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  • NotAboveTheLaw

Covid-19

Huge response to the call for our WorkSafe legal action support

November 29, 2021 by Self-Employed Australia

protestorsLast week we let you know that we are ready to go to court. And we asked for your support.

We’ve had a massive response and thank everyone who has contributed.

This is to bring you up to date on some more info.

Today we started radio ads on Melbourne talk back radio 3AW.
The response has been huge!
The ad runs all week.
Here’s the 30-second ad:

https://selfemployedaustralia.com.au/wp-content/uploads/2021/11/NATL-Radio-Dec-2021-Cut-01.mp3

We’re producing a series of short videos explaining why WorkSafe must do its job and why prosecution of individuals should occur. The Victorian hotel quarantine disaster in 2020 led to 801 deaths and cannot be ignored.

Here’s the first video (2.58s):

You-Tube-Nov21-1

We explain why WorkSafe Victoria must prosecute government departments and individuals. Our Not Above the Law campaign is calling on WorkSafe to do its job. No-one should be above the law.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

We are ready to go to Court. Now we need the money! 801 Deaths should not be ignored or forgotten!

November 21, 2021 by Self-Employed Australia

CourtOur efforts to require WorkSafe to prosecute Victorian government agencies and individuals over the 2020 hotel quarantine disaster and 801 deaths bore fruit in late September (7 weeks ago).

WorkSafe announced that it is prosecuting the Department of Health!  This prosecution demonstrates that our one-year-plus campaign was totally correct. Without our campaign the prosecution would almost certainly not be occurring.

But WorkSafe claims it doesn’t need to do anything else. It is refusing to prosecute responsible individuals, such as the Victorian Premier.

We say WorkSafe has a legal obligation to take the next steps. It must refer the investigations to the Victorian Director of Public Prosecutions. WorkSafe refuses. It has said to us “…WorkSafe is not required to provide reasons …” and told us that we “…may wish to seek independent legal advice…”  We will soon make this and other correspondence public.

Court action

We now have no option but to take WorkSafe to Court. We have organised a top legal team. The legal strategy is set. But let’s be clear. This will be a hard and expensive legal battle. The cost will be huge in legal fees. Now we must raise the money.

We need your $ contribution.

Thanks to the huge support from everyone so far. But this is now the BIG game. Every $ is important. Please let your friends know.

Contribute as a campaign member here. Contact me if you’d like to discuss making a contribution: 0412 393 692

Legal strategy

Our legal strategy and course of action has been carefully thought through. Here’s a briefing on the legal strategy. It explains our specific legal options before the Courts.

What’s the end result?

We’re simply wanting WorkSafe to do its job. That is, to investigate the following individuals, at least, and prosecute as and where required:

Daniel Andrews, The Premier of Victoria
Jenny Mikakos, The former Health Minister
Kym Peake, Secretary for Health and Human Services
Melissa Skilbeck, DHHS, Deputy Secretary, Regulation, Health Protection and Emergency Management
Andrea Spiteri, DHHS, Executive Director, Emergency Management
Jason Helps, DHHS, Deputy Director, Emergency Management
Brett Sutton, Chief Health Officer
Annaliese van Dieman, Deputy Chief Health Officer
Michelle Giles, Deputy Public Health Commander
Simon Crouch, DHHS, Senior Medical Adviser, Acting Deputy Chief Health Officer
Noel Cleaves, DHHS, Manager Environmental Health, Regulation and Compliance

This is about justice and the rule of law. No-one is or should be above the law.

Contribute as a campaign member here.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

Sutton’s decisions to remove staff was “shocking”. To prosecute or ignore?

November 17, 2021 by Self-Employed Australia

st-basilsThe Victorian hotel quarantine disaster of 2020 lead to 801 deaths, mostly in aged care homes. The Victorian government blamed those aged care deaths on the Commonwealth. ‘It’s not our fault’ was the message from the Victorian Premier’s media-manipulation team.  But now the facts and truth are coming out.

This week a coronial inquest into the 50 deaths at St Basil’s aged care home began. The evidence from just the opening day is startling.

