Safety in Recreational Water Activities Act 2011

A recreational water activity is defined by section 7 as an activity carried out for the purposes of recreation and on, in or under waters. The Act gives examples: diving and snorkelling. The activity must be provided by a PCBU in the conduct of a business or undertaking and under the management or control of that person. Provision of a recreational water activity is defined by section 8(1) as occurring when the activity is provided under the management or control of the PCBU. Section 8(2) provides that provision includes any of the following done as part of management or control: the provision of access to a place; supervision; supply of anything; advice, demonstrations or training. A retail business selling fins and snorkelling masks alone is not providing recreational water activities (s 8(2) example).

Health and safety duty for recreational water activities is defined by section 20 as a duty imposed under division 2 of part 2. That division contains the primary duty of care (s 16), duty of officers (s 17), duties of workers (s 18), and duties of other persons (s 19). The content of each duty is discussed below.

Reasonably practicable is defined by section 15 in relation to a duty to ensure health and safety. It means that which is, or was at a particular time, reasonably able to be done, taking into account and weighing up all relevant matters including: the likelihood of the hazard or risk occurring; the degree of harm that might result; what the person knows or ought reasonably to know about the hazard or risk and ways of eliminating or minimising it; the availability and suitability of ways to eliminate or minimise the risk; and, after assessing the extent of the risk and available ways, the cost associated with those ways, including whether the cost is grossly disproportionate to the risk.

The Act creates three categories of offences for failures to comply with health and safety duties. A category 1 offence under section 21 requires that the person has a duty, without reasonable excuse engages in conduct exposing an individual to a risk of death or serious injury or illness, and is reckless or negligent as to that risk. A category 2 offence under section 22 requires a failure to comply with a duty that exposes an individual to a risk of death or serious injury or illness. A category 3 offence under section 23 requires only a failure to comply with a duty, without any exposure element. The Act also contains an industrial manslaughter offence in part 2A, inserted in 2017. Section 25C creates an offence for a PCBU whose conduct causes the death of a worker and who is negligent about causing that death. Section 25D creates a parallel offence for a senior officer of the PCBU.

Notifiable incidents are defined by section 26 and include the death of a person, a serious injury or illness of a person, or a dangerous incident. Serious injury or illness is defined in section 27 and includes requiring immediate treatment as an in-patient in a hospital or immediate treatment for specific conditions (amputation, serious head injury, serious eye injury, serious burn, separation of skin from underlying tissue, spinal injury, loss of a bodily function, serious lacerations) and includes any other injury or illness prescribed under a regulation. A dangerous incident is defined in section 28 and includes uncontrolled escape, spillage or leakage of a substance; uncontrolled implosion, explosion or fire; uncontrolled escape of gas or steam; uncontrolled escape of a pressurised substance; electric shock; fall or release from a height of plant, substance or thing; or any other event prescribed under a regulation.

Approved codes of practice may be approved by the Minister under section 43. They are admissible in proceedings as evidence of whether a duty has been complied with (s 44(2)). The court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control, and may rely on it in determining what is reasonably practicable (s 44(3)). Compliance with a code is not mandatory; a person may introduce evidence of compliance in a different way that provides an equivalent or higher standard (s 44(4)).

The Act incorporates substantial enforcement and procedural provisions from the WHS Act by reference. Part 4 (enforcement) applies provisions of the WHS Act relating to the regulator, inspectors, enforcement measures, enforceable undertakings, review of decisions, and legal proceedings, with modifications to refer to recreational water activities.

The primary duty holders are persons conducting a business or undertaking (PCBUs) that provide recreational water activities. This includes commercial dive operators, surf schools, jet ski hire businesses, kayak tour operators, and any other entity that, in the conduct of a business or undertaking, provides access to, supervision of, or training for recreational water activities under its management or control (s 8). Retail businesses that merely sell equipment such as fins and snorkelling masks are expressly excluded by the example in section 8(2). The duty extends to ensuring the health and safety of persons for whom the activities are provided (participants), so far as is reasonably practicable (s 16(1)).

