(08) 9278 2575FIFO Worker Facing Criminal Charges? Here’s What You Need To Know
For ‘fly-in, fly-out’ workers in Western Australia, a criminal charge can create problems well beyond the courtroom.
Being charged with a criminal offence can have a major impact on schedules and travel plans, with a conviction having far-reaching effects on your professional and personal future.
This article explains the key issues for FIFO workers facing criminal charges in Western Australia, including common offences as well as the far-reaching impact of criminal charges and convictions.
Where Will Your Case Be Heard?
FIFO work is unusual because a person may live in one place, work in another and spend significant periods in remote regions. A worker may live in Melbourne, fly to the Pilbara, work near Newman, Tom Price, Port Hedland, Karratha, Onslow, Kalgoorlie or the Goldfields, then return home between swings.
This causes a major problem as the location of the allegations relating to the charge usually determines the court location which will hear it.
If the alleged offence occurred in Perth, the matter will usually start in a court in the metropolitan area. For matters which occur outside the metropolitan area, the prosecution will likely be determined in a court within the area where the alleged offence occurred. For example, if an offence is alleged to have occurred in South Hedland, the charge that is preferred by the police will likely be heard in the South Hedland Court.
Regional-based charges can be particularly logistically difficult for FIFOs. A person living in Perth or interstate but charged in the Pilbara may need advice about whether appearances can occur by video link, whether a lawyer can appear on their behalf without the requirement of the accused to attend court, or whether the matter can be moved.
Generally, if charged in Western Australia, the accused will be required to appear in a WA court. The matter can not be transferred to their home state simply because travel is inconvenient.
Can You Leave WA Until Your Case Is Heard?
Whether you can leave WA until your matter is heard in court depends on if you are granted bail and your bail conditions don’t in any way prohibit you from departing the state.
Section 5 of the Bail Act 1982 (WA) provides that an accused in custody awaiting an initial appearance is entitled, subject to certain provisions, to have bail considered as soon as practicable. If bail is refused, the accused will be remanded into custody (detained) until their next court date.
Bail conditions may be imposed to manage risks such as failure to appear, committing further offences, interfering with witnesses or endangering the safety or welfare of others. In some circumstances, this may mean that you remain in Western Australia.
Common Charges FIFO Workers May Face
FIFO workers can be charged with a variety of offences, but the following appear to be common, impacting workers.
Assault Offences
Assault charges could arise as a result of physical altercations at pubs and clubs, at mine site accommodation or any number of high-pressure environments.
Under section 313 of the Criminal Code Act Compilation Act 1913 (WA) (“Criminal Code”), it is an offence to unlawfully assault another person. To establish the offence, the prosecution must prove that the accused applied force to another person, or threatened to apply force, without lawful excuse or consent. This offence carries a maximum penalty of 18-months imprisonment and a fine of $18,000. If the offence is committed in circumstances of aggravation (such as where the assault occurs in a family or domestic relationship or is racially motivated ), the maximum penalty increases to 3 years imprisonment and a fine of $36,000.
Under section 317 of the Criminal Code, it is an offence to unlawfully assault another person and cause bodily harm. Bodily harm includes any injury which interferes with a person’s health or comfort and is more than merely transient or trifling, such as bruising, swelling, cuts, fractures or psychological injury. This offence carries a maximum penalty of 5 years imprisonment if prosecuted on indictment, or 7 years imprisonment in circumstances of aggravation.
Public Order Offences
Acting in a disorderly manner in public can also result in an offence.
Under section 74A of the Criminal Code, it is an offence to behave in a disorderly manner in a public place, police station or lock-up or within the sight or hearing of a person in a public place. Disorderly behaviours can include using insulting, offensive or threatening language or behaving in an insulting, offensive or threatening manner. This offence carries a maximum penalty of a fine of $6,000.
These matters are often treated as minor compared with violent offences, but they can still appear on a criminal record if a conviction is recorded.
Drug Offences
Drug charges are particularly serious for FIFO workers because mining sites usually have strict drug and alcohol policies.
