A shambolic end to a deplorable episode that cost more than 700 lives

The collapse of WorkSafe Victoria’s pursuit of the Health Department over the government’s hotel quarantine program provides a fittingly shambolic end to a lamentable failure of public administration and accountability.

It is four years, nearly to the day, that a family of four infected with COVID-19 flew into Melbourne Airport from Bangladesh, checked into the Rydges Hotel on Swanston and seeded a second wave epidemic that plunged the state into lockdown and killed nearly 800 people.

The Rydges Hotel in Carlton in April 2020.Credit: Penny Stephens

It is now well established that none of this was the fault of the family, the security guards responsible for keeping them in their rooms, hotel staff or the public health officials tasked with running a fatally ill-conceived program.

These are people who, if the WorkSafe prosecution had reached a verdict, might have received a belated token of justice.

Instead, there will be no trial and no criminal finding of fault against the Department of Health or anyone else.

The reasons for this, at first blush, are simple enough.

Three weeks ago, Victorian County Court Judge Andrew Palmer delivered a pre-trial ruling that meant WorkSafe could not include as evidence in its case the statements provided by Department of Health officials to an earlier board of inquiry into the hotel quarantine program.

This ruling is based on a broad provision in Victorian law that enables people to appear as witnesses at royal commissions or before other inquiries without fearing that the information they provide will be used against them in other proceedings.

It is no technical loophole but rather an essential safeguard that helps public inquiries get to the bottom of contentious issues.

In this case, WorkSafe wanted to use as evidence against the Department of Health statements and testimony by 10 department employees, prepared with the assistance of departmental lawyers and senior managers, for the 2020 inquiry chaired by Jennifer Coate into the failings of hotel quarantine.

Citing well-established precedents, the judge ruled no dice.

Victoria’s Office of Public Prosecutions, the other agency responsible for bringing this case, decided that without this evidence, the case was doomed to fail.

This is where the episode gets a little murky.

WorkSafe should have anticipated that any criminal prosecution relying on statements provided to a public inquiry could run into legal trouble. This problem could have been avoided had WorkSafe obtained its own statements from the Health Department witnesses.

As Palmer noted in his ruling, WorkSafe has coercive powers under the Occupational Health and Safety Act that it could have used for this purpose. It had the power and certainly the time to do the work needed to build a criminal case. It appears to have failed to do so.

The OPP also has some explaining to do. Instead of abandoning the case against the Department of Health once the judge handed down his ruling, it could have sought a stay of prosecution and given WorkSafe an opportunity to use its investigative powers to fill in the evidentiary gaps.

A spokesperson for the OPP declined to answer questions from this masthead about when it first provided advice to WorkSafe Victoria about the risk of relying on statements tendered to the Coate inquiry and why WorkSafe did not attempt to secure its own evidence from the Department of Health witnesses.

A lawyer involved in the Coate inquiry, speaking confidentially to discuss legally sensitive matters, described the chain of decisions surrounding the WorkSafe prosecution as “absolutely shameless”.

The Department of Health welcomed the decision to abandon the case against it and, given the reluctance of many Victorians to revisit some of the more troubling episodes of our pandemic years, the decision is unlikely to provoke a public outcry.

The two-year statute of limitations on alleged criminal breaches of Victoria’s workplace health and safety laws has expired. This means that, even if WorkSafe wanted to rebuild its case, it would require special dispensation from the OPP to exhume its prosecution.

The prospect of this happening appear as remote as Victoria returning to COVID zero.

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