This is to report to you about last Tuesday’s (21 June 2020) Victorian Supreme Court hearing. This was the first court hearing in our attempts to have WorkSafe prosecute all 26 individuals and government entities in relation to the Hotel Quarantine disaster of 2020. Here again is our (20 June) briefing note explaining the legal play.
Tuesday’s court hearing was about identifying a legal question as to:
(a) whether WorkSafe could decide for itself who to investigate or
(b) whether WorkSafe is required to investigate all the government individuals/entities we named.
The legal question WorkSafe seeks to raise rotates around the meaning of the word ‘matter’ in Section 131 of the legislation. This section reads as follows
(a) a person considers that the occurrence of an act, matter or thing constitutes an offence …
… the person may request in writing that the Authority bring a prosecution.
(2) …. after the Authority receives a request it must—
(a) investigate the matter; and…
WorkSafe says that the word matter in 2(a) has a different meaning to the word matter in 1(a). WorkSafe accepts that the word matter in 1(a) means the individuals/entities SEA named. But WorkSafe says that matter in 2(a) means ‘topic’ (as defined in a dictionary) and that topic is whatever WorkSafe declares it to be – in this case the Hotel Quarantine Program.
Here is the transcript of the hearing. In the hearing His Honour the Judge wanted to clarify WorkSafe’s position. Here are some extracts from the transcript with WorkSafe’s barrister, Mr Craig QC, concerning the meaning of matter.
HIS HONOUR: My personal experience both at the Bar and as a judge is that the question of what constitutes a matter can be a very thorny one, Mr Craig, and as we know in context and constitutional context, there’s an awful lots of pages in Commonwealth Law Reports taken up to addressing what is a matter. Do you say none of those cases are relevant?… (Transcript page 20)
HIS HONOUR: …I would have thought a matter would embrace, on one view, that a matter would embrace an allegation of a specific ‑ of a breach of a specific provision of an Act. (Transcript page 20)
HIS HONOUR: I just want to be clear on your submission. Your submission is that where an individual passes through the gateway of 131 by alleging that another individual has committed an offence against a specific provision of the Act, as has occurred here, there is no obligation on the Authority to investigate that alleged contravention of the Act by that individual.
MR CRAIG: That would follow, Your Honour… (Transcript page 23)
HIS HONOUR: Can I ask you, have you identified any authorities in relation to the consideration of a matter outside of the well‑known constitutional framework?
MR CRAIG: None that I can point to in the specific context … (Transcript page 25)
Here are some extracts concerning what WorkSafe considers is the complaint.
HIS HONOUR: Just so I am clear on this, where in your written submissions do you articulate exactly what it is that you say the matter complained of in Mr Phillips’ correspondence is, what do you say the matter is? (Transcript page 17)
HIS HONOUR: Have you put that in your written submissions? I am just trying to pin you down in writing, if I may.
MR CRAIG: … We may not have, Your Honour.
HIS HONOUR: It is a pretty big omission, Mr Craig, if you will pardon me saying so, given the last half hour of your submissions. I want to be precise. (Transcript page 18)
The conclusion to the hearing is that WorkSafe is to go away and redraft the question that WorkSafe wants the Court to consider as a preliminary issue (separate question) before the case proceeds to a final trial hearing. A decision on the whether the Court will accept a redrafted question (if it accepts that it is appropriate and relevant to the conduct of the case overall), is likely around mid-July 2022.
WorkSafe was ordered and agreed to pay SEA’s legal costs for the day in court plus associated costs.
A full understanding of the proceeding is in the transcript. We have highlighted some sections. (Mr Rinaldi is SEA’s barrister).