Self Employed Australia

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NotAboveTheLaw

Justice means prosecuting individuals – Where is WorkSafe?

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Worksafe-questionIt’s a couple of weeks since we updated you on the Not Above The Law campaign over the 801 Victorian Hotel Quarantine deaths in 2020. Here’s some info.

Prosecution of Health

You may likely be aware that, on Wednesday 29 September, WorkSafe announced that it is prosecuting the Department of Health (but not responsible individuals). The announcement caused a storm of media coverage.

29 September was one year to the day that we sent our 131 application; the legal trigger that required WorkSafe to investigate with a view to prosecuting. The prosecution totally validates our campaign, demonstrating the correctness of both the issue and our pressure activity. The major media channels now view our campaign as significantly serious.

Magistrate hearing: Last Friday 22 October was the first Court hearing, a procedural matter where the date was set for the start of the serious legal process (10 March 2022).

Plead guilty? There is speculation that Health may plead guilty and pay a ‘round robin’ fine – that is, the government fines itself which means (effectively) no fine. The media have been on to this with commentary viewing this as a ‘con’.

Next stage – Our campaign focus – prosecute individuals

Our campaign is now focused on pushing heavily for prosecution of the responsible individuals – that is, the Premier, Minister and government officials. This doesn’t mean that we say they are guilty, but rather that the evidence requires prosecution. I explained this in a 3AW radio interview (6 minutes) on 22 October:

TV advert #2 (30 seconds): Following the Health prosecution announcement, we have relaunched our TV advert on social media. See the refocused ad here. This is being supported by a hard-hitting on-line social media campaign (on Facebook & Google).

Radio adverts (30 seconds): A new radio advert is running this week on Melbourne 3AW, 7am to 10am with several repeats in each time slot:

 NATL website: A dedicated Not Above The Law website was launched mid-September which has had strong traffic. Here’s the site: https://notabovethelaw.com.au/

Legal campaign

To date we’ve had a big impact without needing court action. There have been 38 pieces of correspondence between Self-Employed Australia and WorkSafe over the last year. In addition, during September we wrote to the Attorney-General, Shadow Attorney-General, WorkSafe Minister, Shadow WorkSafe Minister, Ombudsman and the Solicitor-General. There has been careful legal guidance at every step. See information here.

We anticipate news about next steps in the near future.

What does the Covid modelling say?

You might be interested in some tracking of the predictions about the spread of Covid-19 since the last Victorian heavy lockdown started. The Table below shows what the Burnet Institute predicted would be the Covid impact during the heavy lockdown.

They said that (see page 7, Table 4, of their document)

  • The number of infections would peak at 4,543 per day.
    The actual peak so far is 2,297.
  • Hospital demand would peak at 3,150 per day.
    The actual peak so far is 851.
  • ICU demand would peak at 706 per day.
    The actual peak so far is 163.

Ummmm?

Burnet-table

WorkSafe concedes a ‘bit’. But not enough. Much more work to be done

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long-journeyIf you’ve been following our Not Above the Law campaign, you’ll likely be aware of a BIG development yesterday. Early in the afternoon WorkSafe Victoria announced that it is prosecuting the Victorian Department of Health over the hotel quarantine disaster of 2020.

This triggered a media storm with coverage across the nation. After I went into a deep-dive analysis with our lawyers, I then spent all afternoon doing media interviews – ABC (radio, TV, print), SkyNews, Herald Sun, 3AW radio and others. Thanks to everyone for the huge number of emails and texts. Pardon me for not responding. I thought it best to do so now.

Here is some background information:

Ombudsman: Yesterday morning we lodged our detailed complaint to the Victorian Ombudsman about WorkSafe not complying with the law by failing to send its investigations to the Director of Public Prosecutions. The WorkSafe announcement yesterday afternoon does not change that complaint one bit. WorkSafe still must provide its investigation materials to the DPP on all the parties that they are not prosecuting. WorkSafe continues to fail to apply the law on this.

Thanks to everyone who lodged complaints with the Ombudsman over the last week. It’s been huge. If you have not done so, please still lodge a complaint.

