After a lot of preparation we have today lodged in the Supreme Court of Victoria an application for a ‘writ of mandamus’ against WorkSafe Victoria related to WorkSafe’s failure to prosecute individuals and others over the 2020 Hotel Quarantine disaster.
We will shortly also issue subpoenas to 26 individuals and government departments to require them to answer questions. This will include the Victorian Premier, Chief Health Officer and others whom we have cited as requiring investigation. See the list here.
Our writ of mandamus is an application to the court asking it to issue an order to require WorkSafe to do certain things. What we are asking is quite simple.
- WorkSafe is prosecuting the Victorian Health Department for breaches of work safety laws to do with the Hotel Quarantine disaster. WorkSafe has told us that because it is prosecuting Health it doesn’t have to prosecute anyone else or do anything else.
- We say that under the work safety laws WorkSafe must supply to the Victorian Director of Public Prosecutions materials from its investigations into each of the other 26 individuals and departments we have named, if WorkSafe chooses not to prosecute them, and give us reasons why they are not prosecuting them. Our writ of mandamus asks the court to look at the law and decide who is correct, us or WorkSafe.
- If we are correct, the court would (presumably) order WorkSafe to (1) give us reasons for its decision not to prosecute the other 26 individuals and departments, and (2) hand its investigative materials to the DPP so that the DPP can advise WorkSafe (in writing) whether she considers that prosecutions should be brought in relation to any or all of the other 26 individuals and departments. Ultimately this would require a copy of the DPP’s written advice to WorkSafe to be handed to us.
This perhaps looks like a small legal step. But in fact the implications are vast. Is WorkSafe doing its job correctly at law or not? The court will decide.
In November last year we explained our legal strategy. See here. This is now being put into action.
This would not be possible without the huge support received from all SEA members. Our big thanks for all the $ contributions.
If you are keen to know the full details of our court action here is:
The originating application (3 pages)
The supporting affidavit (the first 13 pages) and all correspondence with WorkSafe and others (the remainder of the document and, yes, it’s lengthy!)
We have kept you updated on our efforts through our dedicated Not Above The Law section on our website. A quick summary for you, however, is as follows:
- Section 131 of the OHS Act enables anyone to lodge a request for investigation by WorkSafe if WorkSafe has not investigated an incident for 6 months. WorkSafe must then investigate.
- 29 Sept 2020 SEA lodged a 131 application on WorkSafe. WorkSafe had 9 months to investigate and decide to prosecute or not and was/is required to notify SEA.
- 29 June 2021 (9-month deadline) WorkSafe informed SEA that it had not completed its investigation. SEA then triggered an additional 131 provision that required WorkSafe to refer the matter to the DPP for the DPP to review and make a recommendation.
- 5 Aug 2021, WorkSafe informed SEA that it had not supplied its investigation to the DPP. This means that WorkSafe is failing to comply with its statutory obligation and has put the DPP in the position where it also is failing to comply with its statutory obligation.
- 29 Sept 2021. WorkSafe announces that it is prosecuting the Department of Health. WorkSafe tells us that it doesn’t need to do anything else.
The specific relevant section of the Occupation Health and Safety Act states the following:
Section 131 (3) If the Authority advises the person that a prosecution will not be brought, or that it has not brought a prosecution within 9 months after receiving the request, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
We have made the required request for referral in writing twice.
We will keep you informed as events unfold.