On 26 September 2025, a commercial tour company was sentenced in the Cairns Magistrates Court for breaching section 22 of the Safety in Recreational Water Activities Act 2011 (Qld) (‘the Act’). The defendant pleaded guilty to failing to comply with its primary health and safety duty, thereby exposing individuals to a risk of death or serious injury.

On Monday, 24 October 2022, the Defendant conducted a day trip tour to Saxon Reef approximately thirty (30) nautical miles northeast of Cairns. One of the day trippers was a tourist (‘the snorkeler’), who was travelling with his friends.

Shortly after arriving at Saxon Reef, at approximately 10:20 am, the snorkeler and his friends, along with other passengers, commenced snorkelling within the area that had been designated for that activity.

The designated snorkelling area was monitored by one of the crew of the vessel, performing the role known as ‘lookout’. At approximately 11:00 am, upon returning to the vessel, the snorkeler’s friends noticed that he was not there. They advised a crew member, but nothing was done in respect of locating the missing snorkeler. The snorkeler’s friends searched the entire boat, again without success. They then, once again, alerted a crew member, but, again, nothing was done to find the missing snorkeler.

A short time later, all the passengers who had been either snorkelling or diving returned to the vessel. When it became clear that the snorkeler had not returned to the vessel, passengers once again, alerted a crew member. Unbeknownst to anyone aboard the vessel, the snorkeler had been found a short time earlier, floating face down in the sea by passengers aboard a private vessel, almost a kilometre from where the vessel was moored. He was subsequently pronounced deceased.

The snorkelling was hazardous in that it posed a risk to the health and safety of the passengers, such risk including the possibility of death or serious injury from drowning (“the Risk”).

The identification of snorkelers ‘in difficulty’ was a key aspect of the management of the Risk, part of which concerned the prompt identification, and response, to ‘missing person’ emergencies.

In respect of missing person emergencies, the Defendant’s ‘Dive & Snorkel Procedures Manual’ (“the Manual”) did not specify the triggers used to identify a missing person emergency (i.e. the circumstances in which the missing person procedures or action it prescribed were to be initiated or taken), nor did it prescribe the periodic conduct of drills or other training in, or testin g of, missing person procedures.

For the Risk to have been eliminated or minimised, so far as was reasonably practicable, the Defendant should have ensured that the Manual –

1. specified the triggers used to identify a missing person emergency, including each of the following; and
2. prescribed the periodic conduct of drills or other training in, or testing of, missing person emergency procedures.

The defendant was sentenced on the basis that the particularised failures did not cause the death of the snorkeler, or otherwise materially contribute to their death.

In sentencing the defendant, Magistrate Morton had regard to the maximum penalty for the offence and the purposes of the Act. His Honour noted that general deterrence was an important sentencing consideration for offences of this type and considered that specific deterrence was of less relevance in the circumstances of this matter.

His Honour remarked that the defendant had safety at the forefront of its mind, reflected by the fact that it had substantially undertaken the burden of implementing necessary controls, albeit falling short of what the Act required.

Magistrate Morton took into account the defendant’s early plea of guilty as an indication of remorse and a willingness to facilitate the course of justice. His Honour had regard to the defendant’s lack of prior convictions, otherwise good character, and the considerable steps taken by the defendant post-incident. Submissions were made in relation to the financial capacity of the company and his Honour indicated those had been taken into account.

Having regard to all matters, as well as the comparable decisions referred to by the parties, Magistrate Morton convicted and fined the defendant $60,000 and exercised his discretion not to record a conviction.

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