Self Employed Australia

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“Everyone needs an Advocate”

NotAboveTheLaw

To jab or not to jab—That is the work safety question!

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vaccination There are demands of Australian politicians to show leadership and create clarity about whether businesses must require workers to be vaccinated.

Governments are locking us up and denying us freedoms in the name of health and safety. But when it comes to businesses (small and large) and vaccinations, the law is an ass.

It doesn’t matter what a businessperson does. If businesses require vaccinations, they can be in breach of employment, privacy, discrimination and other laws. If they don’t require vaccinations, they arguably put their staff and others at risk and breach work safety laws.

I can just see money-grabbing, mongrel, ambulance-chasing lawyers falling over themselves to sue businesses. And unions will gleefully join in. Politicians will say ‘nothing to do with us!’

It’s a dereliction of their duty to all Australians for our governments (state and federal) to walk away from their responsibilities in this area. It’s weak, insipid government which, in this crisis, makes the crisis worse!

But politicians only make laws. It’s the bureaucrats in the enforcement authorities that apply the law. The rapid spread of Covid-19 means laws cannot be changed fast enough. The enforcement authorities have the power and responsibility to make statements of legal clarity. They can do this now!

Yesterday the Fair Work Ombudsman released a statement of advice but says that businesses should “get their own legal advice”. Pardon me if I label this statement ‘bull manure’.

That’s why today we have written to all the WorkSafe authorities in every government saying they should urgently issue statements as to whether they will prosecute or not over failure of businesses and other organisations to require vaccinations.

There are three simple questions

  1. If a business requires workers to be vaccinated, will the business have satisfied its work safety obligations?
  2. If a business does not require workers to be vaccinated, will the business have breached work safety laws and risk prosecution?
  3. If a worker is not vaccinated and attends work, will the worker have breached work safety laws and risk prosecution?

Here’s our letter to the Worksafe authorities.

My sense is that they will seek to squirm out of their responsibility and stay silent, but I’d be delighted to be proven wrong.

No-one should be above the law. But politicians and bureaucrats routinely put themselves outside and beyond the law. This is bad government in normal times, made worse in a crisis. The Australian community deserves better.

The Case for the Prosecution: a “catastrophe waiting to happen”

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Today we release a major report into why the Victorian government and others must be prosecuted for breaches in the 2020 Hotel Quarantine Program.

The Coate Report into the Program made no recommendations for prosecutions. However, this is because Coate did not consider the evidence from a work safety law perspective.

Self-Employed Australia has studied the Coate Report applying Victorian OHS law provisions. Based on the evidence and specialist OHS legal advice, we conclude that the case for the prosecution of the Victorian Government and others is overwhelming.

SEA has produced a 50-page report identifying the alleged breaches, referencing those breaches to the evidence in the Coate Report and OHS law. That report has been provided to the Victorian Director of Public Prosecutions.

Coate evidence – Infection control chaos

The evidence from the Coate Report is that at the high end of the program

The Department of Health

  • was the designated ‘control agency’ yet
  • refused to take control of ensuring that correct infection control implementation was applied in the hotels

The Department of Jobs controlled the hotel, cleaning and personnel contracts yet

  • asserted that it had no expertise in infection control and could not manage infection control implementation

Coate found that the dispute between Health and Jobs created chaos through the system from top to bottom. This meant that no-one took responsibility for infection control implementation.

Coate says that this created a “catastrophe waiting to happen”, a “ disaster that tragically came to be” caused by “lack of proper leadership and oversight”.

OHS law—breaches

OHS law holds persons liable both for what they do and what they fail to do.

The failure of the Victorian government to ensure proper lines of responsibility and accountability for the correct implementation of infection control procedures constitutes alleged breaches of the OHS Act at multiple levels by the Victorian government and other people.

From this central situation of ‘chaos’ and dysfunction, additional multiple breaches are revealed—for example, the training of staff working in the hotels in infection control procedures was chaotic, contradictory, inconsistent and conducted by people who had no infection control expertise. Failure to train staff is a specific breach of the OHS Act.

Conclusion

The evidence from the Coate Report is overwhelming for alleged multiple breaches of the Victorian OHS Act by the Victorian government, departments and other people. The evidence is so strong that prosecutions must occur. SEA’s report provides the detail.

