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Work Health and Safety Prosecutor v Whitsunday Regional Council[2023] QMC 3

Work Health and Safety Prosecutor v Whitsunday Regional Council[2023] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Office of Work Health & Safety Prosecutor v Whitsunday Regional Council [2023] QMC 3

PARTIES:

Office of the Work Health & Safety Prosecutor

v

Whitsunday Regional Council

FILE NO/S:

MAG000014921420

DIVISION:

Magistrates Courts

PROCEEDING:

Application to stay or alternatively strike out Complaint

ORIGINATING COURT:

Proserpine Magistrates Court

DELIVERED ON:

19 May 2023

DELIVERED AT:

Proserpine

HEARING DATE:

23 March 2023

MAGISTRATE:

Magistrate Howard

ORDER:

  1. The application of the Whitsunday Regional Council for permanent stay, or alternatively strike out, of the Complaint and Summons issued against it on 27 October 2020 is dismissed.

CATCHWORDS:

APPLICATION TO PERMANENTLY STAY OR STRIKE OUT COMPLAINT – where particulars of complaint – whether s 16 of the Safety in Recreational Water Activities Act 2011 (Qld) applies – whether complaint alleging failure to comply with duty in s 19(2) of the Work Health & Safety Act 2011 should be permanently stayed or struck out

STATUTES – CONSTRUCTION – DETERMINATION OF CONSTRUCTION – where particulars of complaint – whether duty in s 16 of the Safety in Recreational Water Activities Act 2011 (Qld) applies – meaning of ‘recreational water activity’ – meaning of ‘provision of  recreational water activity’  

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Safety in Recreational Water Activities Act 2011 (Qld) ss 7, 8, 16

Work Health & Safety Act 2011 (Qld)  s 19(2), Schedule 1     s 12(b)

APPEARANCES: 

Mr Murdoch CJ KC instructed by Wotton Kearney solicitors for Whitsunday Regional Council

Ms Harburg SE, Counsel instructed by Office of Prosecutor for Work Health & Safety

  1. [1]
    Whitsunday Regional Council (the Council) owns, operates and maintains the Airlie Beach Lagoon (the Lagoon), which is made available for use by members of the public.
  1. [2]
    The Council has been issued a complaint and summons (the complaint) alleging that it committed an offence against the Work Health & Safety Act 2011 (WHS Act) for an alleged failure to comply with its obligations pursuant to s 19(2) of the WHS Act, contrary to s 32 of the WHS Act. In essence, it is alleged the Council failed to, as far as was reasonably practicable, eliminate or minimise risk of death or serious injury, posed by the provision of the Lagoon, in contravention of its duty under s 19(2) of the WHS Act, resulting in the death of a father and son by drowning at the Lagoon.
  1. [3]
    The Council applies for the complaint to be permanently stayed or struck out on the basis that there is no prospect of a conviction because the duty in s 19(2) of the WHS Act has no application to the facts alleged against it.
  1. [4]
    The particularised allegations (the particulars) against the Council were recently refined by the Office of Work Health & Safety Prosecutor (the WHS Prosecutor).[1] Relevantly, the particulars allege that at the relevant dates, in summary, as follows:
  1. (a)
    The Council owned the Lagoon;
  1. (b)
    The Council was responsible for the operation of the Lagoon and its maintenance;
  1. (c)
    The Council was engaged in the business of providing the Lagoon, an aquatic facility, for persons to use;
  1. (d)
    There was a risk posed in providing the Lagoon of risk of death or serious injury from drowning;
  1. (e)
    The risk could have been eliminated or minimised so far as reasonably practicable by ensuring certain controls were implemented – namely, minimum number of lifeguards on duty at any time the Lagoon was open; inspection, analyses and examination of the supervision services provided at the Lagoon by the contractor engaged to provide lifeguarding and maintenance services; and completing a risk assessment (giving consideration among other things to the swimming capabilities of people you use the Lagoon);
  1. (f)
    The Council failed to implement the controls;
  1. (g)
    As a result, the risk materialised by the drowning of two persons at the Lagoon.
  1. [5]
    For the purposes of deciding the Council’s application, I proceed on the basis that the Prosecutor would establish all of the facts alleged if the complaint against it was to proceed.
  1. [6]
    In deciding the application for a permanent stay or striking out of the complaint, the primary issue for determination is whether s 16 of the Safety in Recreational Water Activities Act 2011 (SRWA Act) applies. If it does, then the WHS Prosecutor accepts that s 19(2) of the WHS Act has no application and the prosecution against the Council pursuant to s 19(2) must fail.

