Hotel quarantine inquiry: the power to probe the ‘don’t knows’

WorkSafe Victoria chief Colin Radford, inset; A man walks past the Stamford Plaza Hotel, one of the Melbourne hotels where a coronavirus outbreak occured.

The chief of WorkSafe Victoria, Colin Radford, has far more power to probe Australia’s greatest industrial disaster – the hotel quarantine fiasco – than the government-appointed investigator Jennifer Coate.

Not only does Radford have the power and ability to get behind the “don’t knows” that studded the Coate inquiry but he will required by law to take his inquiry into much broader areas to find out what really happened. Because of what has already been revealed in the Coate inquiry, this is an incredibly dangerous situation for sections of the Victorian cabinet and public service.

Radford can cross-examine anybody and has wide powers to view documents and other material. The parliament gave him these powers, believing they would be necessary to extract incriminating evidence from corporate executives involved in deaths caused by unsafe workplaces.

The politicians and public servants in Victoria remember Radford as a former press secretary to premiers Steve Bracks and John Brumby and are hoping he won’t do his job and will simply either paper over the whole thing or delay and delay. But more than 700 people have died, and vast areas of the community have been brought to their knees. The public won’t stand for a whitewash either from Radford or the Director of Public Prosecutions, Kerri Judd.

Looking at their background and abilities, I don’t think either Radford or Judd will be intimidated and will follow the clear rules set down by former premier Steve Bracks in Victoria’s Occupational Health and Safety act.

To find out who authorised the appointment of private security guards Bradford will need to take a different approach to the top down investigation by Coate.

Quarantine inquiry head Jennifer Coate.

The way to discover that aspect of the truth is to use old fashioned journalistic techniques and start at the bottom and talk to those that were undertaking the supposed security, then to organisations that employed them. When you reach the prime contractor or contractors you look at who signed the contract from the government. And from that base level of governmental authorisation, step by step you go up the ladder and discover who authorised each action and finally you reach the point where a document is signed and there is a dispute as to who authorised the signatory. That isolates the fault among the current showers of “don’t knows”.

Also, along the way, there were strange conversations with the trade union movement and they too should be investigated to determine whether unions had a role in the decision-making.

Bradford has the power to do all those things.

But there are much bigger issues.

Among the criminal – and I emphasise criminal – offences under sections of the Victoria’s Occupational Health And Safety Act 2004 (The Bracks act) is failure of employers, which in this case includes the government, to provide and maintain safe systems of work; failure to provide information, instruction, training and supervision for the safety of employees; failure to monitor the conditions of the workplace …. and the list goes on.

Victorian Premier Daniel Andrews. Picture: Getty Images

If a group commits an OH&S offence, any officer in that group whose actions are clearly attributed to the contravention is also guilty of an offence.

Let me illustrate with examples.

In criminal matters like these the defence of “I don’t know” is not normally applicable. And so a drunken driver who kills 10 people can’t claim under WorkSafe that he or she didn’t know that alcohol was dangerous when driving.

Alternatively let’s assume the government owns an oil refinery and undertakes every single conceivable safety precaution and training system but a totally unforeseen event causes it to explode and kill 700 people. Under the Bracks OH&S law all those involved including the politicians have protection. But if they did nothing by having no systems of safety and didn’t exercise their clear responsibility then they require prosecution. The court will determine whether they are guilty.

WorkSafe Victoria chief Colin Radford has wide powers to investigate the hotel quarantine fiasco.

In the evidence before the Coate inquiry it was clear many of the public servants didn’t even inquire about the systems. As I have pointed out previously 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, 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. Should a person be prosecuted it does not mean they are guilty — that’s up to the courts to decide. If they are found guilty then the industrial manslaughter sections of the act come unto play.

Given that any prosecutions are criminal matters an issue will arise as to who pays the costs of defence. In the case of a corporation should it be the shareholders or is it the responsibility of the individuals on the boards?

In this case if there were prosecutions should it be the taxpayers that pay for the defence or should it come out of the pockets of those being charged?

If Kerri Judd and Colin Radford decide not to prosecute on the basis of “I don’t knows” then it undermines the whole work safe protection in Victoria. The perfect defence for everyone becomes “I don’t know”.