Is WorkSafe Victoria above the law?

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worksafe-questionThere has been a concerning development with the process to prosecute the Victorian Government over the 2020 Hotel Quarantine breaches. You might remember that

  • On 29 September 2020 we wrote to WorkSafe Victoria effectively requiring them to investigate for breaches of work safety laws.
  • On 29 June 2021 SEA then wrote to WorkSafe requiring them to refer their investigation to the Victorian Director of Public Prosecutions (DPP).
  • This then requires the DPP to review the investigation and make prosecution recommendations.

We’ve been waiting for 6 weeks for action.

But last Friday 5 August at 4:41pm WorkSafe emailed us saying that

  • They have not completed their investigation and
  • The DPP has written to WorkSafe saying it (WorkSafe) has not provided the DPP with the investigative materials.

See attached letters: WorkSafe to SEA and DPP to WorkSafe.

What this means. Under the law as of 29 June 2021:

  • WorkSafe must effectively supply to the DPP a copy of its investigation.
  • The DPP must review the investigative material supplied by WorkSafe.

The legislation requires WorkSafe to send the investigation materials, full stop. That is, even if the investigation is not complete, the Act effectively requires the materials to be sent.

Failure to comply with the law: WorkSafe–DPP

The failure of WorkSafe to send their investigation to the DPP means that

  • WorkSafe has failed to comply with its legal obligation.
  • The DPP is put in a position of being unable to comply with its legal obligation (to review the investigation material) because of the failures of WorkSafe.

The Rule of Law—Comment

For the rule of law to have any meaning in society it is essential that, at the highest levels of government, law authorities comply with the law. They cannot choose when to comply with the law and when not to comply. To do so threatens the rule of law in society. That WorkSafe is failing to comply with its legal obligations raises huge concerns about WorkSafe. That WorkSafe has compromised the Director of Public Prosecutions by putting the DPP in a situation where it is failing in its legal obligations is very worrying.

Here’s the Relevant section of the Act s131:

    • (3) If the Authority advises the person that a prosecution will not be brought, or that it has not brought a prosecution within 9 months after receiving the request, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
    • (4) The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.

We’re not sitting back. We’ll have more news tomorrow.

Is WorkSafe Victoria grossly incompetent or is something else going on?

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801-deathsToday, 29 June 2021, Victorian WorkSafe finally replied to us as to whether it is prosecuting the Victorian Government over the hotel quarantine deaths scandal.

Its reply? ‘We need more time!’

Here’s its letter.

It’s a shocker! Talk about bureaucratic ‘we’re doing a good job but it’s complex’ spin!

Let’s look at the facts:

  • It’s now 15 months since the hotel quarantine (deaths) program started.
  • It’s some 12 months since WorkSafe claim it started investigating.
  • It’s 9 months since we wrote to WorkSafe triggering provisions in the Work Safety Act requiring it to investigate. (Here’s our September 2020 ‘trigger’ letter.)

We’re dealing with the largest mass deaths in Victoria’s history from one event. WorkSafe’s performance on this displays gross incompetence at minimum. Or is this a cover-up? Is WorkSafe manoeuvring to protect people?

Consider this! WorkSafe has admitted that a prosecution must be brought within 2 years. Therefore if WorkSafe delays, can it claim the 2 years is up in March next year? Then no prosecution occurs? Can WorkSafe kill off justice by simply doing nothing?

Why did it take WorkSafe 3–4 months even to start an investigation? Incompetence or something else?

We’re not waiting. WorkSafe was required at law to reply to us today. It seems to do only what it is forced to do.

We’ve replied to WorkSafe today, triggering additional requirements under the Work Safety laws for WorkSafe to refer its investigation to the Director of Public Prosecutions (DPP).
Here’s our letter.

The DPP then must review WorkSafe’s investigation files and recommend whether WorkSafe prosecute. Now will the DPP step up to the job? The clock is ticking.

This is the most critical test that the work safety and justice system in Victoria has ever faced. Are these authorities putting some people above the law? No-one should be above the law!

WorkSafe is failing this test. What will the DPP do?

This is about justice for the 801 people who died, their families, friends and the people of Victoria. It’s about the integrity of the work safety and justice system in Victoria.

