Self Employed Australia

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NotAboveTheLaw

notabovethelaw

Requiring WorkSafe Victoria to undertake its statutory obligations

Outcome of the Victorian Supreme Court action

January 2023

801 Deaths – Cannot be forgotten or ignored

Below is the detail of SEA’s 3-year effort to require WorkSafe Victoria to undertake its investigative obligations in relation to the Victorian government’s botched Hotel Quarantine Program of 2020. The efforts culminated in a Supreme Court application to require WorkSafe to investigate the individuals and entities we named as responsible.  That application did not succeed, with the Court handing down its final ruling on 21 December 2022.

Outcome: Victorian Supreme Court Action—Explanation

On 21 December 2022, the Court delivered a decision 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.

  • This link is to the ruling of 2 December. We’ve highlighted some sections.

Washup

Self-Employed Australia Executive Director Ken Phillips and Chair Nick Karamouzis explain the Court’s decision and  provide a ‘washup’ on Discernable.

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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/assessmentswe 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 allowed 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.

Why we do what we do

This blog post from November 2022 explains why we undertake such campaigns. There is no personal gain for any member of SEA in our doing this. But we campaign for important community and legal principles.

Simply – No One Should Be Above The Law.

Overview and timelines of the 3-year campaign

In March 2020 the Victorian government operated a failed Hotel Quarantine Program in an attempt to prevent the spread of the Covid-19 virus from incoming travellers to the community. The Program was so badly mismanaged by the government that the virus quickly escaped from the quarantine hotels and resulted in 801 deaths—mainly in aged-care facilities.

In December 2020 the government inquiry into the botched Program (The Coate Inquiry) released its final report. The Inquiry did not have a specific brief to consider possible breaches of the Occupational Health and Safety Act (OHS), did not discuss possible breaches and made no recommendations as to prosecutions for breaches. The Inquiry did, however, forensically describe behaviours which, when considered from an OHS perspective, established enough evidence to warrant the consideration of prosecutions.

The Victorian WorkSafe Authority is the responsible authority for investigating and prosecuting breaches of the OHS Act.

From around April/May 2020, Self-Employed Australia (SEA) had studied the very public media evidence of the failed Hotel Quarantine program. SEA concluded that OHS breaches had likely occurred by government individuals and entities who were in charge of, and responsible for, the program.

On 29 September 2020, SEA utilised provisions in the OHS Act (section 131) that enabled any person to write to WorkSafe Victoria requesting prosecutions for alleged OHS breaches. On receiving a request and under the Act, WorkSafe’s obligations are to:

  • Investigate the alleged breaches;
  • launch prosecutions if considered warranted; and
  • provide reasons to the applicant where not prosecuting.

WorkSafe is required to complete these actions within nine months of receiving the application.

  • Where prosecutions do not occur, the applicant can then write to WorkSafe to require WorkSafe to refer the matters to the Director of Public Prosecutions.

SEA submitted to WorkSafe that 27 Victorian government individuals and entities should be prosecuted. WorkSafe’s statutory obligation was then to investigate.

After the Final Coate Report was released (December 2020) SEA undertook a detailed analysis of the report from an OHS perspective. The analysis confirmed SEA’s earlier assessment and added a deeper level of understanding, as the Coate Report had described in exacting detail government managerial behaviours/failings. From this, SEA produced a report ‘The Case for the Prosecution’. On the SEA analysis of the Coate Report the evidence was overwhelming that the individuals and entities we named warranted investigation with a view to potential prosecution. It was for the courts to decide guilt or otherwise.

After SEA’s 131 application, WorkSafe failed to fulfill its statutory obligation to report to SEA within the required nine months. But, three months late, on 29 September 2021, WorkSafe announced that it was prosecuting the Victorian Department of Health but only that one Department. Over the next four months (to January 2022) SEA repeatedly corresponded with WorkSafe asking WorkSafe to confirm whether or not WorkSafe had investigated (as required) the other 26 individuals and entities that SEA had named. WorkSafe consistently refused to answer that question.

On 14 February 2022, SEA made application to the Victorian Supreme Court for an order (writ of mandamus) to require WorkSafe to fulfill its statutory obligations—that is, to investigate the remaining 26 named individuals and entities if investigations had not occurred.

Comment: The mandamus application would never have been necessary if WorkSafe had replied to SEA’s repeated requests for an answer on the 26 individuals and entities. Due to WorkSafe’s refusal to answer, SEA was forced to conclude that WorkSafe had not conducted the required investigations. Hence SEA felt compelled to make the mandamus application to require WorkSafe to comply.

The court consideration was conducted over an 11-month period in 2022 involving three court hearings.

