On 4 April 2024,  a defendant pleaded guilty to a ‘Category 3’ offence contrary to s.33 of the Work Health and Safety Act 2011 (‘the WHS Act’).

The defendant had a duty as a person conducting a business or undertaking, pursuant to s.19(2) of the WHS Act, to ensure so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of its business or undertaking and that it failed to comply with that duty.

On 18 October 2022, the defendant used a high pressure water spray to clean an asbestos tile roof at a residential address in West Mackay.

Use of the high water pressure spray on the asbestos tiles caused disturbance and breakage to asbestos containing material (ACM) in the cement tiles, creating airborne asbestos containing dust and debris (ACD) particles to be distributed throughout the workplace.

ACM was present in the corrugated asbestos-cement sheets on the roof at the workplace.  Use of a high-pressure water spray to clean the roof resulted in ACD being released and dispersed over the property and spread to the extent of some of the neighbouring properties common boundary. Once dried the ACD becomes a greater hazard, which if disturbed, has the potential to become airborne and increase the risk of asbestos fibres being respired.

ACD was observed in gutters, below down pipes, ground, and surrounding vegetation.

The magistrate took into account the high degree of risk to the public caused by the offending, and the need for general deterrence in the sentencing tempered by the defendant’s personal and financial circumstances.

The magistrate took into account that this was not a matter where the defendant had demonstrated deliberate disregard for the safety of the public but was a matter of the defendant not appreciating the risk. It was noted that there was some force to the argument that the defendant did not have the requisite training or understanding of the risk noting that he had opened a new business with only 6 months prior experience as a cleaner in the mining industry where he had not received any relevant training.

The defendant was entitled to the full benefit of an early guilty plea. He had demonstrated considerable remorse and had fully co-operated with the investigation.

The defendant had indicated his willingness to pay for the cost of the site remediation subject to referral of the order to SPER.

The magistrate noted that notwithstanding any repayment agreement that the defendant may enter into with SPER, it would cause him considerable financial hardship.

No conviction was recorded against the defendant.

The defendant was also ordered to pay legal costs and court fees of $1,601.40.

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

Court Report

Construction - asbestos
Date of offence
Mackay Magistrates Court
Magistrate or judge
Magistrate K. Hartigan
Decision date

Sections 19(2) and 33 of the Work Health and Safety Act 2011

Guilty (in absentia)
$3,000 fine plus restitution order of $51,041.10
Maximum fine available
Professional and legal costs
Court costs
In default period
Time to pay
Referred to SPER
Conviction recorded