According to media coverage a report from an independent expert in disaster and emergency health said that a lack of coordination between state and federal health departments was a “root cause of the tragedy at St Basil’s”. This shows a shared responsibility between the Victorian and Commonwealth departments.

But there were not large numbers of aged care deaths in other states. So why Victoria?

The coronial inquest gives a better understanding. The inquest heard that Victoria’s Chief Health Officer, Brett Sutton, ordered the removal of St Basil’s staff.  Victoria’s health department, Commonwealth health officials and local medical staffed called this decision a “shocking idea”.

The head lawyer assisting the coroner said that this decision by Brett Sutton was made “…despite all present apparently being aware of a risk that the replacement workforce may be inadequate to meet the statutory care standards”.  And this is what happened.

The new workforce, hastily bought in, were understaffed, not familiar with the patients’ needs and overwhelmed. The situation is described as “shocking” with staff in tears, “… positive and negative patients mingling freely, PPE not being cleared…” and more. The consequence was the deaths.

The head lawyer said the staff “…were operating within a wholly inadequate governance and management structure.”

This is consistent with the finding of the Coate Inquiry into the 2020 Hotel Quarantine disaster where the “…disaster that tragically came to be…” was caused by “…lack of proper leadership and oversight…”

That is, it was the inept, incompetent, chaotic management shambles by the Victorian government that resulted in the virus escaping the quarantine hotels. The coroner’s inquiry is pointing to the same managerial incompetence resulting in the deaths at St Basil’s aged care home. The Victorian government was intimately involved at each step. Brett Sutton was a top, key decision-maker at each step.

WorkSafe Victoria is prosecuting the Victorian Health Department over the quarantine disaster. They are not prosecuting any individuals. We continue our push to require WorkSafe to prosecute responsible individuals. WorkSafe’s prosecution of the Health Department demonstrates that our 18-month campaign (to date) is valid.

We are in deep strategic discussions with lawyers. ‘Robust’ correspondence with WorkSafe continues. We hope to let you know of next steps in the near future.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

Justice means prosecuting individuals – Where is WorkSafe?

October 27, 2021 by Self-Employed Australia

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:

https://selfemployedaustralia.com.au/wp-content/uploads/2021/10/3AW_Interview_Ken_Phillips_22_Oct.mp3

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:

https://selfemployedaustralia.com.au/wp-content/uploads/2021/10/Radio_advert_30s_Oct2021.m4a

 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

Filed Under: NotAboveTheLaw, Campaigns, Covid-19, Quarantine, Rule of law, Work Safety

WorkSafe thinks its move is ‘checkmate’ – Sorry WorkSafe, Ya Dreamin’

October 7, 2021 by Self-Employed Australia

WorkSafe-checkmateYou’ll likely be aware that last Wednesday (29 September) WorkSafe Victoria announced that it is prosecuting the Victorian Health Department for work safety breaches over the hotel quarantine disaster of 2020. The only problem is it is not going to prosecute any individuals.

It’s like prosecuting a gun for murder but not prosecuting the person who pulled the trigger. It’s plain dumb. But it’s also an affront to the rule of law in a supposedly civilised society. It also exposes WorkSafe as being two-faced.

On Monday, for example, after a WorkSafe prosecution, the operator of a skating rink was personally convicted and fined over unsafe levels of carbon monoxide. So where are the individuals responsible for the hotel quarantine disaster? Why isn’t the same standard applied? No-one should be above the law.

We think that the Health Department will likely plead guilty, pay a fine and there will be no trial. Individuals would walk away! This scenario could look like a legal ‘checkmate’ by WorkSafe. In other words, WorkSafe is looking to close down our campaign to prosecute 26 other government entities and individuals for the hotel quarantine mess that led to 801 deaths.

So what’s happened?

WorkSafe wrote to us effectively saying ‘case closed’. Here’s its letter of 29 September.

But we wrote back the same day responding ‘on ya bike chum!’ Here’s our letter.

Also that same day we lodged our formal complaint with the Victorian Ombudsman.

The Victorian Solicitor–General received a letter from us the following day.

Our campaign is only just warming up.

You’ve seen our TV ad? There’s more to come!

