Self Employed Australia

"Everyone needs an Advocate"

“Everyone needs an Advocate”

Quarantine

Justice and Not Above the Law: Class action to bankrupt Victoria?

by

not-above-the-lawIt can take a long time for justice and the rule of law to hold people accountable (particularly powerful people), where such accountability is proven to be warranted.

We made our attempt in Victoria to require WorkSafe to hold people (powerful people) accountable for the failures of the 2020 Hotel Quarantine disaster which resulted in 801 deaths. The Victorian Supreme Court ‘knocked us out’ on a technicality which meant that the Court did not have to rule on WorkSafe’s refusal to do its job!

Discernable recently interviewed SEA’s Ken Phillips (Executive Director) and Nick Karamouzis (Chair) where we gave a full report (26min).

But this issue is not over—not by the (proverbial) long shot! A class action for damages is proceeding in the Victorian Supreme Court with considerable success so far.

Class action—Victoria

The class action by the international legal firm, Quinn Emanuel, is suing for damages inflicted on the thousands of businesses forced into lockdown during 2020. As with SEA’s application,  the state government attempted to have the application knocked out on technical grounds. But the Full Court of the Supreme Court has dismissed the government’s attempt. The action now progresses. Speculation is that a successful ruling could result in a payout to affected businesses in the many billions of dollars, even enough to bankrupt Victoria.

You can follow the class action here.

Michigan class action took nine years

It’s instructive to note the successful class action in the US state of Michigan where the ex-Governor and eight other government officials faced criminal charges, including manslaughter. This happened after a government-induced health crisis in the city of Flint in 2014. The crisis resulted in twelve deaths and some 90 cases of Legionnaires’ disease.

Just this month the Michigan Supreme Court awarded $US600 million ($A900 million) to finalise the class action for damages—a damages situation vastly smaller than that which occurred in the Victorian lockdown. But note that it took nine years to reach final settlement.

We’ll continue to follow the Victorian class action and keep you updated.

Outcome: Victorian Supreme Court Action

by

supreme-courtThis is a special email to update you on the outcome of our mandamus application to the Victorian Supreme Court over WorkSafe Victoria’s failure to prosecute individuals and entities over the 2020 Hotel Quarantine disaster.

On 2 December 2022, we informed you of the Court’s ruling (delivered that day) which declared that we had not lodged our application ‘on time’. That is, our application was dismissed on a technicality. We disagree with and reject this decision.

For fuller details on the case:

  • This link is to the ruling of 2 December. We’ve highlighted some sections.
  • This link gives an overview of the 3-year campaign, plus some commentary on the ruling.
  • We have made available a full commentary on the ruling to SEA members.

Here’s a summary

Supreme Court rules require that lodgement needs to occur within 60 days of when the named government department failed to do what that department is required to do by law. The issue was: what was that date?

WorkSafe refused to answer whether they had investigated those named entities as required.  But the ruling states that, as of 29 September 2021, we should have inferred, concluded or assumed that WorkSafe had investigated all the 26 entities/individuals that we named (the Victorian Premier, etc). (Our application was lodged on 14 February 2022.)

We say that that conclusion is wrong and that we did not and could not have known. The Court’s ruling was based on interpreting drawn-out correspondence spanning many months about who said what to whom and what we should have inferred by what was said/written.

The ruling then does two curious things in our view.

  1. It spends considerable time rebutting many of our published allegations/assessments we made as to why individuals/entities should be prosecuted. Why bother to do that when the dismissal of our application on technical grounds was all that was needed? The ruling reads as a defence of the government individuals and entities we named.
  2. The ruling then says that if the court allow SEA’s application that this would put the individuals we named under ‘stress’ and this should not occur.

It seems that the Court is saying that an individual should not be prosecuted for alleged offences if the prosecution were to cause the individual ‘stress’. We ask: Would this principle apply to an accused murderer? That is, should an accused not be prosecuted because they would feel ‘stressed’? We find this a disturbing concept. We will have more to say on this issue.

SEA is committed to continuing our ‘Not Above the Law’ campaign, along with our other campaigns on public policy issues affecting self-employed people and more.

I’m available to chat should you want more information or explanation.

Ken Phillips
Executive Director, Self-Employed Australia
0412 393 692

 

Decision Supreme Court Victoria – Hotel Quarantine

by

not-above-the-lawAt 10 am this morning His Honour handed down his decision on our application related to the 2020 Hotel Quarantine Program and the 801 deaths.

His Honour ruled that our application for a writ of mandamus (that would have required WorkSafe investigate the individuals and entities we named) was not submitted within the 60 days required under Supreme Court rules. Therefore our application was dismissed.