We’re not going to let go. We’re not going to be conned by the tripe, spin and ‘nothing to see here’ approach of WorkSafe Victoria. This campaign has only just begun!

Prosecution of the Victorian government – Update

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With the fourth Covid lockdown in Victoria we’re being consistently asked where we are at with our campaign to prosecute the Victorian government over the quarantine OHS breaches.

Quite simply we are currently in a holding pattern. WorkSafe Victoria must reply to our original 29 September 2020 letter by 29 June this year. That’s WorkSafe’s deadline.

WorkSafe must have initiated prosecutions by 29 June or explain to us in detail why not. They must do that on each of the 142 breaches of the Act we have alleged. If WorkSafe do not prosecute, we can and will trigger steps requiring referral to the Director of Public Prosecutions. This is explained in our letter to WorkSafe of today.

In addition, we’ve done an analysis of why Victoria is in trouble.

It’s quite startling to realise that, even before this lockdown, Victorians have suffered some 160 days in lockdown over about the last 450 days. That’s 35 per cent of days spent in lockdown since March last year. 801 of the 910 tragic Covid deaths across Australia (88 per cent) have been in Victoria.

We say that the sad fact is that Victoria has become a corrupt state where the normal processes of a professional public service have been rorted. Melbourne, in particular, is run by a new ‘Establishment’.

It’s a corrupt money-making rort where corrupt tendering processes have infected even the Health Department. What was witnessed in the hotel quarantine program was the neutering of professional public servants. This resulted in a near-complete breakdown in control systems, accountability and transparency.

On current evidence, the mess being made of Covid management in Victoria is set to continue. At the core of the reason for this is the refusal of the Victorian government to confront its problems. The Victorian WorkSafe Authority has the power to act. Prosecutions will force change. That’s why we are continuing and will continue with our campaign

Our longer analysis is here.

More Victorian quarantine mess. The government puts people at risk. Where is WorkSafe?

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If you’ve been following the Victorian Hotel quarantine ‘mess’, you’ll be aware that we started our adverts on top rating Victorian radio station 3AW on 21 April. Those adverts finish this coming week. They simply call for WorkSafe Victoria to do its job and prosecute!

Here’s the advert:

Play sound file

First. Thanks to everyone who’s been contributing to keep our campaign going. Every $ counts.

What we couldn’t predict when we started the adverts is the explosion of more ‘scandals’ about the continuing failures of the Victorian program. Media across the board have been reporting gob-smacking stories. Here’s just a taste of what’s been revealed in the last two weeks:

  • Needle sharing: Quarantine residents had to undertake blood tests. Unknown to them, the administrative procedures were so bad that needles were shared between residents. The serious infection risk is scary. The report comes from Safe Care Victoria, a Victorian government body.
  • Head Quarantine Control Executive breached his own procedures. The Australian exposed ‘hidden’ documents where infection control breaches have/are occurring in the current Victorian program. This includes the head of Infection control refusing to comply with his own orders when visiting hotels. He’s been ‘stood down’ with the government saying the breaches were ‘only minor.’ Here’s the ABC report on the breaches.
  • Long list of breaches. Both The Australian and The Age reveal leaked documents that reported ‘months of bungles and mismanagement’ in the quarantine system detailing ‘sloppy practices, untrained staff and poor hygiene.’

The Victorian government is now into its fourth attempt to run hotel quarantine. The first and second attempts led to 801 deaths. The third attempt led to an outbreak and lockdown. This fourth attempt is (again) proving to be riddled with incompetence at every level.

The point that we make and the reason for our campaign is that WorkSafe Victoria is the only authority with the power to do something NOW. It has almost unrestrained investigative power and ability to prosecute quickly.

Prosecution is essential because it’s the only thing that will force change to the management of the quarantine health system. This is a government and health system in crisis and WorkSafe can do something about it.

While WorkSafe sits back watching the unfolding management mess, all Victorians and Australians remain at high risk due to the Victorian government’s failure.

We’re working on more plans with our campaign. Campaign details are here.

Major radio media campaign starts. Victorian OHS Quarantine Prosecution

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Tuesday, April 20, 2021

We’ve had fantastic support from lots of people in our campaign to push Victoria’s WorkSafe to investigate/prosecute the Victorian government over the failed 2020 Covid quarantine program. Remember, no-one should be above the law. 801 deaths cannot be ignored.

