Whitsunday Regional Council fails in bid to strike out criminal charges after father and son drown in Airlie Beach lagoon

A regional council will face prosecution by the workplace safety regulator over what is alleged to be a failure to prevent death or serious injury, after a father and son tragically drowned in a public lagoon. Whitsunday Regional Council, in Queensland’s North, was issued with a court summons by the state’s Office of Work Health and Safety (WHS) over the incident in 2018. Chinese national Yuanwei Zhang, 30, and his five-year-old son Chenxi were both pulled unconscious from the Airlie Beach lagoon, a popular swimming spot in the Whitsundays, on October 28 that year. They were both taken to Proserpine Hospital in critical conditions but died shortly after. Whitsunday Regional Council ran the lagoon as a public swimming pool and is facing two charges of failing to comply with its primary duty of care under the Work Health and Safety Act. WHS alleges the risk of drowning could have been eliminated, or minimised, had the council put the minimum number of lifeguards on duty at the time. It is further alleged the council’s lack of a risk assessment and inspection of the contractor “engaged to provide lifeguarding and maintenance services” also contributed to the incident. At Proserpine Magistrates Court in May, the council applied to have the proceedings struck out or indefinitely stayed. Their lawyers argued there was no prospect of a conviction because an entirely different act – known as the Safety in Recreational Water Activities Act (SRWA) – applied and subsequent prosecution of the council would fail. But this was rejected by Magistrate Michelle Howard, who said the SRWA Act did not apply in this case. “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,” Magistrate Howard said. “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. She dismissed the application for a stay of proceedings. Jie Tan, Mr Zhang’s widow, received a multimillion-dollar settlement with Whitsunday Regional Council over the deaths earlier this year, the ABC reports.