Student drownings lead to WHS prosecutions
Queensland Teachers' Journal, Vol 129 No 8, 1 November 2024, page no. 14
The Queensland Department of Education reviewed its curriculum activity risk assessment (CARA) guidelines in relation to swimming in 2023, in the context of incidents around Australia.
Essentially, these changes were passively communicated through ConnectED. The QTU continues to fervently call for a more active communication strategy to ensure principals and teachers (and particularly physical education teachers) are fully aware of the changes to the two swimming CARA guidelines and the reasons for the changes.
Victoria
In May 2024, the Victorian Department of Education and an aquatic centre were both convicted under Victoria’s Occupational Health and Safety Act 2004. On 21 May 2021, 28 Year 2 students attended the Belfast Aquatic Community Pool and Fitness Centre. While one student drowned, the investigation revealed that many more students were put at risk as a result of the activities engaged in on that morning, which involved an inflatable obstacle course.
WorkSafe Victoria’s summary of the prosecution states: “At the time of the incident, it was reasonably practicable for the offender (The Crown – The State of Victoria – Department of Education) to eliminate or reduce the risk by providing and maintaining a system of work in which, prior to allowing children to enter the pool and use the device, it provided Belfast with information about the children’s swimming abilities.”
Queensland
On 26 February, a teacher was sentenced in the Hervey Bay Magistrates Court for breaching section 32 (Failure to comply with health and safety duty) of the Work Health and Safety Act 2011 (Qld). The prosecution arose from an incident that occurred in March 2019 during a guided tour of K’gari (Fraser Island), when two 16-year-old students drowned in Lake McKenzie.
Magistrate McGarvie noted that the defendant was a teacher with more than 30 years’ experience and was in a position of trust as the senior teacher accompanying the tour. Her Honour remarked that the defendant could easily have stopped the children from swimming or could have adequately supervised them, but failed to do so.
South Australia
In July 2023, a South Australian private college was fined after one student drowned and others were exposed to serious injury. In March 2021, a 16-year-old student drowned while rock fishing, after he jumped into the sea to rescue another student. SafeWork SA’s investigation found that the teachers supervising the students did not have any work health or safety training, even though the school had identified rock fishing as a risk identified on the excursion permission slip. SafeWork SA found that the college failed to comply with its work health and safety duty to ensure that the health and safety of students was not put at risk by work caried out as part of the business and failing to provide and maintain, as far as was reasonably practicable, a safe system of work.
The Queensland Department of Education, as the person conducting the business or undertaking (PCBU), has a primary duty of care to its staff and students to ensure, so far as is reasonably practicable, the health and safety of all (s19 WHS Act) and must do so ensuring:
- the provision and maintenance of a work environment without risks to health and safety
- the provision and maintenance of safe systems of work
- the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risk to their health and safety arising from work
- that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
An active communication campaign that spotlights the importance of swimming guidelines is more than reasonably practicable. Too often, the department does not take all reasonable steps due to costs, however under the definition of reasonably practicable (as defined in the WHS Act), for the Department of Education not to take action that could eliminate or minimise the risk, the cost needs to be grossly disproportionate to the risk. An active communication strategy can in no way be seen as grossly disproportionate to the risk to staff and students.