55B. Crown may be prosecuted
The Crown in any capacity may, in accordance with this Division, be prosecuted for an offence against this Act.
55C. Prosecution against body corporate
(1) Where the act or omission constituting the offence is alleged against a body corporate that is an agent of the Crown, the prosecution proceedings are to be taken against the body corporate.
(2) Subsection (1) includes a case where ¾
(a) a body corporate is the successor in law, as defined in section 55F(1), of an agency or department; or
(b) a body corporate is determined under section 55F(3).
55D. Prosecution in other cases
(1) Where ¾
(a) the act or omission constituting the offence is alleged against an agency or department that is an agent of the Crown (the }responsible agency~); and
(b) section 55C does not apply,
the prosecution proceedings are to be taken against the Crown.
(2) For the purposes of subsection (1) the WA Police is to be treated as an agency of the Crown.
(3) Proceedings referred to in subsection (1) may be brought against the Crown under the title }State of Western Australia~.
55E. Provisions applicable to responsible agency
(1) In this section ¾
}chief executive~ means the person who is for the time being responsible for the day to day administration of a responsible agency;
}prosecution proceedings~ means proceedings referred to in section 55D(1).
(2) For the purposes of prosecution proceedings ¾
(a) the responsible agency ¾
(i) is to be specified in the charge for the offence;
(ii) is entitled to act for the Crown in the proceedings; and
(iii) subject to any rules of court, has the procedural rights and obligations of the Crown as the defendant in the proceedings;
and
(b) the complainant may during the proceedings, with the leave of the court, substitute another responsible agency for the agency in the proceedings.
(3) In prosecution proceedings a person authorised by the chief executive of the responsible agency concerned may act on behalf of the agency, and it is not necessary for proof to be given of the authority of the person to do so.
(4) It is sufficient service of a document required to be served on a responsible agency for the purposes of prosecution proceedings if the document ¾
(a) is delivered to a person who is or appears to be the chief executive of the responsible agency, or a person acting as such, at a place of business of the responsible agency; or
(b) is sent by pre-paid letter addressed and posted to the responsible agency at its principal place of business in the State.
55F. Proceedings where agency has ceased to exist
(1) In this section ¾
}successor in law~, in relation to an agency or department, means ¾
(a) the sole successor; or
(b) if there is more than one successor, the one that has the relevant functions formerly vested in the agency or department.
(2) If an agency or department referred to in section 55D(1)(a) ¾
(a) has ceased to exist; but
(b) has a successor in law to which section 55C(2) does not apply,
the successor in law is the responsible agency for the purposes of section 55D(1).
(3) If an agency or department referred to in section 55D(1)(a) ¾
(a) has ceased to exist; and
(b) either ¾
(i) it has no apparent successor in law; or
(ii) there is doubt as to which agency or department has the relevant functions,
the responsible agency for the purposes of that section is such agency of the Crown as the Minister determines.
55G. Penalties in proceedings against the Crown
(1) In subsection (3)(b) ¾
}successor in law~, in relation to an agency or department, means ¾
(a) the successor in law as defined in section 55F(1); or
(b) the agency of the Crown determined under section 55F(3).
(2) The penalty that may be imposed on the Crown if it is convicted of an offence against this Act in proceedings referred to in section 55D(1) is the penalty applicable to a body corporate.
(3) In proceedings referred to in section 55D(1), a higher penalty may be imposed for an offence involving a responsible agency on the ground that it is a subsequent offence, only if the acts or omissions constituting the previous offence or offences were those of ¾
(a) the same responsible agency; or
(b) a responsible agency of which it is the successor in law.
(4) A penalty imposed in proceedings referred to in section 55D(1) cannot be enforced under the Fines, Penalties and Infringement Notices Enforcement Act 1994.
55H. Terms used in this Division
In this Division ¾
}convicted~ means found guilty of an offence, whether after a plea of guilty or otherwise;
}court~ means a safety and health magistrate exercising jurisdiction under section 51C(1)(b);
}relevant offence~ means an offence against ¾
(a) section 24(4), 30(7), 35(4), 38(2), 39(3), 45(5), 47(1), 48(4), (5) or (6) or 49(5) or (6); or
(b) the regulations.
55I. Court may allow offender to make election
(1) Where ¾
(a) a person (the }offender~) is convicted of one or more relevant offences; and
(b) the court has fined the offender,
the court may, subject to subsection (2), make an order allowing the offender to elect either ¾
(c) to pay the fine or fines; or
(d) as an alternative, to enter into an undertaking with the Commissioner under section 55M not later than a day specified by the court.
(2) A court is not to make an order under this section unless the court is satisfied that ¾
(a) the breach of the relevant offence did not result in physical harm to any person;
(b) the offender wishes an order to be made and the complainant does not oppose that being done;
(c) the offender and the Commissioner are likely to reach agreement on the provisions of the proposed undertaking within the time that the court proposes to specify under subsection (1)(d); and
(d) the cost to the offender of complying with the proposed undertaking will be substantially equivalent to the amount of the fine or fines imposed.
