made to a magistrate or the District Court for bail.¹⁴

Conditions when granting bail

In deciding whether to grant bail, be it the watch-house manager, magistrate or the District Court, bail may be conditional.

The types of conditions that might be imposed include:

1. to appear in court
2. not to commit an offence while on bail
3. not to endanger the safety or welfare of others while on bail
4. not to speak to others who might be witnesses
5. not to interfere with or obstruct the course of justice
6. to surrender a passport, and
7. to obtain a surety from another person who agrees to forfeit a sum of money or property if the director or principal doesn’t show up at court.

Where the WHS Prosecutor is concerned that the above conditions are needed and otherwise likely to be breached, this could be the driver in the WHS Prosecutor’s mind to seek a warrant in the first instance.

If bail is not granted and is not granted on any appeal, the director or the principal of the business remains in custody until there trial is finalised. This could result in a period of imprisonment, longer than what any sentence for the offence might be.

Should you be concerned?

Is the possibility of a director or the principal of a business being arrested in the first instance unlikely?

Given how frequently people are arrested by the police for far less serious offences and that the WHS Prosecutor is already obtaining warrants when people fail to show up at court, it clearly is not. The risk of the WHS Prosecutor seeking a warrant in the first instance should not come as a surprise.

There will be an incident (most likely a fatality), and mostly likely, some form of serious investigation before the WHS Prosecutor acts. An experienced lawyer will see the signs and will be able to forewarn and most likely avert the risk of arrest. The bottom line is that, following any serious incident, the powers and propensity for the WHS Prosecutor to take serious action should not be underestimated.

Alan Girle is a Special Counsel, employment, safety and migration, at Macpherson Kelley.

Footnotes
¹ Sections 19-29.
² Sections 31-33.
³ Section 31.
⁴ Section 33.
⁵ Sections 34A-D.
⁶ Section 31.
⁷ Section 34D.
⁸ Section 58 of the Justices Act 1886.
⁹ Bail Act 1980.
¹⁰ Section 31.
¹¹ Section 34D.
¹² Section 57 of the Justices Act 1886.
¹³ QPS Operational Procedures Manual.
¹⁴ Bail Act 1980.