We will supply more information soon.

2021: A Victorian Health Department Space Odyssey – Where is Hal?

by

space-odysseyTry this piece of strangeness. We now have ‘proof’ that the Victorian Department of Health makes decisions and does things without any apparent human involvement.

The Department, we assume, must operate like Hal in the great, classic sci-fi movie 2001: A Space Odyssey. Hal was the super computer that ran the spaceship without human involvement. Somewhere in the Health Department ‘Hal’ must exist.

The ‘proof’ of Hal is contained in a 4 October 2021 memo to executives in the Health Department. On 29 September 2021 the Victorian WorkSafe Authority announced it was prosecuting the Department of Health over the 2020 Hotel quarantine disaster which resulted in over 800 deaths. The 4 October memo states:

“WorkSafe have advised that no individuals from the department are, or will be, charged.”

Here’s what this means. WorkSafe has found sufficient evidence of breaches of work safety laws to start a criminal prosecution of Health. We updated you on this last week. In other words, the Department did or failed to do things that has resulted in criminal charges being laid. BUT. According to WorkSafe’s advice to Health, no humans committed any of the criminal things. The Department acted criminally but no human acted criminally. Go figure!

But see. We told you so. It’s Hal! And now like the children’s book ‘Where’s Wally?” we have to ask ‘Where’s Hal?’

Here are just some of the questions that must be asked:

  • How did WorkSafe conduct a criminal investigation without interviewing any humans?
  • Or did WorkSafe interview and question humans?
  • If WorkSafe did interview humans, did any of those humans explain how the Department does things without humans making decisions or doing those things?
  • Can humans in the Health Department explain how the Department operates without humans making decisions or doing things?
  • Did WorkSafe meet or see Hal?

Of course, these questions are all nonsense and just as nonsensical as WorkSafe only prosecuting Health but not individuals.

In truth a government department is just a bunch of humans making decisions and doing things. A ‘department’ does not and cannot act criminally. Only humans act criminally. There is no Hal in the Health Department. Only humans.

But WorkSafe is acting on a fantasy, a Space Odyssey.

This is not just an isolated Victorian issue. It cuts to the heart of whether government in Australia operates impartially so that no-one is above the law, including government itself. It’s no joke. It’s serious!

Here’s the Health memo obtained through FOI.

Note the 104-page Charge Sheet but with all important information blanked out!

Prosecution of Victorian Health over 2020 Hotel Quarantine Disaster—Update

by

It’s been a little while since we updated you on the legal process of prosecuting the Victorian government over the 2020 Victorian Hotel Quarantine disaster that resulted in over 800 deaths. What’s at stake is whether governments hold themselves accountable to the same standards to which they hold the rest of us.

It’s quite clear that our Not Above the Law Campaign forced Victorian WorkSafe to prosecute the Department of Health. We have to ask the question: how genuine is that prosecution? We’re chasing this and here’s an update:

  • The prosecution of Health was announced on 29 September 2021 and involved the laying of 58 charges. Since then there has been NO, that’s ZERO, further information.
  • We decided to check things out. We went to the Melbourne Magistrates’ Court and were told that there was an online directions hearing on 26 May.  Members of the public could attend and we were told we’d receive an email link. The link arrived. We dutifully attended only to discover that we’d been sent the wrong link. Goodness—what an unfortunate mistake by someone!!!

SO

  • We tried to hunt down the case number. What an effort that was, given that the case name has not been made public from what we could discover. Victory! We discovered the name. It’s Victorian WorkSafe Authority v The Crown in the Right of the State of Victoria (Department of Health). Case number M12097325. If you want to follow the case, check the Magistrates’ Court website, choose the “Criminal List” button in the top left corner and put the case number in the appropriate box. Members of the public have a right to attend, but it seems you’ll need to ring the Magistrates Court to receive a link (assuming you’re sent the correct link) or else attend the hearing in person.
  • Next step is that we’ve applied to the Court for the release of all court documents. We’re after the charge sheet, summons, prosecution summary and so on. Lawyers tell us that in criminal cases (OHS charges are criminal) such documents are ordinarily public documents. But the release will be decided at the next hearing date, Friday 17 June at 10 am (a Committal Mention). It will be interesting to see if WorkSafe and Health both apply to keep the documents hidden from the public.

Justice is something that must be done and must be seen to be done! But, goodness, with the Health prosecution there seems to be a lot happening to keep it ‘unseen’. We’re chasing this up and will update you after the 17 June.