Officers of a PCBU have a duty under section 17 to exercise due diligence to ensure that the PCBU complies with its duties or obligations under the Act. Due diligence includes acquiring and keeping up-to-date knowledge of recreational water activities health and safety; understanding the nature of the operations and associated hazards and risks; ensuring the PCBU has and uses appropriate resources and processes to eliminate or minimise risks; ensuring appropriate processes for receiving and considering information about incidents, hazards and risks and responding in a timely way; ensuring the PCBU has and implements processes for complying with its duties (including reporting notifiable incidents, ensuring compliance with notices, and ensuring provision of training and instruction); and verifying the provision and use of those resources and processes (s 17(5)).

Workers while providing recreational water activities at work have a duty under section 18 to take reasonable care that their acts or omissions do not adversely affect the health and safety of persons for whom the activities are provided, and to comply so far as reasonably able with any reasonable instruction given by the PCBU to allow compliance with the Act.

Other persons present at a place where recreational water activities are provided have duties under section 19. This includes participants (persons for whom the activities are provided) and onlookers or persons present for some other reason. They must take reasonable care for their own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons present, and comply so far as reasonably able with any reasonable instruction given by the PCBU to allow compliance with the Act.

Volunteers are generally exempt from liability for failure to comply with a health and safety duty, except for duties under section 18 (worker duties) or section 19 (duties of other persons) (s 25(1)). Unincorporated associations do not commit an offence for failure to comply with a duty or obligation imposed on them under the Act, but their officers (other than volunteers) may be liable under section 17, and members may be liable under sections 18 or 19 (s 25(2)-(3)). For industrial manslaughter, a volunteer does not commit an offence under part 2A (s 25B(1)), but a senior officer of an unincorporated association (other than a volunteer) may commit an offence (s 25B(2)).

The Act binds the State, the Commonwealth (so far as the legislative power of the Parliament permits) and other States (s 9). They are liable for offences.

The primary duty of care is imposed by section 16(1): a PCBU 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 activity. Section 16(2) specifies that this includes, without limitation, ensuring the provision and maintenance of safe plant and structures; the safe use, handling and storage of plant, structures and substances; the provision of any information, training, instruction or supervision necessary to protect persons from risks arising from the provision of the activities; and that persons and conditions at a place where recreational water activities are provided are monitored for the purpose of preventing illness or injury.

The duty of officers under section 17 requires due diligence to ensure the PCBU complies. This duty is personal and cannot be transferred (s 11). An officer may be convicted or found guilty of an offence under this Act whether or not the PCBU has been convicted or found guilty (s 17(4)). The maximum penalty for an officer varies depending on the underlying duty: if the PCBU's duty was imposed under a provision other than division 2, the officer's maximum penalty is the maximum fixed under that provision for an individual who fails to comply (s 17(3)). Where the PCBU's duty is under division 2, the officer's penalty is as fixed by division 3 for an officer (s 17(2)).

Workers (s 18) and other persons (s 19) have duties of reasonable care. These duties do not require elimination or minimisation of risks to the same standard as the primary duty; they use a "reasonable care" standard.

Management of risks is governed by section 14: a duty to ensure health and safety requires the person to eliminate risks so far as is reasonably practicable, and if elimination is not reasonably practicable, to minimise those risks so far as is reasonably practicable.

Concurrent duties are addressed by section 13. More than one person can have the same duty concurrently. Each duty holder must comply to the standard required even if another duty holder has the same duty. Where more than one person has a duty for the same matter, each retains responsibility and must discharge the duty to the extent to which the person has the capacity to influence and control the matter, or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

Notification rights and duties: The PCBU must notify the regulator immediately after becoming aware that a notifiable incident has occurred (s 29(1)). The notice must be given by the fastest possible means (s 29(2)), by telephone or in writing (s 29(3)). A written notice must be in a form approved by the regulator (s 29(5)). The PCBU must keep a record of each notifiable incident for at least five years from the day notice is given (s 29(7)). The person with management or control of the place must ensure, so far as is reasonably practicable, that the site is not disturbed until an inspector arrives or directs otherwise (s 30(1)). Certain actions are excepted: assisting an injured person, removing a deceased person, making the site safe, police investigations, or with permission (s 30(3)).