As a key part of that campaign, tomorrow, Wednesday 21 April, we launch a serious media campaign to push WorkSafe to do their job.

Tomorrow we begin a three-week breakfast radio advertising campaign on Melbourne’s top talk-back radio station, 3AW.
Here’s the 30-second advert:

Play sound file

To update you on the situation with WorkSafe:

  • They had to get back to us by end of March. They have replied ‘we’re still investigating!’
  • Now the deadline is end of June. By then they must formally inform us in detail whether WorkSafe is prosecuting on each of the 142 breaches we have alleged.

Full updates on the facts, events and WorkSafe correspondence is here.

We must maximise the public pressure on WorkSafe to do their job and do it properly. We have plans for considerable ongoing major media activity. If you’d like to help, you can contribute $s here. If you have already contributed, our thanks.

Recently, respected TV journalist George Donikian interviewed Ken Phillips on who we (Self-Employed Australia) are and why we are running the OHS prosecution campaign. Here’s the interview:


We’ve also produced a four-minute video on why Covid was not unprecedented. The Victorian government will try, we believe, to claim ‘unprecedented’ as a defence. But the facts and evidence is that Covid was fully expected and predicted. Watch the video here:

Soon we’ll do another of our Zoom updates. We’ll let you know when.

Be afraid: Victoria’s 4th attempt at quarantine

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Be afraid. Last Thursday (8 April) the Victorian government restarted its Covid hotel quarantine program.

This is the fourth attempt. The first two attempts from March 2020 resulted in Covid being released into the community, months of lockdown and 801 deaths.

The third quarantine program attempt started on 7 December 2020. On that day Self-Employed Australia warned of problems. Our information was that basic, simple procedures were not in place and that quarantine ‘HQ’ was dysfunctional. By 12 February 2021 Victoria was back into lockdown.

Procedure breaches were simple. For example, staff who had close contact with quarantined travellers and who were supposed to work in isolated rooms were called into mass staff meetings. Just plain dumb.

Even if Covid-19 was ‘unprecedented’ (although on basic facts it was fully expected and known), the health and safety breaches were overwhelming of basic, common-sense things.

Let’s hope this fourth attempt will be more successful. Perhaps it might be better. Our information is that, sometime around early March 2021, WorkSafe inspectors ‘marched’ into Quarantine HQ asking specific questions. “Show us your policy on this?” “Where are the instructions for that?” and so on. This panicked bureaucrats who couldn’t supply immediate answers.

Since then, we believe that WorkSafe has essentially taken control oversight of the quarantine program. Take one example. All men working in quarantine must be clean-shaven. This is to ensure a proper seal when wearing face PPE.

Even with WorkSafe oversight there are big procedural gaps.

Some six weeks or so ago, when vaccination of quarantine staff started, the instruction was that vaccination was voluntary. Staff planning happened accordingly. But now vaccination of all quarantine staff is compulsory. It will take several weeks to get additional potential staff vaccinated. This is basic dysfunctional management.

But there’s more! Covid outbreaks from quarantine have a set pattern. The first line of infection is from infected travellers to quarantine staff. Then from quarantine to, most commonly, the staffs’ immediate family or house mates.

New South Wales has a program of vaccinating quarantine staff and the staffs’ immediate family/house contacts. That is, they’re vaccinating to create two lines of first-level defence. And Victoria? Nah! Quarantine staff are being vaccinated but there’s no reported intention to vaccinate quarantine staff family/house contacts.

Again, what’s being witnessed in Victoria is dysfunctional management. It’s not Covid itself that is the immediate problem. It’s the management of the quarantine system that is the threat to the health and safety of all Victorians. This is why we insist that WorkSafe must prosecute the Victorian government over the 801 deaths.

If prosecutions don’t occur, the full extent of the dangerous dysfunctionality will never be revealed and correction and improvement of the system will not occur. Victorians remain at risk!

Victorian Government and Premier: Indictable criminal offences investigation

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You’ll be aware of our requests to WorkSafe Victoria for prosecutions to be brought against the Victorian government and several individuals over the Hotel Quarantine Program that resulted in alleged 801 deaths from Covid-19 last year. Our Campaign summary and key details are here.