Channel 9 Advert: I am advised that, as of late yesterday, Channel 9 has decided to run our advert. Again, thanks to everyone who lodged complaints with Channel 9. It’s also been huge. But I’ll be cautious. I won’t say it’s a definite until the first advert airs. That should be very soon if arrangements fall into place.

WorkSafe Letter: WorkSafe wrote to us late yesterday afternoon essentially saying, ‘the matter is now closed’. We wrote back saying ‘no it’s not!’

Here’s a key issue:

Criminal law: Work safety breaches are indictable criminal offences. An ‘organisation’ cannot commit a criminal act. Only people do. A gun does not commit murder. The person who pulled the trigger commits murder. Common sense would suggest that the Department of Health cannot not commit criminal OHS breaches. The people who control, direct and run the Department commit the offences.

Therefore this issue is not closed by WorkSafe’s prosecuting the Health Department. We are continuing with our campaign. We are not stopping. We are just warming up.

How will we succeed?  I keep being asked, ‘how will we get WorkSafe to undertake prosecution of individuals’? My reply is ‘by doing what we have been doing’. This is a people movement. We must, and will keep delivering analysis and messaging about the need for the prosecution of Departments and individuals. We have confidence in the voice of the people!

And you, our SEA members, are at the core of this. The campaign has taken us this far in getting yesterday’s breakthrough. But it’s only happened because of your support — people contributing $5 and up, putting in time and effort (contacting the Ombudsman, etc) and more.

Our huge thanks. We should all be pleased. But there’s still a lot more to be done!

WorkSafe Victoria raises the ‘double standards’ flag. Kowtows to union demands

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red-bookIn a telling development yesterday, reports from an industry trade magazine describe how WorkSafe Victoria is investigating a business over the death of a worker from Covid-19.  The WorkSafe move comes after the Australian Services Union “…called for an investigation…”

The ASU said that it will be “…supporting a WorkSafe investigation…” and “… will hold all employers accountable…”

There’s a telling tale here of what could be called the ‘Victorian comrade racket’. The union comrades demand. The ‘justice’ institutions jump! It’s selective! Businesses (of any size) are taken to be ‘bad’ and must be punished. But when it comes to holding government itself responsible, under exactly the same laws, it’s all very ‘complex’ and hard!

It’s now 18 months since the Victorian hotel quarantine disaster first started (March 2020). WorkSafe took up to 4 months before it says it started investigating the Victorian government for OHS breaches. It’s nearly 12 months since we wrote to WorkSafe requiring it to investigate. And it’s now 11 weeks since WorkSafe was required under its own statute obligations to give to the Director of Public Prosecutions its investigation material into the hotel quarantine disaster. Delay. Delay. Delay! Where is justice?

Here’s what the Victorian Occupational Health and Safety Act says:

Section 131 (3):  If the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.

In this case Self-Employed Australia is ‘the person’. WorkSafe has said it is continuing to investigate. That is, it is not prosecuting. Under the plain reading of the Act, WorkSafe “…must refer the matter to the Director of Public Prosecutions if the person requests (in writing)…” We have made that written request. On a common sense reading of the Act, WorkSafe has not done what it is legally required to do for 11 weeks.

We find it deeply concerning that WorkSafe is ignoring what seems to us to be its legal obligation. But we are active in spite of this delay, delay, delay.

There have been 29 pieces of correspondence between ourselves and WorkSafe on this issue over the last 12 months.
We have run radio and social media ads asking WorkSafe to comply with its obligations.
We have just relaunched our dedicated Not Above The Law website. It gives a good overview of the campaign and details the 142 charges we alleged. Check it out.
Our legal team is in deep discussions and preparation.
More major media is being prepared.

Our campaign for justice for 801 deaths will not stop.

We give considerable detail on our efforts here including our 20,000-word analysis The Case For The Prosecution drawn from the Coate Inquiry evidence.

And thanks to the huge support from people that keeps coming in. It is  most encouraging when people contribute even $10 as a member to the campaign. It’s this support (lots of it) that keeps us going.

NSW gives green light for business-mandated vaccinations. It’s ‘Safe’

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vaccination-tickYou might recall that on 13 August we wrote to all work safety authorities asking them to make clear statements as to where they stood on business-mandated vaccinations for staff. Here’s our letter.