The legislative scheme provided for by the WHS Act and the SRWA Act 

  1. [7]
    The main object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces through means provided for therein.[2]
  1. [8]
    Section 19 of the WHS Act entitled ‘Primary duty of care’, provides broadly that a person conducting a business or undertaking must ensure, ‘so far as reasonably practicable’, health and safety of its workers at the business or undertaking;[3] and, relevantly, that a person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of other persons is not placed at risk from work carried out in conducting the business or undertaking.[4] A non-exhaustive list of those matters required in meeting the duties provided for are specified.[5] These include, among others, provision and maintenance of safe plant and structures and safe systems of work.
  1. [9]
    Section 12 provides that Schedule 1 prescribes for the application of the WHS Act. Relevantly, pursuant to s 12(b), Schedule 1 applies in respect of matters dealt with in other legislation. In Schedule 1 Part 2, s 6 provides that if s 16 of the SRWA Act applies, then the WHS Act does not apply ‘in the circumstances to the extent that’ s 16 has application.
  1. [10]
    Part 2 Division 5 of the WHS Act provides for ‘Offences and penalties’. Section 32 provides in effect that a person commits a category 2 offence if, the person has a health and safety duty; fails to comply with it; and their failure exposes ‘an individual to a risk of death or serious injury or illness.’ Maximum penalties are prescribed.
  1. [11]
    I turn now to the SRWA Act. The main object of the SRWA Act is ensuring the health and safety of persons to whom recreational water activities are provided by a person conducting a business or undertaking.[6] The SRWA Act operates ‘in conjunction’ with the WHS Act, adopts provisions from it, and makes provision for the relationship between the two Acts.[7]
  1. [12]
    Section 16(1) of the SRWA Act provides that a person conducting a business or undertaking that provides recreational water activities must ensure, so far as is reasonably practicable, that the health and safety of persons for whom the activities are provided are not put at risk by the provision of the recreational water activity. Without limiting s 16(1), s 16(2) provides that the person has the prescribed duty in respect of particular prescribed matters including ‘provision of maintenance of safe plant and structures;’[8] and that ‘persons and conditions at the place where the recreational water activities are provided are monitored for the purpose of preventing illness or injury of persons for whom the activities are provided.’[9]
  1. [13]
    Section 6 provides generally that the dictionary in Schedule 2 defines particular words in the SRWA Act. However, ss 7 and 8 respectively provide the meanings of ‘recreational water activity’ and ‘provision of a recreational water activity.’ The definitions of those key phrases are in the following terms:
  1. 7.
    Meaning of recreational water activity

A recreational water activity is an activity carried out—

  1. (a)
    for the purposes of recreation; and
  1. (b)
    on, in or under waters.

Examples of water activity—

diving, snorkelling

Note—

This Act deals with recreational water activities only in the context of them being provided by a person in the conduct of a business or undertaking and under the management or control of the person.

  1. 8.
    Meaning of provision of recreational water activity
  1. (1)
    A person conducting a business or undertaking provides a recreational water activity if the recreational water activity is provided under the management or control of the person.