We have had a major development that we can report to you.

Late last week (4 March) we received a letter from WorkSafe Victoria confirming again that WorkSafe is investigating breaches of work health and safety laws related to the Hotel Quarantine Program. This is significant. Here are the core facts.

The WorkSafe letter says:

I refer to your request for WorkSafe Victoria to bring prosecutions against various individuals and entities associated with the Covid-19 Hotel Quarantine Program.

Please be advised that Worksafe’s investigation is still ongoing…

This is the clearest confirmation from WorkSafe of an investigation. Further it confirms that the investigation is occurring because of our correspondence to WorkSafe last year. Our key letter of 29 September 2020 uses section 131 of the Occupational Health and Safety Act. That Section requires WorkSafe to investigate alleged work safety breaches when requested.

In our letter of 29 September we identified 142 breaches of the work safety laws.

All 142 offences we identified are indictable criminal offences.

We named 20 individuals and 6 entities as requiring investigation.

This includes:

  • The Victorian Premier and 3 Ministers;
  • The Chief Health Officer and 15 other heads of departments/agencies;
  • The State of Victoria and 4 departments/agencies;
  • Victorian Trades Hall Council.

The full list of individuals and entities is in our correspondence of 29 Sept here.

The significance of the WorkSafe letter of 4 March is that it confirms that the named individuals and entities are being investigated for indictable criminal offences under the Occupational Health and Safety Act.

The processes and procedures that are required under the Act mean that WorkSafe:

  • must complete its investigation in a timely manner;
  • must investigate each of the 142 alleged breaches against each of the 20 individuals and 6 entities;
  • must write to us informing us of their decision to prosecute or not on each of the 142 alleged breaches.

Where WorkSafe decides not to prosecute or it has not brought a prosecution by late June (nine months from the date of our September 2020 letter) the matter/s must be referred to the Director of Public Prosecutions on our request.

And

  • the Director of Public Prosecutions must consider the matter/s and advise WorkSafe whether a prosecution should be bought. We must receive a copy of this advice and if WorkSafe declines to follow the DPP’s advice, it must provide us with written advice for its decision.

For your easy reference here are the four key documents:

• Section 131
• Relevant indictable criminal offences under the Occupational Health and Safety Act
• Our letter to WorkSafe 29 September 2020
• WorkSafe letter to us 4 March 2021

We shall continue to pursue this vital issue. It is important that in a just and fair society where the rule of law applies, that no-one is above the law, including government. 801 deaths cannot be ignored or forgotten and must be investigated to ensure that all Victorians and Australians are kept safe.

We shall keep you informed.

Would you consider the Victorian Premier the most dangerous person in Australia?

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The most recent Covid lockdown of Victorians resulting from hotel quarantine failures must lead many to believe that the incumbent Victorian government is a danger to the health and safety of Victorians, and Australians.

The first lockdown—lasting 112 days in 2020 and costing 801 lives—resulted directly from disastrously incompetent mismanagement of hotel quarantine by the government. The Victorian government has admitted this.

But the evidence from this latest lockdown is that the government’s failures continue. The spread of Covid out of the Holiday Inn Airport Hotel is a direct result of the repetition of the same mismanagement evidenced in the first lockdown. This has occurred even though the government has radically reorganised the bureaucratic structures for hotel quarantine management.

It is this bureaucratic mismanagement that is the problem. It is a failure of governance, common-sense management and transparency. It is of such a scale as to put the health, safety, lives and livelihoods of Victorians and Australians at major risk.

Bureaucracy ‘reformed’

The evidence of the latest outbreak is as follows.

Following the 801 deaths resulting directly from the first hotel quarantine failures, the then Department of Health and Human Services (DHHS) has been disbanded. It was replaced in late 2020 with three new bureaucracies responsible for quarantine. They effectively took over on 1 February.

Most functions of the hotel quarantine program are contracted out to various businesses providing food, cleaning, supplies and staff under labour hire.

The government maintains control over every aspect of the operations. This includes daily control of the numbers, type and qualifications of staff, PPE use, movement of persons through the hotels and so on. The government exercises all decision-making over testing, tracing, isolation and so on. All control and decisions on site are subject to direct instructions from the three bureaucracies.