No contracting out: Section 42 provides that any term of an agreement or contract that purports to exclude, limit or modify the operation of the Act or any duty owed under it, or to transfer a duty to another person, is void.

Insurance prohibition: Section 42A (inserted in 2024) makes it an offence to enter into a contract of insurance or other arrangement that purports to insure or indemnify a person for a liability for all or part of a monetary penalty under the Act, to provide such insurance or indemnity, or to take the benefit of such insurance or indemnity. The maximum penalty is 500 penalty units. Terms of such contracts are void to the extent they purport to insure or indemnify (s 42A(3)). Officers of a body corporate may be taken to have committed the offence if they authorised or permitted, or were knowingly concerned in, the body corporate's conduct (s 42B).

Legal professional privilege is preserved by section 39: nothing in the Act requires a person to produce a document or provide information that is subject to legal professional privilege.

The Act does not confer a right of action in civil proceedings for a contravention of a provision (s 37(a)). Nor does it confer a defence to an action in civil proceedings or otherwise affect a right of action in civil proceedings (s 37(b)-(c)). Civil liability for breaches of duties under the Act (e.g., in negligence) continues to be governed by the general law.

The Act creates a three-tiered offence structure for breaches of health and safety duties, plus a specific industrial manslaughter offence.

Category 1 (section 21): requires the person to have a health and safety duty and, without reasonable excuse, engage in conduct that exposes an individual to a risk of death or serious injury or illness, with negligence or recklessness. Maximum penalties: an individual not as a PCBU or officer: 3,000 penalty units or 5 years imprisonment; an individual as a PCBU or officer: 6,000 penalty units or 5 years imprisonment; a body corporate: 30,000 penalty units. A category 1 offence is a crime (s 21(3)). The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse (s 21(2)).

Category 2 (section 22): requires a failure to comply with a health and safety duty that exposes an individual to a risk of death or serious injury or illness. Maximum penalties: individual not as PCBU or officer: 1,500 penalty units; individual as PCBU or officer: 3,000 penalty units; body corporate: 15,000 penalty units.

Category 3 (section 23): requires only a failure to comply with a health and safety duty; no exposure element. Maximum penalties: individual not as PCBU or officer: 500 penalty units; individual as PCBU or officer: 1,000 penalty units; body corporate: 5,000 penalty units.

Industrial manslaughter (part 2A, sections 25C and 25D): A PCBU commits an offence if a worker dies in the course of carrying out work for the business or undertaking (or is injured and later dies), the PCBU's conduct causes the death, and the PCBU is negligent about causing the death. Maximum penalty: individual: 20 years imprisonment; body corporate: 100,000 penalty units. A senior officer of the PCBU commits a parallel offence with a maximum of 20 years imprisonment. These offences are crimes.

Insurance prohibition (section 42A): maximum penalty 500 penalty units. Officers of a body corporate may be liable under section 42B.

Offences in relation to notification and record keeping (sections 29 and 30): failure to notify a notifiable incident: 100 penalty units; failure to keep records for five years: 50 penalty units; failure to preserve site: 100 penalty units.

False or misleading information (section 38): maximum 100 penalty units.

Confidentiality breach (section 41): maximum 100 penalty units; intentional disclosure of a complainant's name: 100 penalty units.