Under section 6(1) of the Misuse of Drugs Act 1981 (WA), it is an offence to possess, manufacture, sell or supply a prohibited drug with intent to sell or supply. This offence carries a maximum penalty of life imprisonment where the offence involves a traffickable quantity of methamphetamine, and a maximum penalty of a fine of $100,000 or 25 years imprisonment, or both, for other prohibited drugs, depending on the circumstances and quantities involved. More serious penalties may also apply where the offence involves supply to a child.
A simple offence is also created under section 6(2) of the Act where a person possesses a prohibited drug without an intention to sell or supply it. To establish the offence, the prosecution must generally prove that the accused knowingly possessed a prohibited drug. This offence carries a maximum penalty of a fine of $2,000 or 2 years imprisonment or both.
Under section 7(1) of the Act, it is also a simple offence to possess or cultivate a prohibited plant with the intent to sell or supply it or a drug derived from it, or to sell or supply such a plant. This offence carries a maximum penalty of a fine of $100,000, or 25-years imprisonment or both.
Drink Driving and Drug Driving Offences
Traffic charges can also be a major issue for FIFO workers, particularly more serious offences related to driving whilst intoxicated.
Under section 63 of the Road Traffic Act 1974 (WA), it is an offence to drive or attempt to drive a motor vehicle while under the influence of alcohol, drugs or both to such an extent as to be incapable of having proper control of the vehicle. This offence carries significant penalties including fines, mandatory licence disqualification and imprisonment, particularly for repeat offenders.
Under section 64 of the Act, it is an offence to drive or attempt to drive a motor vehicle with a blood alcohol content of 0.08 or higher. Penalties vary depending on the blood alcohol reading and prior offending history, but may include substantial fines, mandatory licence disqualification and imprisonment
Similar offences apply to driving whilst impaired by illicit drugs, including:
- Under section 64AB of the Act, it is an offence to drive or attempt to drive a motor vehicle while impaired by drugs.
- Under section 64AC of the Act, it is an offence to drive or attempt to drive a motor vehicle while a prescribed illicit drug is present in the person’s oral fluid or blood.
- Under section 64B of the Act, it is an offence to drive or attempt to drive a motor vehicle while both a prescribed illicit drug is present in the person’s oral fluid or blood and the person has a blood alcohol content of 0.05 or above.
The threat of license disqualification as a result of these offences can be particularly troubling for FIFO workers, given that a valid manual license is a common requirement to work on mine sites.
Learn more about drink driving and drug driving offences here.
What Happens If You’re Convicted?
Not every criminal conviction leads to a term of imprisonment, with many first-time offences resulting in fines, community-based orders or other non-custodial outcomes.
However, for FIFO workers the most damaging effect of receiving a conviction is a criminal record.
Many mining jobs require a clear National Police Certificate or nationally coordinated criminal history check in order to work. WA Government guidance states that a National Police Certificate contains disclosable court outcomes and pending charges from all Australian police jurisdictions.
That means the problem is not limited to convictions. Pending charges may also be visible on a police certificate, depending on the type of check and disclosure rules.
Different employers assess criminal history differently. There is no single rule that every mining job is lost because of a charge. Nevertheless, a recorded conviction, particularly for a serious offence, is likely to pose significant barriers to continued employment in the mining sector.
Should You Tell Your Employer?
Whether you should tell your employer that you are facing a criminal charge will depend on your employment contract.
Some contracts require workers to disclose criminal charges immediately. Others require disclosure only if the charge affects capacity to perform duties, site safety, licensing, travel or security clearance. Some policies specifically require disclosure of licence suspension, drug and alcohol related incidents or violent offence charges.
Providing false information during onboarding, police checks or site access processes may potentially become more damaging than the original charge. Employers and labour hire providers may also verify police clearance documents and site access material. Providing false or misleading information during recruitment, onboarding or site access can become more damaging than the original charge, particularly in a safety-critical industry.
A careful approach is needed. A worker should obtain legal advice before making admissions to an employer, but should also avoid breaching contractual obligations or site policies.
Key Lesson: Get Legal Advice Early
Early legal advice can help protect both the criminal case and FIFO worker’s ability to keep earning.
If you are facing a criminal matter in Western Australia, you need to speak to an experienced criminal lawyer. Andrew Williams is a highly skilled Criminal Lawyer and Barrister who can provide expert advice, protect your rights, and help achieve the best possible outcome for your case.
Call Now: (08) 9278 2575
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
