Part 1: An explanation of the law
December 2020
1. Obligations under the OHS Act
- A person, entity or organisation has legal obligations under the OHS Act to do things to minimise and prevent harm to others.
- The obligation applies to the private and public sectors.
- Breaches of the Act can occur for what has been done or not done.
- The standard to be met is to do what is ‘reasonably practicable’.
Although the Act has application to ‘work safety’
- The Act has a broad reach in what constitutes ‘work’ and a ‘work site’. The operation of the Hotel Quarantine is well within the ambit of the OHS Act as a ‘worksite.’
- Even though the Act applies to keeping ‘employees’ safe, the obligations require responsible parties to keep ‘others’ safe. This includes members of the public.
2. Hotel Quarantine Failure breaches of the OHS Act
- The hotels used for quarantine were/are ‘worksites for the purposes of the OHS Act.
- It would be an expectation under the OHS Act that in the management of the Hotel Quarantine that the government would have had a document or documents detailing the policies and procedures for the management of the hotel quarantine.
- Investigations demonstrate that the Victorian government had no such detailed plan, policy or procedures documents.
- Evidence submitted under oath by the Secretary of the Victorian Department of Health and Human Services states that “… there were no plans in place for a mandatory hotel quarantine program for returned travellers…”.
- Failure to have such a plan is of itself prima facie evidence of a breach of the OHS Act by the Victorian government.
- Consideration has to be had as to whether the need to have a plan for hotel quarantine was ‘reasonable and practicable’.
3. Are prosecutions required?
The evidence is that the Victorian government had no plan for the management of the Hotel quarantine program for international travellers. The WorkSafe Authority has a requirement under the OHS Act to investigate the Victorian government, responsible departments, Ministers and public servants for such a failure.
4. Comparative example
If, for example a cinema complex failed to have a written policy and procedures manual for the emergency evacuation of the cinema complex (worksite), the failure to have such an evacuation manual/procedure, is of itself a breach of the Act. This applies even if no evacuation were to ever occur and no person were ever put at risk. It is the failure to have the plan that creates a breach of the Act.
The requirement for such plans is fundamental to OHS compliance.
A failure of the Worksafe Authority to investigate and consider prosecution of the Victorian government for its failure to have a hotel quarantine management plan undermines the entire integrity of the Victorian worksafe system. This establishes a dangerous precedent whereby other businesses and organisations would claim immunity for similar worksafe breaches in the future.
5. Two fundamental questions
The evidence is, and the government has admitted, that it had no plan for the management of hotel quarantine.
Two key questions need to be addressed if a prosecution were to be justified on the basis that no management plan existed:
- Was it ‘reasonable and practicable’ to expect that a pandemic was to occur?
- Was it ‘reasonable and practicable’ to expect that hotel quarantine for returning passengers would be required?
This research exercise accumulates facts relevant to these two key questions.
6. Key questions
- Was the pandemic unprecedented?
- Was it reasonably practicable to prepare for the pandemic?
See here for the next level assessment.