Summary & Commentary
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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.
- 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’.
2. 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.
3. The Ruling detail
What follows is an explanation of the Ruling and SEA commentary.
The Ruling is available here, with sections highlighted to assist understanding.
To further assist, the ruling is laid out as follows (paragraph numbers included as reference):
Introduction—background to case (Paras 1-4)
Proceedings dismissed (Para 5)
History of Proceedings (Paras 6-11)
Hotel Quarantine & Coate Inquiry (Paras 12-13)
SEA’s s131 request (Paras 14-48)
- Sequence of correspondence between SEA, WorkSafe and others
When did the ‘clock; start? (Paras 49-83)
- SEA bears the onus of proving that WorkSafe failed to investigate (Para 61)
- WorkSafe’s failure to answer SEAs questions does not support the view that WorkSafe had not investigated (Paras 65 & 68)
- Declares that the ‘clock started on 29 September 2021 with 60 days at 28 November 2021) (Para 83)
Special circumstances? (Paras 84-110)
- Rejects Phillips evidence/statement that he (Phillips) did not conclude from the Health Prosecution announced that WorkSafe had conducted investigations into the remaining 26 individuals and entities. (Para 101)
- Prejudice – Stress (Paras 105-110)
Merits of SEA’s application (Paras 111-135)
Did WorkSafe fail to investigate? “This contention is not supported by the direct evidence” (Para 112)
Preliminary Costs Order (Para 136)
The following is a commentary on the ruling.
4. Dismissal for lodging after 60 days
- A writ of mandamus is a court order to require a government authority to comply with its statutory obligations. The question becomes one of whether and when the authority failed its statutory obligation. In this case, the failure for which SEA sought an order was the failure of WorkSafe to investigate the 26 entities WorkSafe did not prosecute.
- His Honour stated that the onus of proving that WorkSafe had failed its obligations fell upon SEA. However, SEA could not ‘prove’ this one way or the other because only WorkSafe had the evidence of whether it had investigated or not. That is why SEA repeatedly asked WorkSafe to answer the simple question: ‘has WorkSafe investigated the 26 individuals/entities or not(?)’ WorkSafe consistently refused to answer that question, thereby denying SEA the information it needed to satisfy the onus of proof.
- On 11 July 2022, SEA issued to WorkSafe a ‘Notice to Admit’ (whether the investigations had taken place). WorkSafe never replied. The Court knew that WorkSafe refused to answer this question. The Court knew that WorkSafe was denying SEA the information it needed to give effect to the ‘onus to prove’. The Court never requested, required or ordered WorkSafe to answer SEA’s simple question.
- If WorkSafe had answered the question and (a) replied that it had investigated, then the mandamus application would not have been necessary; or (b) had not investigated, then the evidence of WorkSafe’s failure to comply with its statutory obligation would have been established as would the date on which the failure occurred.
That is, by means of obfuscation, WorkSafe avoided telling the truth, avoided being transparent and avoided accountability.
- In the absence of the truth by WorkSafe and the Court’s failure to require WorkSafe to be truthful, then the issue of ‘time’ became one of the Court’s asserting what it says SEA thought (as to whether investigations had occurred).
- The Court did this by way of a convoluted interpretation (Paras 49-83) of multiple pieces of correspondence. The Court rejected SEA’s testimony that it did not conclude that WorkSafe had not investigated until 10 January 2022. Instead, the Court asserted that SEA knew, or should have known, on 29 September 2021 that WorkSafe had conducted investigations. SEA totally and completely rejects this assertion and decision of the Court.
That is, SEA says the ruling is wrong.
SEA views the ruling as a complete miscarriage of justice, one that has allowed WorkSafe to avoid undertaking its statutory obligations.
5. The issue of ‘prejudice’ and ‘stress’ (paras 105-110)
The dismissal of SEA’s application could have effectively stopped at that point. But the Court proceeded to make statements asserting that it should not exercise its discretion to extend the mandamus 60-day time limit as those potentially facing prosecution might suffer ‘stress’. That is, that ‘stress’ created ‘prejudice’. The Court stated:
- “…each of the individuals and entities identified in the First Request may suffer significant prejudice if SEA is granted an extension of time.” (Para 105)
- “In determining whether there are special circumstances justifying the grant of an extension of time I place weight on the desirability of the finality in litigation where the interests of third parties are affected.” (Para 108)
- “If SEA is not granted an extension of time the individuals referred to in the First Request will be freed from the not insignificant stress of potentially being subjected to prosecution for serious criminal offences.” (Para 109)
- “However, the 20 individuals identified in the First Request may suffer considerable prejudice if SEA is granted an extension of time and the proceeding remains on foot.” (Par 110)
It is unknown if the Court intended this ‘prejudice/stress’ issue was to be isolated to this case only or if this is a general principle of law. If this is a general principle of law, or a new principle of law, then conceptually no-one who is ever facing prosecution and who feels or could feel stressed should be prosecuted; because they are ‘prejudiced’. This is serious because the Supreme Court is the highest Court in Victoria, and its decisions (and reasons for decisions) can create binding precedents that must be followed in the cases in inferior courts.
6. Did any of the individuals SEA named warrant being prosecuted?
The Court chose to make comment as to whether the individuals SEA named warranted being prosecuted. SEA’s application did not ask that question.
SEA’s application related entirely as to whether WorkSafe had undertaken its statutory obligations. SEA had conducted a highly detailed assessment of the facts of the management of the hotel quarantine program as described in media reports, but more significantly the detailing of management behaviour contained in the Coate Inquiry Report. This assessment was undertaken by highly experienced OHS lawyers. That is, the relevance of SEA’s assessment to the mandamus application was and is that the mandamus application was not frivolous. SEA’s application was not an exercise in political or other troublemaking. SEA’s application was the result of a serious and detailed assessment of the facts and a deep concern that WorkSafe was failing in its obligation to apply the law to everyone in the community. SEA continues to have that deep concern. The issue is about the consistent application of the rule of law, that the rule of law must be done and seen to be done.
The Court ruling, however, spends some time asserting that the individuals SEA named should not be prosecuted. The Court does this primarily on the bases that the Coate Report made no OHS findings against:
- The Premier or Ministers Mikakos, Neville and Pakula. (Para 122)
- Professor Sutton, Ms van Diemen and members of the Public Health Team. (Para 123)
- Ms Andrea Spiteri and Mr Jason Helps as State Controllers. (Para 124)
- Police Chief Commissioner Patton, Commissioner Crisp and Mr Ashton. (Para 125)
- Members of the State Control Centre and Mr Eccles. (Para 126)
- Ms Melissa Skilbeck or Mr Simon Phemister. (Para 127)
- “SEA’s First Request makes extremely serious allegations against a raft of individuals. The findings of the Coate Inquiry Report do not support a finding that there is a prima facie basis for the alleged contraventions.” (Para 130)
SEA takes the view that this analysis by the Court is superficial and naïve. The Court’s comments fail to undertake any analysis of the facts of the managerial behaviours and failures detailed in the Coate Report and to apply those facts to the requirements to conduct a safe workplace as required under OHS law. SEA entirely rejects the Court’s ruling on this issue.
7. 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?