How authorities fought to keep Victorians in the dark

In one sentence, Victoria’s Covid commander Jeroen Weimar launched a court bid to hush the fact health authorities had made a promise they might not be able to keep.

“If the public was aware of this proceeding and thereby aware that there was a risk that contact tracing and QR code information might be disclosed to third parties, it would significantly undermine the state’s ability to manage the Covid-19 pandemic.”

With these words, Victoria’s Covid commander Jeroen Weimar launched a court bid to keep secret the fact the state’s health authorities had made a promise they might not be able to keep.

Documents obtained by the Herald Sun detail how an incredible 11-month battle between two government agencies played out in the shadows.

As it probed the government’s disastrous handling of the hotel quarantine program, WorkSafe demanded the personal and contact information of guests and staff.

When the Department of Health refused, the authority told the department it faced charges if it failed to comply.

A WorkSafe inspector even turned up at the department’s city office without notice to again request the documentation.

Victoria's Covid Commander Jeroen Weimar successfully sought to cover up the lawsuit with a gag order. Picture: Sarah Matray

By June, the wrangle landed in the Supreme Court, where the department sought a ruling that it could be exempt from divulging the information due to public interest immunity.

The case unfolded in a series of closed court hearings after Mr Weimar successfully sought to cover up the lawsuit with a gag order prohibiting any details being made public.

“I believe that if members of the public were concerned that their information would be shared with third parties for reasons other than the public health risk mitigation reasons for which it was collected, there would be significant hesitancy among Victorians in providing information to contact tracers,” he told the court in a written affidavit.

In the midst of the secret battle, which the Herald Sun had become aware of, the paper vehemently opposed any gag order but the details were suppressed until last week.

Finally, the revelation – and the attempts to cover it up – can be detailed.

Mr Weimar feared it would ‘undermine public trust and confidence in the contact tracing system’. Picture: Getty Images

In his arguments for secrecy, Mr Weimar conceded that if the court did not rule that contact tracing information was protected by public interest immunity, his team of virus detectives would no longer be able to guarantee confidentiality.

He feared that would “undermine public trust and confidence in the contact tracing system” and stop people from coming forward to be tested, and in turn, cause further outbreaks.

“We give a significant undertaking to hold that information confidential for the purpose of public health and not to share it beyond that,” he said.

“We would have to change that approach and that would be a matter of significant public commentary.”

A trial to determine if the contact tracing information is protected by PII was slated for October 18 but was abandoned after WorkSafe found it already had enough evidence to charge the department.

It charged the department on September 29 with 58 offences over its failures to keep people safe in hotel quarantine.

WorkSafe charged the Health Department with 58 offences over its failures to keep people safe in hotel quarantine.

The workplace watchdog told the department it would no longer be pursuing them for the information and would ask the court to dismiss the matter.

Ultimately, Justice Andrew Keogh dismissed the case and did not rule on the department’s PII claim, despite them asking him to still do so.

The department told the court a lack of any ruling would leave uncertainty as to whether a PII claim could be made in the future and was “likely to cause a degree of public alarm about the release and use of confidential information”.

Even if the department had a PII win against WorkSafe, Justice Keogh said in his ruling that it would not prevent other authorities from seeking the information under a different statutory regime based on different factual circumstances, with a different outcome.

“There cannot be an absolute protection of contact tracing information on public interest immunity grounds which renders it immune from disclosure, irrespective of the precise information concerned, and when, in what circumstances, and for what purpose disclosure of the information is sought,” Justice Keogh said.