A regional council has made its third attempt to avoid a workplace safety prosecution over the drowning deaths of a father and son at an artificial lagoon.
Chinese national Yuanwei Zhang and his five-year-old son, Chenxi, died at the Airlie Beach lagoon north of Mackay in Queensland on the afternoon of October 28, 2018.
Neither could be revived after slipping below the water's surface and spending several minutes at the bottom of the lagoon.
Mr Zhang's wife, Jie Tan, reached an out-of-court settlement in April this year with Whitsunday Regional Council, which operated the lagoon as a public swimming pool.
The council in the following months made multiple attempts to stop Queensland's Work Health and Safety Prosecutor from pursuing charges.
The prosecutor alleged that the council could have "minimised or eliminated" the risks to swimmers by ensuring its contractor had sufficient lifeguards on duty at the time of the deaths and by completing a prior risk assessment.
The council previously failed in bids to strike out a summons on the charges and to permanently halt the case.
On Tuesday Brisbane Supreme Court heard the council's application for a judicial review on the matter.
Justice Tom Sullivan said the application raised questions around the threshold required for a Supreme Court to override a decision made by a Magistrates Court.
"There is this issue around whether it's appropriate for this to go before me to resolve on this basis rather than let this thing run through a prosecution with the appropriate appeal," Justice Sullivan said.
The council's barrister, Christopher Murdoch, said the application was made due to exceptional circumstances and claimed the magistrate had made a fundamental error of law.
"The entire basis for the (charges) does not exist," Mr Murdoch said.
The council has claimed that its lagoon did not fall under the prosecutor's jurisdiction as the public swimming area should not have been regulated under the Work Health and Safety Act.
Mr Murdoch said the lagoon should have been regulated by the Safety in Recreational Water Activities Act as the council was providing recreational swimming by opening the lagoon to the public.
"The magistrate has introduced a far higher bar than legislation requires in that you have got to be organising something for it to be for under your management or control," Mr Murdoch said.
The prosecutor's barrister, Sophie Harburg, argued that Safety in Recreational Water Activities Act was intended to regulate businesses directly involved in tourism-related industries such as providing recreational diving and snorkelling equipment and training.
"There's been a complaint on foot now for three years ... there is nothing to warrant Your Honour's intervention in this established criminal process," Ms Harburg said.
Neither Mr Murdoch nor Ms Harburg could provide prior examples where the Supreme Court had or had not overruled a magistrate in closely matching circumstances.
Justice Sullivan reserved his decision, ordered both parties to submit further written submissions, and requested they forward him any similar cases they could find.