(3) After the court has fined the offender, the court may adjourn the proceedings to allow ¾
(a) the offender time to consider whether the offender wishes an order to be made; and
(b) the complainant time to consider whether to oppose that being done,
as mentioned in subsection (2)(b).
(4) Nothing in this Division limits the powers of a court under the Sentencing Act 1995.
55J. Making of election
(1) An election is made, pursuant to an order under section 55I(1), by the offender ¾
(a) lodging an election in writing with the clerk of the court in which the order was made; and
(b) serving a copy of the election on the Commissioner,
not later than 28 days after the day on which the order was made.
(2) If ¾
(a) an order is made under section 55I(1); but
(b) the offender fails to make an election in accordance with subsection (1),
the offender is taken, at the expiry of the period mentioned in subsection (1), to have elected to pay the fine or fines.
55K. Failure to enter into undertaking
An election under section 55J to enter into an undertaking lapses if the undertaking is for any reason not entered into before the time allowed under section 55I(1)(d).
55L. Time for payment of fines
(1) The liability of the offender to pay the fine or fines in connection with which an order is made under section 55I(1) is suspended by the making of the order.
(2) If the offender elects to pay the fine or fines, for the purposes of section 32 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 the fine or fines are taken to have been imposed on the day on which the election is made.
(3) If the offender is taken by section 55J(2) to have elected to pay the fine or fines, for the purposes of the section referred to in subsection (2) the fine or fines are taken to have been imposed at the time mentioned in section 55J(2).
(4) If ¾
(a) the offender elects to enter into an undertaking; but
(b) the election lapses under section 55K,
for the purposes of the section referred to in subsection (2) the fine or fines are taken to have been imposed on the day specified under section 55I(1)(d).
55M. Nature and terms of undertaking
(1) An undertaking for the purposes of this Division is a document by which the offender gives undertakings to the Commissioner that the offender will ¾
(a) take the action specified in the undertaking;
(b) bear the costs and expenses of doing so; and
(c) complete all of the required action not later than a day specified in the document.
(2) The action required to be taken by the offender is to come within the provisions described in section 55N(2) or (3).
(3) The provisions of the undertaking are to be such as are agreed between the Commissioner and the offender.
(4) The Commissioner is to furnish a copy of an undertaking, and of any amendment made under section 55Q, to the court concerned.
55N. What may be included in undertaking
(1) In this section ¾
}specified~ means specified in the undertaking.
(2) An undertaking is to provide for the offender to do one or more of the following ¾
(a) to take specified steps for the improvement of occupational safety and health ¾
(i) at a specified workplace; or
(ii) in connection with the business or operations of the offender;
(b) to take specified steps to publicise details of ¾
(i) any specified offence;
(ii) its consequences;
(iii) the amount of the fine or fines imposed and the fact that the undertaking has been entered into under this Division; or
(iv) any other related matter;
(c) to remedy any consequence of a specified offence, so far as it is practicable to do so, but not in a way that is excluded by subsection (4);
(d) to carry out a specified project or activity for the improvement of occupational safety and health ¾
(i) in the community;
(ii) in a particular section of the community; or
(iii) in connection with a particular kind of activity in the State.
(3) The Commissioner may require that an undertaking contain any incidental or supplementary provision that the Commissioner considers necessary or expedient to achieve its purpose, including provision for ¾
(a) the reporting of matters; and
(b) providing proof of compliance,
to the Commissioner.
(4) An undertaking cannot provide for the offender to take any action ¾
(a) that the offender has a duty to take in order to comply with any provision of this Act; or
(b) for the taking of which an improvement notice or a prohibition notice could be issued.
55O. Effect of undertaking
The liability of the offender to pay the fine or fines in connection with which the undertaking is given ¾
(a) is suspended by the giving of the undertaking; and
(b) is cancelled by the full discharge of the offender's obligations under the undertaking.
55P. Failure to comply with undertaking
(1) An offender commits an offence if the offender fails to fully discharge the obligations under an undertaking before the day specified in the undertaking in accordance with section 55M(1)(c).
(2) A court that convicts an offender of an offence against subsection (1) must order that the fine or fines to which the undertaking relates be paid in addition to any penalty imposed for the offence against subsection (1).
(3) For the purposes of section 32 of the Fines, Penalties and Infringement Notices Enforcement Act 1994, the fine or fines to which an order under subsection (2) applies are taken to be imposed on the day on which that order is made.
55Q. Amendment of undertaking
An undertaking may be amended by an instrument in writing signed by the offender and the Commissioner.
55R. Undertaking may be published
The Commissioner may cause an undertaking to be published in any manner the Commissioner thinks fit including ¾
(a) by publication in a newspaper; or
(b) by posting a copy of the undertaking on an internet website maintained by the Commissioner.