On 18 February 2026, a commercial tour company was sentenced in the Mackay Magistrates Court for breaching section 23 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.

The defendant conducted a commercial tour business that provided recreational water activities, including snorkelling, at the Whitsundays. On 29 January 2024, the defendant conducted a snorkelling tour to Saba Bay, near Hook Island, departing from Coral Sea Marina, Airlie Beach.

Among the passengers was a group of six Chinese-speaking people. No members of this group could read English, and they had only the most basic command of spoken English.

Once all passengers were aboard, a safety briefing was provided, and the passengers were each asked to sign a medical declaration. Despite signing them, the members of the group could not read the medical declarations, some of them believing it was a sign-on roll call, or for collection of stinger suits.

The medical declarations were, amongst other things, controls directed at managing the risks associated with snorkelling through the identification of ‘at risk’ snorkellers, as that term is contemplated in item 4.1 of the Recreational Diving, Recreational Technical Diving and Snorkelling Code of Practice 2018 (‘the Code’).

In terms of non-English speaking snorkelers, including those assessed as being ‘at risk’, the Code prescribed that information and advice should be given to a non-English speaking person in a manner that enhances undertaking by them. This should occur through the information being explained to the person snorkelling by an instructor who speaks the same language as the non-English speaking person, through an interpreter, or through the use of instruction sheets written in a language the non-English speaking person can read and understand.

Neither a Chinese-speaking instructor nor interpreter were aboard the vessel, although an instruction sheet titled ‘Safety Information for Divers and Snorkellers’ was aboard and in a readily accessible location. Despite this, no translation of the warning regarding medical conditions was given to the group.

The crew should have given the group the translated Safety Information for Divers and Snorkellers publication. In not doing so, the defendant failed to comply with the duty it owed.

The defendant entered a plea of guilty on 16 December 2025 and sentencing submissions were heard on 13 February 2026.

In sentencing the defendant, Magistrate Dwyer had regard, in furtherance of the main object of the Act, that ‘regard must be had to the principle that persons should be given the highest level of protection as is reasonably practicable against harm to their health, safety and welfare from hazards and risks arising from the provision of recreational water activities’.

His Honour had regard to the principles set out in Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20 and noted the need for any penalty to deter and denounce the conduct. In mitigation, his Honour considered that the failure was not a systemic breach but rather an isolated failure on the part of an employee. His Honour also had regard to the defendant’s prior good character, voluntary cooperation with investigators, early plea of guilty, and remorse.

Magistrate Dwyer convicted and fined the defendant $30,000 and exercised his discretion not to record a conviction.

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