Phase one:

  • Through the first phase and first hearing, WorkSafe argued that the definition of the word ‘matter’ in section 131 of the Act enabled WorkSafe to decide for itself what it would investigate and in this case said the word ‘matter’ meant the Hotel Quarantine Program.
  • SEA submitted that the word ‘matter’ in the Act meant the 27 individuals and entities that SEA had named.
  • This issue was never formally resolved by the court.

Phases two and three:

  • At the hearing of 5 August 2022 His Honour raised the issue of whether SEA had lodged its mandamus application within 60 days as required under the Victorian Supreme Court rules.
  • The question then to be answered was ‘from when did the 60 days start?’
  • This could only be answered by picking a date from which it could be said that WorkSafe had not fulfilled its statutory obligations to investigate.
  • SEA argued that because WorkSafe refused to answer the question as to whether it had investigated the 26 individuals and entities not being prosecuted, that the date for the ‘clock to start ticking’ was 10 January 2022 when WorkSafe closed correspondence and informed SEA to ‘seek independent legal advice’.

The Ruling overview

On 2 December 2022, the court ruling was handed down. The ruling declared that the date for the start of the ‘clock’ was 29 September 2021—that is, when WorkSafe announced that it was prosecuting the Department of Health. Because SEA submitted its application on 14 February 2022, the Court declared that SEA had not made its application within the required 60 days and therefore the application was dismissed.

On 21 December 2022 the court issued a final ruling on costs.

WorkSafe did investigate?

The ruling concludes by stating

  • “ The objective evidence points strongly to the conclusion that VWA did conduct an investigation sufficient to discharge its statutory duty under s 131(2A)”. (Para 130)

SEA asks the question. If this is so,

  • Why did the Court not directly require WorkSafe to answer the simple question as to whether it (WorkSafe) had undertaken the required investigations into the individuals and entities named?

If the Court had required an answer from WorkSafe and WorkSafe had answered in the affirmative, then the mandamus application by SEA would have fallen away immediately. The entire court exercise would not have been necessary.

This must lead to a final question. What was the motivation of WorkSafe in refusing to answer the simple question as to whether it had conducted investigations into the named individuals and entities?

Details of the 3-year campaign

Content

On the rest of this page you’ll find:

1. Relevant background documents on infection control planning pre-Covid.
2. Other relevant correspondence.
3. Key events and facts 2020-21 before we launched Supreme Court action.
4. Our explanation of why prosecutions should occur – Coate analysis – including Videos.
5. Our Supreme Court action 2022.
6. WorkSafe prosecuting the Department of Health.
7. 19 June 2022 Update

WorkSafe prosecuting Department of Health

SEA Supreme Court action against WorkSafe Victoria

Key documents, SEA actions against WorkSafe 2020-21:

We explain why prosecutions should occur

Note: We don’t say that anyone is guilty. Guilt or otherwise is for the courts to decide. We do say that the evidence is overwhelming that WorkSafe should undertake investigations with a view to prosecuting.

prosecution-caseThe Case for the Prosecution

We’ve produced a 20,000 word ‘brief’ that explains why the Victorian Government, departments and senior persons must be prosecuted. The analysis draws on the evidence from the Coate Inquiry. We’ve supplied this to the Victorian Director of Public Prosecutions (DPP). Here’s:

The Coate Report says the quarantine program was a “catastrophe waiting to happen” a “disaster that tragically came to be” caused by “lack of leadership and oversight.”

Ken Phillips explains the report (8 minutes)

Video: WorkSafe Must Prosecute. Television Advert

television-advert

Key Events & Facts 2020-21, before we launched Supreme Court action

There has been much correspondence between SEA and WorkSafe. Here are the key events. See below for further correspondence.

Event One: Our letter to WorkSafe (29 September 2020) and its reply (7 October 2020)
This triggered that WorkSafe is required at law to investigate the government and to inform us within 9 months if it is prosecuting.

Event Two: We ask WorkSafe about its investigation processes. (4 January 2021).

Event Three (a): 9-month point—WorkSafe say they are still investigating not prosecuting.  (29 June 2021)
Event Three (b): We refer the matter to the Director of Public Prosecution.

Event Four: WorkSafe to Prosecute Health Department (29 Sept 2021). But refuses to prosecute individuals.

Event Five: We launch proceeding in the Victorian Supreme Court. See above (14 Feb 2022).

Key fact A: We explain how the work safety laws apply to the Victorian government over the failed quarantine.

Key Fact B: 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!

Watch this video (4 min): covid-not-unprecedented

Other relevant correspondence:

Relevant documents on infection control planning pre-Covid:

 

Videos about OHS Prosecution

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