On 27 October 2022, a tour company was sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to comply with its primary health and safety duty, thereby exposing other persons to the risk of death or serious injury.

The defendant operated study tours for foreign, predominantly Japanese, travel agents and schools in Australia. In about May 2018, a Japanese high school commenced preparations for a group of students to travel to Australia from Japan in March 2019, for a study tour. The group for this trip consisted of 15 students and two teachers.

As a part of their visit to Australia, the defendant booked a trip for the group to K’gari (Fraser Island) from 28 to 30 March 2019. This booking included, amongst other things, return passenger ferry transfers, two nights’ accommodation at the Kingfisher Bay Resort, and a full day 4WD tour, known as the “Beauty Spots” tour.

On 29 March 2019, whilst on a guided tour of K’gari (Fraser Island), two of the students drowned in Lake McKenzie. The bodies of the two boys were located in the lake by police divers the following morning.

The defendant failed in its duty to ensure, so far as was reasonably practicable, that the health and safety of other persons was not put at risk from the work carried out as part of the conduct of the business or undertaking, by failing to provide information or instruction that is necessary to protect all persons from risks to their health and safety arising from work carried out as a part of the conduct of the business.

The reasonably practicable control measure that the defendant could have implemented was advising participants that, whilst on their study tours, they were prohibited from engaging in the activity of swimming. The failure to comply with its duty exposed individuals, including the students, to a risk of death or serious injury.

In sentencing the defendant, A/Magistrate Costanzo acknowledged that the main objective of the Act is to provide for a nationally consistent framework to secure and protect the health, safety, and welfare of not only workers, but also of other persons such as clients and customers.

His Honour remarked that the defendant should and could have envisaged the danger of drowning by swimming in the lake and that it did nothing to search for, detect and eliminate, so far as was reasonably practicable, risks to safety by swimming in the lake.

The risk and potential consequence of the risk here was that children in the care of the defendant could drown if allowed to swim in the lake. His Honour considered that the probability of the risk was very high, that there were simple steps available to identify and to eliminate the risk, and that the children could simply be told swimming was not permitted. His Honour remarked that it was the simplest step imaginable, devoid of all the complexities, expenses, and other issues associated with the risk assessments in comparable cases, where the work activities were often much more complex. His Honour considered it a commonsense step and one that would come at little or no cost to the defendant.

On a consideration of all the comparative sentences His Honour concluded that the appropriate range for a fine in this matter is from $200,000 to $450,000.

His Honour remarked that this matter did not call for a personally deterrent sentence as the defendant, through its director, had demonstrated adequate and appropriate remorse and took immediate remedial steps to avoid this type of offending in the future. However, His Honour considered that general deterrence is a significant sentencing factor when safety duties and obligations are breached.

Having regard to all matters, as well as the comparable decisions referred to by the parties, A/Magistrate Costanzo convicted and fined the defendant $250,000 and exercised his discretion not to record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au