It’s essential that authorities with the power to prosecute business under work safety laws tell business people how to comply with the law.

Three days ago (1 September) we received a clear, short reply from SafeWork NSW. The key sentence reads:

“SafeWork NSW considers vaccination a high order risk control measure against disease.”  Here’s the SafeWork NSW letter.

We have checked with our lawyers.

SafeWork NSW is saying that if a business/organisation does not mandate Covid vaccinations, the business is at risk of breaching OHS (work safety) laws. That is, the business would be failing to use a high order health strategy to provide workers (and others) with a safe workplace.

We congratulate SafeWork NSW for its statement. People will legitimately have different views on mandated vaccinations. Our point is that the work safety authorities have an obligation—both moral and in terms of governance—not to leave business as the meat in the sandwich over statute interpretation. In the mandated vaccination debate, we say that OHS law is the top priority over other laws such as industrial relations. Every business has a legal OHS obligation not to put people at risk. SafeWork NSW has made a clear statement on that obligation.

This is highly important for small business people. Big business can use armies of lawyers to advise them. Small business people only have themselves. SafeWork NSW has done the right thing by the people of NSW.

The NSW letter also then lays out a checklist for businesses to assess if workers don’t have to be vaccinated. This includes (1) eligibility for the vaccine, (2) personal health, (3) medical history, (4) type of work, (5) the risk of exposure, and (6) the availability of alternative control measures.

In relation to unfair dismissal, it would seem probable that the NSW statement should arguably be a high order defence against an unfair dismissal action. It will be interesting to see how ambulance-chasing lawyers and unfair dismissal tribunals respond to this.

Tasmania is the only other state to reply to our letter of 13 August. It put the responsibility back on to the business. The other states have been silent. Yesterday we wrote to all the other state authorities with a copy of the NSW letter. We have asked the other states if they agree with NSW. All state work safety authorities have a responsibility to the community to make their position on mandated vaccinations totally clear.

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 Covid lockdown (again). The evidence. Victorian Government failures. Prosecution

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With Victoria back into another hard lockdown, we are following through on our campaign to have the Victorian government prosecuted for breaches of health and safety laws.

Today we release our YouTube assessment of “Was Covid-19 unprecedented?” The Victorian government uses this excuse to say that it was/is not responsible for over 800 deaths.

We present the evidence that a flu pandemic was expected and that it was well known that Covid-19 was coming. Click on the image to view the 4-minute video.

You can read the full details with links to source documents here.

We are finalizing an assessment of the causes of the latest Victorian hotel quarantine failure and will publish this shortly. This will support an additional letter we will be sending to WorkSafe Victoria. We will be advising them of the need to prosecute the Victorian government for breaches of health and safety laws over this latest quarantine failure. The evidence requires prosecution. More information soon.

800 deaths – The facts are clear. The Vic government must be prosecuted

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It would be dangerous to forget or ignore that 800 people died due to the Victorian government’s hotel quarantine disaster. We cannot simply ‘move on’ and pretend that 800 people did not die. That’s dangerous. That’s unsafe.

That’s why today we’re launching the next phase of our campaign to push for the prosecution of the Victorian government under work safety laws.

We write to WorkSafe
Here’s our letter, sent today, to the Victorian WorkSafe Authority, the prosecuting body. We provide them evidence that hotel quarantine plans should have been in place when they were not.

Hong Kong had clear plans that could have been used.

We remind WorkSafe of evidence from one officer who said

“Each outbreak was treated like a secret and nothing seemed to change…”

And a doctor who warned of bad procedures saying

“This is placing individuals at risk”

The pandemic was NOT unprecedented
In separate facts we explain why the Covid pandemic was not unprecedented and was fully expected and planned for, BUT the Victorian government forgot(?) to do a hotel quarantine plan!

And here we explain how the work safety laws apply.

Into and during 2021
This next phase of our campaign will continue through all of 2021. This is just the start. We have a research and legal team. We are preparing more evidence of why prosecution must occur. We will make this public and deliver it to WorkSafe.

Join/support our campaign. You can contribute $s here if you can.

Register your details here for information and updates.

Bad things happen if good people do nothing!