Example—

a person conducting a commercial diving business that provides recreational diving trips to the Great Barrier Reef with all necessary training, equipment and supervision

  1. (2)
    The provision of recreational water activity includes any of the following done as part of the management or control of the provided activity—
  1. (a)
    the provision of access to a place;
  1. (b)
    supervision;
  1. (c)
    supply of anything;
  1. (d)
    advice, demonstrations or training.

Example—

A person conducts a retail business selling fins and snorkelling masks. The person for that reason alone is not a person conducting a business or undertaking providing recreational water activities.

  1. (2)
    A person conducting a business or undertaking providing recreational water activities does not provide them to a person only because the person is a worker carrying out work in the business or undertaking.

Note—

The Work Health and Safety Act 2011 provides for the work health and safety of workers mentioned in subsection (3).

  1. [14]
    ‘Waters’ is defined broadly in Schedule 2, to mean ‘waters of any description at any place, whether natural or constructed.’ In the provided ‘examples of waters,’ ‘pool’ is specifically included.
  1. [15]
    Section 22 of the SRWA Act provides that a person commits a category 2 offence if, the person has a health and safety duty for recreational water activities; fails to comply with that duty; and the failure exposes an individual to risk of death or serious injury or illness. Maximum penalties are prescribed.

Submissions of the parties

  1. [16]
    The parties are unable to locate any decided cases which assist with the construction issues that arise here in respect of the SRWA Act.
  1. [17]
    The Council submits that swimming is an activity carried out on, in or under waters. Waters as broadly defined includes a pool, and the Lagoon is therefore within the definition of waters. Further, swimming is generally carried out for recreational purposes. The Council submits that it provided the recreational water activity of swimming to be undertaken by owning, operating and maintaining a place for swimming to be done, namely the Lagoon, by providing members of the public with access to the Lagoon.
  1. [18]
    In particular, it argues the activity of swimming was provided under the management or control of the Council because it owned and operated the Lagoon, permitting swimming to be undertaken there during the specified hours of operation. It contends that in managing and controlling of swimming at the Lagoon, it provided access to the Lagoon. Further, it submits that it is alleged against it in the particulars that the Council had responsibility for supervising swimming at the Lagoon. Therefore, it submits, on the facts alleged against it, the Council was a person conducting a business or undertaking that provided recreational water activities.
  1. [19]
    That being so, it submits that s 16(1) of the SRWA Act applied and imposed a duty on the Council to ensure, as far as reasonably practicable, that the health and safety of persons for whom the activities were provided (namely persons who swam at the Lagoon) were not placed at risk by provision of the recreational water activity.
  1. [20]
    As a consequence, the Council argues that s 19(2) of the WHS Act does not apply, because s 6(2) of Schedule 1 applied to oust the application of s 19(2) in respect of persons for whom the recreational water activity was provided (that is, members of the public swimming at the Lagoon).
  1. [21]
    The WHS Prosecutor submits that providing access to the Lagoon does not constitute a ‘recreational water activity’ and that the relevant conduct of the applicant was not the ‘provision of recreational water activity’. Therefore, it argues, the SRWA Act does not apply. Rather, it argues, s 19(2) of the WHS Act operates.
