Council fails in bid to stall drowning prosecution

Rex Martinich | June 7, 2023

A workplace health and safety prosecution over two tourists drowning will continue despite a Queensland council’s bid to indefinitely stall or halt the proceedings.

In a decision published on Wednesday, Proserpine Magistrates Court ruled that Queensland’s Office of Work Health and Safety Prosecutor applied the correct legislation to accuse Whitsunday Regional Council of contributing to the drownings.

Chinese national Yuanwei Zhang and his five-year-old son, Chenxi, died at the Airlie Beach lagoon north of Mackay on the afternoon of October 28, 2018.

Mr Zhang’s wife, Jie Tan, reached an out-of-court settlement in April with Whitsunday Regional Council, which operated the lagoon as a public swimming pool.

The Work Health and Safety Prosecutor brought a criminal case against the council, alleging that it did not ensure there were enough lifeguards at the lagoon to provide adequate supervision.

The prosecutor also alleged that the council could have “minimised or eliminated” the risks to swimmers by examining the performance of the lifeguard and maintenance services contractors and by completing a risk assessment.

The council last month applied for a permanent stay on the case, arguing its primary duty of care around the lagoon was governed by the Safety in Recreational Water Activities Act, which would override any attempt to prosecute under the Work Health and Safety Act.

The prosecutor argued that the council’s interpretation of the Safety in Recreational Water Activities Act was inconsistent with parliament’s intentions in passing the bill to specifically regulate recreational diving and snorkelling businesses rather than a public pool.

Following a hearing in March, Magistrate Michelle Howard ruled that the council’s lagoon did not fall into the same category as a tourist dive tour or a retail business selling fins and snorkelling masks and the case could proceed.

“The Safety in Recreational Water Activities Act does not arise and does not apply to the council … it follows that the council’s application for a permanent stay or strike out of the complaint should be dismissed,” Ms Howard stated.