Accountability needed over Victoria’s Covid errors

Jennifer Coate during the Covid-19 Hotel Quarantine Inquiry in July 2020. ‘Coate discovered what actually went wrong and who made the mistakes.’ Picture: James Ross - Pool/Getty Images)

Governments and their administrations are no different to corporations.

When listed companies suffer a major loss or trading reverse shareholders demand drastic changes in the board and senior management because, from past experience, unless a new approach is taken with new people the situation usually gets much worse.

And that’s what has happened in Victoria.

The state’s political and public servant leaders have this year made similar mistakes to their disastrous 2020 hotel quarantine errors. They are now in a desperate race to vaccinate as close as possible to 90 per cent of the population because, unless they do, the state’s health system will be in dire straits.

At the heart of the mess is not just the Delta version of the Covid virus, but the failure of the state’s WorkSafe safety protection organisation to quickly and decisively use its powers to investigate the circumstances behind the 801 deaths from the hotel quarantine scandal last year.

WorkSafe or SafeWork authorities around the nation have been given wide powers so that managements who allow or cause major accidents are replaced. In Victoria WorkSafe did not trigger changes at the top so the shambles continues and if the desperate vaccination race via compulsory orders fails, the inevitable catastrophe will be worse than 2020.

Among the mistakes being currently made are closing many Covid-help call centres at night, forcing patients who could be managed over the phone to crowd an already overstretched hospital system.

To cover the hospital staff gaps, bureaucrats are giving encouragement to nurses and other qualified people to move from testing sites to the hospitals.

The qualified people are often being replaced by insufficiently trained labour hire people who don’t understand the risks – exactly what happened in hotel quarantine.

To further illustrate how little has been learned, the WorkSafe government arm last week began suing another government arm over the hotel quarantine disaster. The maximum penalty for the 58 alleged breaches is $95.1m. The money simply goes in a circle less legal fees.

No individual prosecutions have been launched.

This made Victoria the laughing stock of the nation’s legal fraternity.

Finding herself in the middle of the fiasco is one the nation’s leading and most respected lawyers – Rowena Orr QC, of banking inquiry fame – who earlier this year accepted the post of Victoria’s Solicitor-General. I do not envy her.  Meanwhile, a team of Australia’s best occupational health and safety lawyers are working tirelessly to enforce the spirit of Victoria’s occupational health and safety rules in the hotel quarantine disaster.

Rowena Orr QC

They are being co-ordinated by small business advocacy organisation Self-Employed Australia and its executive director Ken Phillips. Their actions are based on their interpretation of the law, which includes:

• Under work safety laws the definition of a work site is very broad and the hotels were clearly work sites.

• Work safety laws are about protecting everyone in the community, not just employees. They cover governments and government employees.

• Breaches of the Act occur for both what people do and what people don’t do. Failure to do something is an offence. In hotel quarantine, one of the alleged offences was failure to ensure proper infection control procedures.

• The Victorian OH&S Act says that persons who manage or control workplaces must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health. It also says that persons who manage or control workplaces have a duty not to recklessly endanger persons at workplaces.

• The inquiry into the hotel quarantine disaster by Jennifer Coate was skilfully bagged by the Victorian government’s media brigade but Coate discovered what actually went wrong and who made the mistakes. She described how at the most senior levels of the two departments operating the program – Health and Jobs – there was fundamental disagreement over who generally controlled the program.

Health reported to both its minister and to the office of the Premier. According to Coate this bureaucratic dysfunction at the top of the Victorian government had an inevitable outcome “on the ground”.

• Under Victorian laws citizens can ask WorkSafe to prosecute individuals.

• Under the Act, if WorkSafe will not prosecute, then Phillips can then put the same request to the Director of Public Prosecutions, Kerri Judd QC, who also must either prosecute or set out her reasons. There appears to be a nine-month deadline under the Act. A year has gone by and no reasons for non-prosecution have been given.

But WorkSafe now says the matter is closed and, subject to the courts, appears to believe that the prosecution of the department means there is no need to give reasons why individuals were not prosecuted (WorkSafe has said it will not be providing further comment, as the matter is now before the court).

This saga still has a long way to run.