  1. [22]
    It submits that swimming in the Lagoon is not within the definition of ‘recreational water activity’ as provided for in s 7 of the SRWA Act, because it is not an ‘activity carried out’ within the definition. It relies upon the examples given of diving and snorkelling, in arguing that these are organised activities of a very different character (that is, diving and snorkelling) from those alleged here. It submits that here, no such activity is carried out by the Council.
  1. [23]
    Further, the WHS Prosecutor contends, the Council owns, controls and provides the Lagoon: that members of the public can and do swim in the Lagoon is not enough for that activity to constitute a recreational water activity as defined. To fall within the definition, it submits that some activity must be provided by the person in conducting the business or undertaking, and that it is provided under the management or control of the person conducting the business. It says that here, there is no such activity and that ownership and control of the Lagoon is not captured.
  1. [24]
    Further, it says that the distinction becomes clear having regard to what it means to ‘provide’ a recreational water activity as set out in s 8 of the SRWA Act. It submits that to be captured, pursuant to s 8(2), the provision of access to a place must be done as part of the management or control ‘of the provided activity’. That is, it must link back to the activity provided by the person. It submits that there is not the requisite link. It submits that the provision by Council of lifeguarding is done ‘for safety’ rather than something done ‘as part of the management or control’ of the provided recreational water activity.
  1. [25]
    The WHS Prosecutor relies upon the Example in s 8(2) that a retail business selling fins and snorkelling being specifically excluded. It submits this demonstrates that the activity must relate back to the provided recreational water activity: merely supplying fins and snorkelling masks alone as a retailer does not bring a person within the definition of providing a recreational water activity because it is not done as part of the management or control of the provided activity. Similarly here, it submits, providing access to the Lagoon, where not done as part of the management and control of a provided activity, is not sufficient to amount to provision of a recreational water activity.
  1. [26]
    It argues that allowing people to undertake self-guided swimming at the Lagoon is not an activity provided under the management or control of the Council for s 8. Referring to the Example, given in s 8(1), it contends that this is of a different character to ‘a person conducting a commercial diving business providing recreational diving trips to the Great Barrier Reef with all the necessary training, equipment and supervision.’
  1. [27]
    Further, it submits that the broad construction of the SWRA Act the Council contends for is inconsistent with the examples provided in ss 7 and 8, with the broader statutory scheme, and Parliament’s intention. While acknowledging that statutory construction requires consideration of the purpose of the legislation and the relevant provisions in context, the WHS Prosecutor relies on the Explanatory Notes (ENs) to the SRWA Bill 2011, referring to the specific regulation of recreational diving and snorkelling, other than through the WHS Act. The WHS prosecutor submits that s 16(2) of the SRWA Act does not apply.
  1. [28]
    In response, the Council points out, the ENs refer to the definition of recreational water activity as being broadly drafted ‘in the event that Government wishes to regulate other similar activities.’