The staff operating the quarantine in the hotels—the ones in direct contact with travellers—effectively have little decision-making authority. The decision-making lines are remote from the hotels and disjointed. The Holiday Inn was controlled directly through the processes described above.

Sequence of events

The uncontrolled outbreak at the hotel followed the following publicly identified timeline in February.

Wednesday 3rd: A family of three arrived from overseas. Someone in the family had Covid.

Sunday 7th: An ‘authorised officer’ at the hotel tested positive. Other workers subsequently tested positive. Household members of the staff were not contacted or told to isolate.

Tuesday 9th: Household contacts were finally contacted. But one of the household members had already worked at airport terminal, possibly exposing 3,500 travellers. Another staff member tested positive.

Thursday 11th: Another household member tested positive. The government reported 13 positive cases, including some external to the hotel.

Friday 12th: Lockdown announced.

On these basic facts, the failure to contact people for up to three days who were known to be in close contact with the positive case on Sunday is the primary cause of the current outbreak. That is, management failure by the three controlling bureaucracies is the cause.

But we have more information. Our sources tell us the following.

There were regular delays of three days before hotel workers who had close contact with Covid-positive travellers were notified to quarantine.

When the bureaucrats were notified of possible staff contacts, instructions were not immediately forthcoming and only given some hours later.

There is no comprehensive written procedures manual to guide staff at quarantine hotels. Procedures are disjointed. Infection scenario procedures are inadequate or non-existent.

What training of staff there is occurs onsite and does not include written procedures manuals. The most ‘training’ onsite staff receive is a three-minute video.

There also appear to be clear breaches of quarantine protocols. Even though workers were under instructions to work in isolated and defined areas to avoid risk of transmission between workers, at least one ‘group meeting’ of all staff was undertaken in which staff were required to attend.

These events all point to major failure in basic management processes, processes that are just common sense and should not fail.

Still no quarantine plan

In a statement to the Board of Inquiry into the Covid Hotel Quarantine Program, Kym Lee-Anne Peake, then Secretary Victorian Department of Health and Human Services stated that “As at 26 March 2020, there were no plans in place for a mandatory hotel quarantine program for returned travellers.”

It would appear from observations of the current hotel quarantine program, that no written comprehensive plan or procedures manual for the management of quarantine currently exists. If one does exist, it is certainly not public. We understand that none of the quarantine workers at the airport hotel had sighted, been made aware of, or been trained in compliance with an operations manual.

Not following Coate recommendations

Recommendation 22 from the Coate Report (late 2020) states:

Accepting the need to bring in expertise, every effort must be made to ensure that all personnel working at the facility are not working across multiple quarantine sites and not working in other forms of employment.

Contrary to this recommendation, quarantine staff are working at multiple locations and in other forms of employment.

Government dysfunctionality continues—restructuring mess

It is understood that the old health department effectively ceased operating on 1 February 2021. People from the old DHHS who were overseeing quarantine were moved to other jobs. New people came in who had no quarantine background experience or working knowledge of the program and its current status. It would appear that this led to defective or critically slow decision-making, or to none at all.

For example: staff at the Holiday Inn requested instructions on whether to attend work as they had been in close contact with Covid-positive travellers. The bureaucrats responded that they didn’t know and had to wait for a group meeting. When instruction came not to attend work, it was too late. The workers had already attended work as rostered.

In other words, the bureaucracy was incapable of responding to queries from the hotel within the timelines that are necessary when running a 24/7 operation. The failures were/are at the bureaucratic level.

Conclusion—The government is the problem

The current lockdown has occurred because the quarantine management of the Holiday Inn by the government was demonstrably slow to respond to known infections. Close contacts, including staff, were not notified for up to three days or more and not given instructions as to what to do. Consequently, close contacts who were unknowingly Covid-positive went about their activities in the community unknowingly spreading Covid.

This high risk was is well known by the government. The bad management of the hotel quarantine program in 2020 proved the horrendous consequence of such bad management. But the Victorian government has clearly not fully and properly learned the lesson or fully and properly implemented proper processes.

In this respect the government in its current form and leadership poses a major risk to the health and safety of the people.