Comcare v Subsee Explorer Pty Ltd

The court was presented with a case involving Subsee Explorer Pty Ltd, which was contracted to build and supply six Immigration Response Vessels (IRVs) to the Department of Immigration and Multicultural Affairs (DIMA). Tragically, one of these vessels, the Malu Sara, sank in the Torres Strait, leading to the deaths of two employees and three members of the public. The Commonwealth, acting through Comcare, brought proceedings against Subsee for breaches of the Occupational Health and Safety Act 1991 (Cth). Subsee admitted to breaches of sections 18(1) and 19(1) of the Act, which relate to the design, construction, and supply of vessels that were not safe for use at work.

The court had to determine the appropriate pecuniary penalty to impose on Subsee for these breaches. The decision-making process was informed by principles outlined in previous cases, particularly Comcare v The Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207. The court considered the seriousness of the breach, the extent of non-compliance with relevant standards, and any mitigating factors. Subsee's admissions highlighted multiple failures in the construction and supply of the Malu Sara, including deficiencies in design, inadequate testing, and failure to provide essential information to DIMA. The court acknowledged the significant impact on the families of the deceased, particularly highlighting the pain and anguish of one bereaved sister.

After thorough consideration, the court found that Subsee's conduct was extensive and substantial, warranting a significant penalty. The court determined that the maximum penalty of $242,000 should be imposed on Subsee for the breaches of sections 18(1) and 19(1) of the OHS Act, noting that only one penalty could be imposed despite the dual contraventions stemming from the same conduct. The court also ordered Subsee to pay Comcare's costs, to be taxed or agreed upon. This decision underscored the importance of stringent compliance with occupational health and safety standards in high-risk industries.