Summary

  • In prosecutions under the Queensland Work Health and Safety (WHS) laws, the Industrial Magistrate hearing the matter has the discretion to not record a conviction. Often, the object of securing a non-recorded conviction is to protect the Defendant’s brand. Importantly, a non-recorded conviction does not need to be disclosed in certain situations (for example in tenders, or in foreign visa applications).
  • Until now the Queensland WHS regulator has published the identity of parties who are convicted, whether a conviction is recorded or not.
  • Recently the Supreme Court in Queensland found that the regulator’s publication of a party’s details on its website where no conviction was recorded, was unlawful.
  • The court’s discretion whether to record convictions when passing sentence will now be considered in greater detail during WHS prosecutions.
  • Parties whose identifying details appear on the Queensland Workplace Health and Safety Prosecution List webpage can require the regulator to remove their details where no conviction was recorded. That would avoid Google type searches identifying them in relation to the conviction.

DHG v State of Queensland (Represented by the Department of Justice and Attorney – General) [2013] QSC 89

In this case, the Applicant had pleaded guilty to an offence under Queensland workplace health and safety legislation. The Industrial Magistrate ordered that no conviction be recorded. She went further and made complimentary remarks about the character of the Applicant. The Respondent (Workplace Health and Safety Queensland) published on its website details of the Applicant’s plea and sentence.

Section 12(3)(b) of the Penalties and Sentences Act 1992 (Qld) (the Act) applies to a conviction where the court orders ‘no conviction be recorded’. It provides (as relevant) that the conviction must not be entered in any records except the records of the court and the offender’s criminal history, except that it may be entered in a record kept by a department or a prosecuting authority if it is necessary for the legitimate performance of the functions of the department or prosecuting authority.

Herbert Smith Freehills acted for the Applicant arguing that the Prosecution List website publication amounted to a permanent record and was contrary to the Act. Conversely, Workplace Health and Safety Queensland argued that the publication was intended to be an information sharing process to raise awareness of work health and safety laws which was temporary in nature being intended to appear for only five years.

The Supreme Court held that the publication was a breach of s.12(3)(b) of the Act and was not necessary for the legitimate functions of the regulator. The court stated “Identification of a particular offender who has the benefit of an order that no conviction be recorded adds nothing, unless it is intended that by naming the offender, fellow employees or commercial organisations may have regard to the circumstances of the conviction in determining whether to work with the offender, or to enter into contractual relationships with the offender. Such a purpose is contrary to the rationale for the discretionary power in s.12 of the Act”. The court also held that the Work Health and Safety Act 2011 (Qld) did not contain an implied intention that would override this effect.1

There are many individuals and corporations, convicted in Queensland of a work health and safety offence with an order that ‘no conviction be recorded’. Each of these parties can now require that the regulator remove their identifying details from any publication.

An important consequence of this decision, is that the discretion of a trial court not to record a conviction will be of greater significance in any prosecutions going forward. This matter, which has until now been given only cursory attention at sentencing hearings, will be contentiously argued where the regulator sees a publication as desirable.