When is a ‘recreational water activity’ ‘provided’ by a business for the purposes of the SRWA Act?

  1. [29]
    The words of an Act are to be interpreted in context, having regard to the purpose of the legislation, with the objective of giving them the meaning intended by the Legislature.[10]
  1. [30]
    The main object of the SRWA Act is to ensure the health and safety of persons to whom recreational water activities are provided by a person conducting a business or undertaking.
  1. [31]
    The SRWA Act defines waters broadly to include natural and created waters, including, relevantly, a pool.
  1. [32]
    In effect, s 7 provides that a ‘recreational water activity’ is, an ‘activity’ that is carried out for the purposes of recreation, and that it is carried out on, in or under waters. The Note in s 7[11] is to the effect that the Act deals only with recreational water activities that are ‘provided’ ‘by a person in the conduct of a business or undertaking and under the management or control of the person.’ Having regard to the Note, in my view, whether or not an activity is a recreational water activity is to be determined not only having regard to the definition in s 7. It must be determined in light of whether the person in the conduct of their business or undertaking ‘provides’ a recreational water activity under their management and control.
  1. [33]
    In effect, s 8(1) provides that a person conducting a business or undertaking ‘provides’ a ‘recreational water activity’ if the ‘recreational water activity’ is ‘provided under the management or control of the person.’ It includes an Example,[12] that is, ‘a person conducting a commercial diving business that provides recreational diving trips to the Great Barrier Reef with all necessary training, equipment and supervision’.
  1. [34]
    Further, pursuant to s 8(2), the provision of a recreational water activity includes specified matters or conduct done ‘as part of the management or control of the provided activity.’ Those things include provision of access to a place; supervision; and supply of anything. Section 8(2) also includes an Example: a person conducting a retail business which merely sells fins and snorkels does not provide a recreational water activity.
  1. [35]
    With respect to the Example in s 8(2), merely conducting a business or undertaking that sells snorkels and fins of itself is not done in managing or controlling a recreational water activity, or as part of the managing or controlling a recreational water activity. Of course, selling fins and snorkels of itself is not providing an activity carried out for the purposes of recreation, and nor is doing so carried out on, in or under waters. Therefore, it alone could not, in any event, fall within the definitions of either recreational water activity or provision of a recreational water activity.
  1. [36]
    However, having regard to s 8(2), it appears that a person conducting a business providing diving tours to the Great Barrier Reef, which recommends use of particular snorkels and fins which are either for sale or hire for the diving tours from the person conducting the business, in selling or hiring the equipment to those undertaking its tours may sell or hire the equipment ‘as part of’ its management and control of the diving tours. That is, accepting that a person operating the diving tours is, (having regard to the Example given in s 8(1)), providing a recreational water activity, then in appropriate circumstances, the sale or hire of relevant equipment may be encompassed within the meaning of providing the recreational water activity when done ‘as part of’ its management or control of the provided recreational water activity, namely, diving tours at the Great Barrier Reef.
  1. [37]
    Thereby, conduct or acts done or things supplied, in the course of conducting the business of providing a recreational water activity, which would otherwise not fall within the definition in s 8(1) of providing a recreational water activity, are included in the definition. That is, s 8(2) extends the definition in s 8(1).
  1. [38]
    The words, ‘activity’ in s 7 and ‘provides’, ‘under the management or control of the’ person in s 8(1) and ‘provision’ and ‘as part of the management or control of the provided activity’ in s 8(2) are not defined terms. They are not terms of art. In the ordinary course, they should be given their usual meaning.
  1. [39]
    Pursuant to s 7, the definition of ‘recreational water activity’ first requires there be an ‘activity.’ In context, the activity must be carried out, that is, performed or done, for recreational purposes, and must be carried out, or performed or done, ‘on, in or under, waters’. In my view, in context of the SRWA Act, and the interdependent definitions provided for in ss 7 and 8, a discrete, identifiable activity or range of activities are contemplated by the provision. This is consistent with the Note in s 7(1), which provides that recreational water activities dealt with under the Act are only those provided by a person in conducting a business or undertaking and under the management or control of the person.