Enforcement powers are largely incorporated from the WHS Act. Inspectors under the WHS Act are inspectors under this Act (s 33(1)). The regulator under the WHS Act is the regulator under this Act (s 32(1)). The WHS Act provisions relating to improvement notices, prohibition notices, non-disturbance notices (part 10), and enforcement measures (part 9 divisions 2-6) apply with modifications (s 33(3)). The Regulator may accept recreational water activities health and safety undertakings (enforceable undertakings) under the WHS Act part 11 as applied (s 34). However, the regulator may not accept such an undertaking if it has already accepted a WHS undertaking under the WHS Act for the same matter and purpose (s 4(8)).

Review of decisions is provided for by section 35. The table in applied WHS schedule 2A (other than in relation to section 102 of the WHS Act) states reviewable decisions and eligible persons. Jurisdiction is conferred on QCAT for external review (s 35(2)). The WHS Act part 12 (other than section 223(1)) applies.

Legal proceedings are governed by the WHS Act part 13 (other than division 7) as applied (s 36), with modifications to refer to category 1 and 2 offences under this Act, offences against part 2A, and work health and safety duty provisions.

The Act's interaction with the Work Health and Safety Act 2011 is the most significant. As noted in section 3(3), the Act operates in conjunction with the WHS Act and adopts substantial provisions from it. The WHS Act continues to apply in addition to this Act (s 4(2)). Where inconsistent, the WHS Act prevails (s 4(3)). However, the Act is not inconsistent merely because it imposes additional duties or increases safety standards (s 4(4)). Where both Acts deal with the same matter and it is impossible to comply with both, the WHS Act must be complied with; where possible, both must be complied with (s 4(5)). Consistency provisions prevent duplication: an inspector may not exercise a compliance power under this Act for a particular matter if an inspector has already exercised a corresponding power under the WHS Act for the same matter and purpose (s 4(7)). The regulator may not accept a recreational water activities health and safety undertaking if it has already accepted a WHS undertaking for the same matter and purpose (s 4(8)).

Compliance with this Act is not a defence for an offence against the WHS Act (s 5).

The Act interacts with the Criminal Code in several ways. Section 24 provides that for a category 2 or category 3 offence, Criminal Code sections 23(1) (mistake of fact) and 24 (extraordinary emergencies) are subject to division 2 of part 2 (the duties). For industrial manslaughter, Criminal Code section 23 does not apply (s 25B(3)). Category 1 offence is a crime (s 21(3)), which has implications under Queensland criminal procedure.

The Penalties and Sentences Act 1992 applies, with section 181B relevant for body corporate penalties (s 21(1) note).

The Statutory Instruments Act 1992 governs regulation-making powers (s 45(4)-(5)).

Transitional provisions in parts 6 and 7 deal with the relationship with the repealed Workplace Health and Safety Act 1995. Section 48 preserves enforceable undertakings made under that Act. Sections 49 to 52 preserve actions by inspectors, improvement notices, prohibition notices, and reviews and appeals. Section 53 provides that where both part 6 of this Act and part 17 of the WHS Act deal with the same transitional matter, the provision of this Act applies (s 53(2)). The Act may also interact with other legislation that regulates water activities, such as marine safety laws, but the Act itself does not address those.

The Act was originally enacted in 2011 (Act No. 19 of 2011). It commenced on a day to be fixed by proclamation (s 2). It replaced the former Workplace Health and Safety Act 1995 for the purposes of recreational water activities health and safety, as indicated by the transitional provisions in part 6.

2017 amendment (No. 38 of 2017, sections 62-64): Inserted part 2A (Industrial manslaughter) containing sections 25A to 25D. This created offences for PCBU and senior officers where a worker dies and the person's conduct causes the death with negligence. Section 34 was also amended to add a reference to offences against part 2A in the application of the WHS Act part 11 on enforceable undertakings. Section 36 was amended to add a reference to offences against part 2A in the application of the WHS Act part 13 on legal proceedings.