ABC’s Dr Norman Swan says badly degraded Victorian Health capacity to blame

by

norman-swanThe ABC’s Dr Norman Swan explains why Victoria did so badly with Covid in 2020. Watch his comments here (47sec): https://www.youtube.com/watch?v=x3h8mS-6VUM

Dr Swan says Victoria has

“… 88 different health services which don’t look after the population unlike most other states (the Victorian government)… long ago degraded … the public health capacity, and in 2009 they ran the white flag up … Dan Andrews was the Health Minister.”

This analysis by Dr Swan reinforces why we must proceed to push for the prosecution of the government and responsible individuals (Premier, etc.) over the 801 Hotel Quarantine deaths in 2020. If WorkSafe fails to do its job by prosecuting individuals, the degraded Victorian health system will continue to put people at risk. It’s unsafe.

Running parallel to Dr Swan’s comments is an analysis by a public administration academic who case studied the 2020 Hotel Quarantine program. His report Hiding in plain sight: Vulnerability, public administration, and the case of Covid-19 hotel quarantine sets out a table that shows all the actions and inactions of the government that led to the 801 deaths disaster. The paper says:

“The Covid-19 HQ Inquiry found that a series of actions and inactions surrounding decisions by politicians, practitioners, and policymakers with responsibilities for public administration portfolio areas gave rise to accidents which brought failures and subsequently a crisis into existence.”

“… the leadership and functional expertise at group as well as individual levels was unable to take meaningful action to ensure that the program was fit for purpose.”

However, the paper focuses exclusively on the notion that the disaster should be treated as a learning experience for public health administration. Some people might believe that no individuals need to be held to account to enable ‘learnings’ and change. Such a position would be plain wrong—even dangerous and unsafe in our view.

We see this attitude too often in public administration. The people who make the decisions (politicians and bureaucrats) are rarely held personally accountable for their decisions. The ‘blame’ is isolated and attached to the ‘system.’ But this is not the standard applied to business or the community. Small business people, in particular, are held personally accountable for every action they take. We say the public sector must be held to the same community standard.

This is why we say that Victorian WorkSafe is making things dangerously unsafe in only prosecuting the Department of Health and not the individuals who were the decision makers in the Hotel Quarantine disaster. Community standards of individual responsibility must be applied. No one is above the law.

More developments and news soon.

Xmas is here—Goodness. A quick update and Season’s Greetings!

by

seasons's-greetingsSuddenly Xmas is upon us. What a year!  Season’s Greetings to all our members and followers! We wish you the very best for a ‘non-lockdown,’ ‘sudden rules change’ Xmas and holiday season.

Here’s a quick pre-Xmas update for you on our two main campaign activities.

Victorian Government OHS prosecution campaign

The fund-raising response has been outstanding. We’re looking solid in achieving our funding target for the legal campaign. We try and ring people to say thanks for contributions but the numbers have become a bit overwhelming. Please accept our thanks if we haven’t rung you.

The funding is so solid that we’ve started the process of spending serious money on lawyers. The full legal team had a long and highly productive Zoom conference early last week. Tasks have been allocated, research into the finer details of legal issues is occurring, and preparation of court papers has begun. We’ll keep you updated during January. I won’t go into the details at this stage.

We’ve had quite a few queries around the fact that WorkSafe is prosecuting the Victorian Health Department and what this means. I’ve prepared another short video explaining that the prosecution of Health doesn’t change the fact that individuals also need to be investigated with a view to prosecution.

Here’s the YouTube video:

NATL

Reform of the Australian Taxation Office

Our decade-long campaign to reform the ATO rules governing how it is required to treat small businesses continues. Yes, we’ve been on this case for 10 years. Yes, we are persistent.

Here’s the ABC coverage of what we’re seeking:

Helen

You’ll be pleased to hear that we are in discussions with the ATO on our Taxpayers Rights Agenda based on the USA model for regulating the IRS. The ATO is showing genuine interest and seems to want to understand. That’s good. We’ll continue the discussions.

Other major issues

  • The new Federal ‘pay on time’ laws are now in full implementation. This is hugely important for small business people and a great Xmas present. We’ll provide some updates in the New Year.
  • The beefing up of Unfair Contract laws is slower than we’d like. The new Federal Bill has across-the-board support but seems to be caught up in an overloaded Parliamentary backlog of Bills. We hope it proceeds before the next Federal election. We’ll certainly push for this.

So again. Season’s Greetings to everyone. Let’s all trust that planned holidays, long overdue family gatherings and some well-deserved relaxation occurs without Covid-reactive government interference.

Justice means prosecuting individuals – Where is WorkSafe?

by

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

by

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

by

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.