  1. [40]
    Turning to s 8(1), on a plain reading, a person conducting a business or undertaking only ‘provides’ a recreational water activity if the ‘activity’ is provided under the person’s management or control. Use of the words, ‘provides’, ‘provision’ and, in s 8(2) ‘provided activity’ connote some active, as opposed to passive, conduct in offering a particular ‘activity’ in the course of the business or undertaking. Therefore, in my view, on a proper construction, to fall within the definition in s 8, a person must in the course of the business or undertaking actively give or offer a particular ‘activity’ which they manage or control. Relevantly, it must be a recreational water activity.
  1. [41]
    As discussed, the words ‘provides’ and ‘under the management or control’ given their ordinary meaning connote active conduct, suggesting (consistently with the construction adopted in relation to s 7) the person’s business or undertaking must offer the activity or activities under their management or control. Further, the words connote the active provision of a particular activity or range of activities wherein patrons rely upon the person conducting the business to instruct them as to the manner in which to engage in the activity, or for the person to actively control where and how and the conditions under which the provided activity is performed.
  1. [42]
    Provision of access to a place and supervision are only included in providing a recreational water activity in the circumstances that they are done ‘as part of’ management or control of the recreational water activity. Consistently, in my view, pursuant to s 8, ‘provision of access to a place’ and ‘supervision’ only fall within the definition of provision of a recreational water activity if provided ‘as part of’ the management or control of the provided recreational water activity. If they can only be within the meaning of provides a recreational water activity ‘as part of’ ‘the provision’ of the activity, it follows that they cannot of themselves, without more, constitute providing the recreational water activity. To interpret them in this way is consistent with the construction I have adopted in respect of the definition in s 8(1), which requires the active provision by the person conducting the business of the relevant provided activity, if it is to fall within the definition. Mere provision of access to a place cannot constitute the provision of a recreational water activity. Nor, applying the same construction, can supervision.
  1. [43]
    Following this reasoning, I make the observation that it does not appear to me that a combination of those matters in s 8(2) could constitute provision of a recreational water activity. However, I do not need to decide whether that is so, having regard to my conclusions set out in the paragraphs which follow.
  1. [44]
    The WHS Prosecutor urged consideration of ENs[13] under the Acts Interpretation Act 1954(Qld) (AI Act).  Such consideration is permissible in circumstances that a provision is ambiguous or obscure;[14] the outcome of giving the provision its ordinary meaning manifestly absurd or unreasonable;[15] or to confirm the interpretation conveyed by the ordinary meaning of the words.[16]
  1. [45]
    In my view, it is unnecessary to consider the ENs. There is no ambiguity, obscurity or manifest absurdity or unreasonableness. If I am wrong and consideration should be given to the ENs, although the Bill may have been drafted with regulation of recreational diving and snorkelling in contemplation of Parliament, it is acknowledged in the ENs themselves that the definition of recreational water activities is broadly drafted in the event other activities are to be regulated. That being so, in my view, the ENs would not assist. Interpreting s 8 according to its ordinary meaning, I would not accept, as the WHS Prosecutor appears to argue, that the SWRA Act is intended to cover only recreational diving and snorkelling or activities of a similar character. Indeed, the acknowledgement in the ENs that it is broadly drafted appears to fly in the face of the limitation contended for.
  1. [46]
    In summary, s 8(1) contains the relevant definition providing for when a person is engaged in provision of a recreational water activity. To determine whether there is an activity which is a recreational water activity, s 7 is relevant. Section 8(2) effectively extends the definition of what is included in the provision of recreational water activity to include certain matters that would not otherwise fall within it, when done as part of the management or control of the provided activity. Relevantly, these may include provision of a place and supervision.