2024 amendment (No. 11 of 2024, sections 4, 6, 10, 11): Inserted new sections 42A (insurance or other indemnity against penalties) and 42B (officer liability for body corporate offence under s 42A). Inserted part 7 (section 54) with transitional provisions for the application of section 42A, providing phased commencement: subsections (1)(a) and (b) apply to contracts entered into or indemnities provided on or after six months after commencement; subsection (1)(c) applies to persons on or after 18 months after commencement; subsection (3) (void terms) applies to contracts entered into or indemnities provided on or after commencement. Section 35 was amended to update the reference to QCAT. Section 41 was amended (the nature of the amendment is not specified in the text but the section note indicates amendment by No. 11 s 11).

2024 amendment (No. 44 of 2024, section 38): Amended section 21. The text of the Act as provided shows "s 21 amd 2024 No. 44 s 38". The nature of the amendment is not detailed in the provided source text.

The Act itself does not contain any references to specific judicial decisions or litigation outcomes. The provided text of the Act does not name any cases. As the Act operates in conjunction with the Work Health and Safety Act 2011 and adopts substantial provisions from it, judicial interpretations of parallel provisions in that Act may be relevant to the construction of this Act, but no such case law is recorded in the statute. The transitional provisions in part 6 preserve certain pre-existing enforcement actions (improvement notices, prohibition notices, enforceable undertakings) and reviews and appeals under the repealed Workplace Health and Safety Act 1995, but do not record any specific litigation history. Accordingly, a detailed litigation history cannot be derived from the source text alone.

Participants can be liable. Persons for whom recreational water activities are provided (participants) have specific duties under section 19. They must take reasonable care for their own health and safety, take reasonable care that their acts or omissions do not adversely affect others, and comply with reasonable instructions from the PCBU. A participant who engages in reckless behaviour that exposes themselves or others to risk may be prosecuted under category 1 if the elements are met. Volunteers are not exempt from these duties (s 25(1)).

Compliance with this Act is no defence for the WHS Act. Section 5 explicitly states that compliance with this Act or a duty or requirement under it is not in itself a defence in a proceeding for an offence against the WHS Act. A PCBU must comply with both Acts, and meeting the standards of this Act does not automatically satisfy WHS Act obligations for workers.

Officer duty is independent of PCBU liability. An officer can be convicted or found guilty of an offence relating to the duty under section 17 whether or not the PCBU has been convicted or found guilty of an offence relating to the duty or obligation (s 17(4)). This means officers cannot rely on the absence of prosecution of the company as a shield.

No contracting out. Any term of an agreement or contract that purports to exclude, limit or modify the operation of the Act or any duty owed under it, or to transfer a duty, is void (s 42). Indemnities or waivers signed by participants that attempt to exclude the PCBU's duty would be unenforceable.

Insurance against penalties is prohibited. Section 42A makes it an offence to insure against monetary penalties under the Act. This applies to contracts entered into on or after six months after commencement of the 2024 amendment (for entering into or providing) and to persons taking the benefit on or after 18 months after commencement. Existing policies may need to be reviewed. Terms that purport to insure against penalties are void from commencement (s 54(3)).

Notifiable incidents include dangerous incidents. The definition in section 28 is broad and includes uncontrolled escape of a substance, explosion, fire, electric shock, and fall from height. Even if no injury occurs, a dangerous incident must be notified immediately. Failure to notify attracts a maximum penalty of 100 penalty units. Incident sites must be preserved until an inspector arrives (s 30).

Codes of practice are not mandatory but are powerful evidence. Non-compliance with an approved code of practice is not itself an offence, but the code is admissible in proceedings as evidence of whether a duty has been complied with (s 44(2)). A court may rely on the code in determining what is reasonably practicable (s 44(3)). A person who departs from the code must be able to demonstrate that they have achieved an equivalent or higher standard (s 44(4)).

The definition of serious injury or illness includes decompression illness. The example in section 27 specifically mentions treatment for a serious decompression illness arising while diving. This is relevant for dive operators and anyone providing underwater activities.

Concurrent duties cannot be contracted away. Section 13(3)(b) provides that a person must discharge their duty to the extent they have the capacity to influence and control the matter, or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. A PCBU cannot avoid responsibility by outsourcing supervision or training if they retain influence.