Scary! Victoria’s second attempt at hotel quarantine starts today. Will it be safe????

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Today, Monday 7 December, is a rather scary day for Victorians and all Australians. Today is the day that the Victorian government restarts the hotel quarantine program for overseas travellers. The big question is: How safe will this quarantine program be?

The three hotels to open immediately include the Park Royal Airport, Transit Sunshine and Airport T2. Another six hotels are planned to be opened over the next two weeks leading into Christmas. In addition, The Alfred is running two ‘MediHotels, the Novotel Southwharf for complex care and Holiday Inn Flinders Lane for Covid-positive people. One hundred and sixty travellers are expected to arrive daily.

We can only hope that, in restarting, the government has detailed plans for the nitty-gritty of hotel quarantine management. It would be good to have such detailed plans publicly released. Why? Because without proper plans, Victorians run a grave risk of another Covid ‘fire’ outbreak.

Think back eight months.

The first Victorian Covid experience was as if a large factory in the centre of Melbourne exploded, igniting a fire that raged for months. While it was burning, the factory spewed toxic chemicals into the atmosphere poisoning tens of thousands and killing hundreds of people. Millions had to be forced into home isolation to avoid the poisonous clouds.

Now, the very managers (the Andrews government) responsible for the (Covid) factory fire are still in charge and reopening the factory. Should this make everyone nervous? You betcha! Very nervous!

What’s gobsmacking is that when the first Victorian hotel quarantine program started on 27 March there was no ‘plan’ for how to manage the program.

There was no ‘plan’ about how to modify hotels, not designed to handle medical situations, to cope with this highly infectious Covid flu pandemic. There was no ‘plan’ to train staff. No ‘plan’ to provide PPE. No ‘plan’ for medical personnel support. No ‘plan’ to manage travellers suffering mental, or other health problems, or drug addictions. No ‘plan’ for the supply of fresh food or clean clothing. No ‘plan’ for clinical software provision to track people’s health. And no ‘plan’ about what do with people who tested Covid-positive.

This ‘no plan’ was stated under oath to the Coate Inquiry by the then Secretary of the Victorian Department of Health.

The excuse from the Andrews government for its ‘no plan’ policy is that the Covid pandemic was ‘unprecedented’! Unfortunately for the Premier, his Cabinet, responsible departments and department bosses, ‘unprecedented’ is a lie proven as such by the facts.

A flu pandemic was expected. The Andrews government had an international legal obligation to be prepared.

As early as 2005, the World Health Organisation issued a global alert that a flu pandemic was inevitable and that countries had to be prepared. The last great flu pandemics were in 1918, 1957 and 1968. The timing and type of the next pandemic was the unknown.

In 2006 the Australian government developed detailed plans for pandemic management in conjunction with all the states. This included the October 2006 Exercise Cumpston involving all Australian governments testing the plans. The WHO pandemic alert was further upgraded following the 2009 H1N1 flu pandemic that was comparatively contained.

In 2014 the Victorian government released its flu pandemic plans aligned with the national plans. Each state government has the ‘on the ground’ management authority and responsibility for pandemic management. That responsibility is legally binding on each government under WHO-administered health regulations.

The Covid pandemic was declared by the WHO on 30 January 2020. On 18 February the Australian government released its Covid-specific pandemic plan. Each state in turn updated its plans and preparations. The Victorian government released its Covid plan on 10 March.

That is, the pandemic was predicted, expected and response plans highly developed. The Victorian Chief Health Officer stated in Parliamentary evidence that several pandemic simulations had been conducted in the 12 months prior to Covid.

The Andrews government did have some plans. They had plans for the transiting of travellers at Melbourne airport, placing these people onto buses and then delivering them to hotels. But there were no plans for what to do then.

Travellers were ‘dumped’ into chaos. The Victorian Hotel quarantine program was being managed, or rather mismanaged, on the run. That’s the evidence and admissions by the Andrews government to the Coate Inquiry. Gobsmacking but true.

Here now is attempt number two. The same people, the Andrews government, are having another go. Do they have a ‘plan’ this time for the nitty-gritty of running the hotel quarantine program? Goodness let’s hope so. And let’s hope it’s an effective plan!