Did Whitsunday Regional Council provide a recreational water activity based on the particulars alleged?

  1. [47]
    The essential question is whether the Council is alleged by the particulars to be a person conducting a business that provided a recreational water activity, and thereby had the duty of care provided for in s 16(1) of the SRWA Act.
  1. [48]
    The Lagoon is a pool. Therefore, it falls within the definition of waters in the SRWA Act. The particulars allege that the Council owns, operates, maintains the Lagoon, and engages in the business of providing the Lagoon for use by members of the public. The particulars do not specify a particular use or uses members of the public make of the Lagoon. That said, it is specified to be an aquatic facility, inferring use for water-related activity generally. The Council refers to the uses or conduct broadly as ‘swimming’ and ‘recreational swimming.’ The WHS Prosecutor refers to it in submissions as ‘self-guided swimming.’
  1. [49]
    The particulars do not directly allege that the Council provides a recreational water activity or swimming or recreational swimming. Swimming is referred to in the particulars, only by reference to the alleged failure to of Council to put in place controls, including a risk assessment considering, among other things, the swimming capabilities of persons who visit the Lagoon.
  1. [50]
    Here, the Council submits in effect that it is alleged by inference against it that by owning, operating and maintaining the Lagoon, it provides a recreational water activity, namely recreational swimming, to members of the public. It submits that it is alleged against it as part of its management and control of recreational swimming, it provides access by members of the public to the Lagoon, and supervision by way of lifeguarding services. It submits that at therefore, if the complaint is established against it, it owes the duty of care prescribed by s 16 of the SRWA Act.
  1. [51]
    Adopting the construction of ss 7 and 8 of the SRWA Act explained earlier in these reasons for decision, and applying it to the facts alleged in the particulars, the Council does not provide an ‘activity’ to members of the public who are users of the Lagoon, and in particular, it does not ‘provide’ the activity of ‘recreational swimming.’ It provides only a place which members of the public may avail themselves of for their use, namely an aquatic facility, the Lagoon. Further, it is not alleged that whatever is done by members of the public when using the Lagoon is done under the management or control of the Council in conducting the business of providing the Lagoon. That is, members of the public are not alleged for the purposes of the SWRA Act to undertake or engage in an activity conducted by the Council and under its management or control.
  1. [52]
    Based on the allegations made, it is open to members of the public to initiate and engage in activities in the Lagoon as they see fit. A range of options would be available to them on the particulars alleged. They may decide to swim in the Lagoon. They may play water games with family members or friends. They may paddle or sit in the Lagoon. In my view, it is not alleged that Council provides an activity, as opposed to the use of an aquatic facility, to members of the public.
  1. [53]
    It is alleged that there was a risk in providing the Lagoon, in particular a risk from drowning. Further, it is alleged the Council had an obligation to eliminate or minimise risks associated with providing the Lagoon for use by way of controls including minimum numbers of lifeguards and a risk assessment having regard to matters including swimming capabilities of users of the Lagoon. That does not amount to an allegation that Council manages or controls a provided activity (including swimming) within the meaning of the SRWA Act. It is merely to the effect that Council, in eliminating or minimising risks associated with making the Lagoon available to members of the public for use, was obliged to consider, amongst other things, swimming capabilities of those using the Lagoon.
  1. [54]
    As discussed earlier, mere provision of a place, namely the Lagoon, and supervision, by way of lifeguarding, of themselves cannot, and do not here satisfy the definition of provision of a recreational water activity.
  1. [55]
    In summary, in my view, the particulars do not allege the Council conducts a business offering an activity, (including an activity of recreational swimming), in the Lagoon which it manages or controls. Further, and even if I am wrong and it should be inferred by the particulars that an activity is provided by Council, for the reasons explained, there is no activity alleged against the Council which falls within the definition of a ‘recreational water activity’ within the meaning of that term as defined in s 7 of the SRWA Act. Further, nor is the Council alleged to provide a recreational water activity within the meaning of s 8 of the SRWA Act.
  1. [56]
    Accordingly, on the basis of the particulars alleged, the duty provided for in s 16 of the SRWA Act does not arise and does not apply to the Council.

Orders

  1. [57]
    It follows that the Council’s application for a permanent stay or strike out of the complaint should be dismissed.
  1. [58]
    I make orders accordingly.

Footnotes

[1]  Exhibit 1.

[2]  WHS Act s 3.

[3]  WHS Act s 19(1).

[4]  WHS Act s 19(2).

[5]  WHS Act s 19(3).

[6]  SRWA Act s 3(1).

[7]  SRWA Act s 3(3). See also s 4.

[8]  SRWA Act s 16(2)(a).

[9]  SRWA Act s 16(2)(d).

[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[11] Acts Interpretation Act 1954 (Qld) (AI Act), s 14(4) provides that a note in an Act to the Act or to a provision of the Act, is part of the Act.

[12]  AI Act, s 14(3) provides that an example in an Act of the operation of a provision of the Act, is part of the Act.

[13]  AI Act, s 14B provides for regard to be had to extrinsic material in prescribed circumstances.

[14]  AI Act, s 14B(1)(a).

[15]  AI Act, s 14B(1)(b).

[16]  AI Act, s 14B(1)(c).

Close

Editorial Notes

  • Published Case Name:

    Office of Work Health & Safety Prosecutor v Whitsunday Regional Council

  • Shortened Case Name:

    Work Health and Safety Prosecutor v Whitsunday Regional Council

  • MNC:

    [2023] QMC 3

  • Court:

    QMC

  • Judge(s):

    Magistrate Howard

  • Date:

    19 May 2023

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QMC 319 May 2023Magistrate Howard
Primary Judgment[2024] QSC 2505 Mar 2024Sullivan J

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355

Cases Citing

Case NameFull CitationFrequency
Whitsunday Regional Council v Work Health and Safety Prosecutor [2024] QSC 25 2 citations
1

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