Compliance with the Act requires a systematic approach to risk management and duty fulfilment. The key steps are set out below.

1. Identify whether the Act applies to you. Determine whether your business or undertaking provides recreational water activities (activities for recreation on, in or under waters) under your management or control (ss 7, 8). If you only sell equipment, the Act likely does not apply to you as a provider. But if you provide access to a place, supervision, supply of anything, advice, demonstrations or training for recreational water activities, you are likely a PCBU providing recreational water activities (s 8(2)).

2. Understand your duties. As a PCBU, you have a primary duty under section 16 to ensure, so far as is reasonably practicable, the health and safety of persons for whom the activities are provided. This includes providing and maintaining safe plant and structures, safe use handling and storage of plant and substances, providing necessary information training instruction and supervision, and monitoring persons and conditions to prevent illness or injury. Officers must exercise due diligence under section 17 to ensure the PCBU complies. Workers must take reasonable care under section 18. Participants and other persons have duties under section 19. Identify all persons in your operations who owe duties.

3. Implement a risk management process. Section 14 requires elimination of risks so far as is reasonably practicable, and if not possible, minimisation so far as is reasonably practicable. Use the definition in section 15 to assess: likelihood and degree of harm, what you know or ought to know about hazards and controls, availability and suitability of controls, and cost (including whether grossly disproportionate). Document your risk assessments and control measures. Regularly review and update them.

4. Provide information, training and supervision. Section 16(2)(c) requires the provision of any information, training, instruction or supervision that is necessary to protect persons from risks. This includes pre-activity briefings, safety demonstrations, and on-water supervision. Ensure training is appropriate to the activity and participant skill level.

5. Monitor conditions and persons. Section 16(2)(d) requires monitoring of persons and conditions at the place where activities are provided for the purpose of preventing illness or injury. This may include weather monitoring, water conditions, participant health checks (e.g., fitness to dive), and supervision during the activity.

6. Prepare for incident notification. Know what constitutes a notifiable incident: death, serious injury or illness (including decompression illness requiring hospital treatment or immediate treatment for specified injuries), or dangerous incident (uncontrolled escape, explosion, fire, electric shock, fall from height, etc.). Have a procedure for immediately notifying the regulator by telephone or writing using the fastest possible means (s 29). Keep a record of each notifiable incident for at least five years (s 29(7)). Ensure that the site is not disturbed until an inspector arrives, aside from authorised actions (s 30).

7. Officer due diligence. Officers must take reasonable steps to: acquire and maintain knowledge of recreational water activities health and safety; understand the nature of operations and associated hazards; ensure the PCBU has and uses appropriate resources and processes; ensure processes for receiving and considering incident information; ensure the PCBU has and implements compliance processes; and verify the provision and use of resources and processes (s 17(5)). Regular board-level review of safety performance, audit of risk controls, and engagement with safety matters are expected.

8. Follow approved codes of practice. Where the Minister has approved a code of practice under section 43, consider adopting its methods. While not mandatory, compliance with a code provides strong evidence of meeting duties (s 44). If you choose alternative methods, be prepared to demonstrate they provide an equivalent or higher standard.

9. Do not contract out of duties. Avoid contractual terms that purport to exclude, limit or modify duties under the Act or transfer them to another person; such terms are void (s 42). Do not obtain insurance or indemnities against monetary penalties under the Act; doing so is an offence (s 42A). Review existing insurance policies for any terms that may contravene the prohibition, and ensure new policies exclude cover for penalties under this Act.

10. Ensure compliance with the WHS Act in parallel. Remember that the WHS Act applies in addition to this Act (s 4(2)). Compliance with this Act is not a defence under the WHS Act (s 5). You must also meet your duties to workers under the WHS Act. In particular, the primary duty under section 16 of this Act does not cover workers in their capacity as workers; the WHS Act provides for those persons (s 8(4)). Ensure you have a comprehensive safety management system that addresses both Acts.