Victorian cabinet manslaughter charges three steps closer

Victorian Premier Daniel Andrews and Health Minister Jenny Mikakos at a daily media conference. Picture: Andrew Henshaw

While all the public attention was on lockdowns, last week the state of Victoria took three significant and deliberate steps towards the prosecution of members of its cabinet for industrial manslaughter – a crime that carries a maximum penalty of $16.5m and/or 25 years in jail.

The industrial manslaughter Victorian legislation was designed by Premier Daniel Andrews and the current government with the aim of jailing and heavily fining the chairman, chief executive, chief financial officer and directors of any large corporation where there was a death on or associated with their workplace. It was vicious legislation casting a wide net but it did not pass the parliament until late November. Seven weeks later COVID-19 hit Victoria,

Not in their wildest dreams did the Victorian cabinet ever consider that their personal freedoms and finances might be the first to be put on the line as the new and powerful legislation was tested.

While each of the three steps are significant there are many other steps before any industrial manslaughter action is taken against the Premier and members of his cabinet.

I also want to emphasise that I have no wish to see a Victorian Premier in jail but the ALP Victorian government in their thirst for corporate blood passed legislation that arguably is very unfair to people at the top.

Last week’s first step in moving towards industrial manslaughter charges was the dramatic announcement by the new WorkSafe chief executive Colin Radford that WorkSafe would be in investigating the Department of Health and Human Services and the Department of Jobs, Precincts and Regions for possible breaches of workplace safety.

I am fully satisfied that the decision of Radford to investigate was made independently of my comments and those of others on this matter.

That’s good news for the integrity of the investigation.

Secondly while Radford and WorkSafe investigates, the public investigation is showing Victorians just how crazy the administration of the quarantine became. There is no suggestion that WorkSafe will be nobbled by the government in its investigations. But theoretically, if it were, then the public would be in a unique position to realise what had happened. The position of Radford and his board would be untenable.

Finally Attorney-General Jill Hennessy confirmed that the ministers of the Crown are subject to penalties for breaches of workplace safety including charges of industrial manslaughter. Similar assurances were made in the parliament when the bill was being debated.

Accordingly ministerial liability is locked in. What has not been made clear is whether any ministers charged would have to pay their own legal fees, given it’s a criminal matter.

For anyone, including ministers, to be potentially liable under the industrial manslaughter act their organisation has to be first convicted of an offence under the Occupational Health and Safety regulations (OHS).

Accordingly the first step in any OHS conviction is an investigation by WorkSafe. That’s why Radford’s announcement was so important.

In addition members of the public can ask WorkSafe to prosecute and CEO Radford must either recommend prosecution or explain in detail why he’s not proceeding with the prosecution.

If Radford decides not to prosecute then again individuals can ask the Director of Public Prosecutions, Kerri Judd, QC, whether she will be prosecuting. And again if there is no prosecution then Judd must set out the full reasons and those reasons can be compared with the material in the public inquiry.

Imagine the public outcry against Radford and Judd (the first woman to be Director of Public Prosecutions) if there was a major chemical fire that killed hundreds of people and made parts the city unliveable and it was clear to the public there had been negligence. In the case of COVID-19 it is possible to trace the virus strains so that the number of Victorian deaths, including those in aged care facilities, that were caused by the quarantine fiasco can be calculated. The chief health officer has speculated that all the aged care deaths may have been related to the quarantine bungle.

In the parliamentary debate on the industrial manslaughter legislation, the opposition tried to add employee responsibility but it was rejected by the government. And so in the hotel quarantine affair employees infected vast numbers of people but will not be prosecuted for industrial manslaughter. Instead it’s the tall poppies, the directors of the companies involved and the cabinet who may have to face the music.

The nearest situation that I can recall to the Victorian and political legal issue was when in 1929, “ Red Ted” Theodore resigned as federal treasurer after a Queensland royal commission declared he was guilty of “fraud and dishonesty”. Members of the Victorian cabinet will be aware of the Theodore precedent. No Theodore prosecution was undertaken so he resumed his role as Treasurer in the ill-fated Scullin government.

And for the record, under the guidance of a top Australian OHS lawyer, the executive director of Self-Employed Australia, Ken Phillips, has written a letter to WorkSafe Victoria alleging breaches of the act by various Victorian Government organisations and agencies managed or controlled by the Victorian Government.

While Radford announced an investigation the actual letter will need to be resent because Radford believes there is a timing issue which the Australian OHS lawyer recognised was possible. The law takes time in situations like this.