WorkSafe is prosecuting small businesses for not having Covid plans. But when it comes to the Victorian government, WorkSafe’s approach looks highly suspect. Why is it ignoring the plain, published evidence supporting the case for the prosecution? Remember the Coate Inquiry provided the evidence. We have analysed the evidence. The case to prosecute is starkly clear.

What we have on our side is facts, truth and the need for justice in a country where the rule of law is supposed to apply. We’re not like communist China, or at least we’re not supposed to be.

The thing is, it’s necessary to campaign hard to ensure that the rule of law is a living reality and not some fictional legal fairy tale. When a key institution that’s supposed to apply the rule of law, flouts the rule of law, it’s essential that we not give up.

Huge thanks to the expanding ‘army’ of supporters who are backing the campaign and making it possible.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

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

September 30, 2021 by Self-Employed Australia

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!

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

We launch our TV ad campaign – Tonight 6pm – WorkSafe Must Prosecute

September 27, 2021 by Self-Employed Australia

Tonight we launch our television advertising campaign. The theme is simple. ‘WorkSafe Must Prosecute’. Watch Channel Nine’s evening news at 6pm in Victoria.

Here’s the advert.

Here are images from the advert:

worksafe-campaign

The ad campaign has been a long time in preparation and only possible because of significant $ support from large numbers of SEA members. Our BIG thanks.

The television ads are being supported by a major social media campaign featuring the ad. And we’re running community A-Frame mini-billboard ads across some 50 sites in Victoria.

The campaign at this stage is planned to run for 3 weeks.

With WorkSafe Victoria continuing to refuse to do the job it is required to do we have to bring as much community pressure to bear as is possible. The rule of law must apply, no matter what exalted position an individual or organisation commands.

Remember our call for prosecution is based on evidence from the Coate Inquiry into the Victorian Hotel Quarantine disaster in 2020. Here’s our major analysis: The Case For The Prosecution.

Our campaign will continue to develop. We are not stopping. Rather we are just warming up.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

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

September 17, 2021 by Self-Employed Australia

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.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

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

September 4, 2021 by Self-Employed Australia

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.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Work Safety

Victorian WorkSafe still refusing to comply with its legal obligations

August 23, 2021 by Self-Employed Australia

worksafe-failIt’s been eight weeks since the Victorian WorkSafe Authority failed to send to the Director of Public Prosecutions (DPP) its investigation into the 2020 hotel quarantine disaster that led to 801 deaths. Every day it fails to do this is another day in which it is giving the big finger to the legal requirement it faces. We explained this 2 weeks ago.

It’s now 540 days since the quarantine disaster, 450 days since WorkSafe says it started the investigation and 330 days since we triggered the Act forcing WorkSafe to investigate.

Compare this to similar triggers for investigations made to WorkSafe in 2019-20. According to WorkSafe’s annual report, it had 11 requests that year and started all investigations within 9 days. The longest time to complete an investigation was 201 days.

The failure of WorkSafe in this current case is obvious and raises suspicion. What’s going on? I explained this and raised questions on national Italian radio last week. Listen here. (It’s in English.)

And talk about double standards. Look at this case. A hyperbaric company has been fined $726,750 over the death of a disabled patient. The company and director were found guilty of breaching section 26 of the Act (Duties of persons who manage or control workplaces). This is exactly one of the provisions that we alleged has been breached multiple times by the government in the hotel quarantine mess.

WorkSafe’s Acting Director Health and Safety said this of the case: “If you are running a business in Victoria, you have a responsibility to ensure the health and safety of not only your workers but also members of the public …” We say ‘Yes’ to this. Is WorkSafe going to apply this standard to the Victorian government? So far, ‘No’ is the answer!

The Acting Director also said “WorkSafe will not hesitate to take action against employers who put people’s lives in danger by not having basic safety procedures in place.”  Well, we ask for that standard to be applied to the Victorian government. So far, all we see from WorkSafe is not just ‘hesitation’ but outright refusal to comply with its legal obligations.

Yesterday we again wrote to WorkSafe asking it to act as the law requires it to act. Here’s our letter. Here’s our Case for the Prosecution document.

Filed Under: Campaigns, Covid-19, NotAboveTheLaw, Quarantine, Rule of law, Work Safety

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