Hotel quarantine inquiry: Victorian politicians caught in their own trap

The Victorian politicians and public servants caught in the hotel quarantine saga do not have amnesia but rather have a genuine fear that any admission of liability will cause them to be prosecuted under Victorian law. If found guilty they face a potential jail sentence of up to 25 years and/or a fine of $16.5m.

Never before in Australian history have so many cabinet members and senior public servants faced such a danger so it’s no surprise that they all keep saying “I don’t know”.

The weekend resignation of former health minister Jenny Mikakos’s included a statement that she “strongly disagreed” with the Premier’s evidence. She has not admitted accountability.

Some of those involved in the quarantine fiasco were actually part of the plotting that designed one of the most vicious industrial manslaughter acts in the Western world. The legislation aimed to jail corporate boards for long periods if there was a death in their workplace or it could be linked to actions that took place in their workplace, irrespective of their responsibility or control.

The legislation was passed in November last year and its wide powers and severe penalties have not been tested.

But the Victorian public servants and politicians know its power intimately and have every reason to be scared because they are set to be the test case.

And public servants and politicians around Australia are suddenly alarmed at what appears set to happen in Victoria, so are checking their own vulnerability.

First to react are the WA government politicians and public servants, who are planning Victorian-style industrial manslaughter laws to jail boards and executives. Suddenly the WA politicians and public servants realise they could be jailing themselves, so they have moved to exclude government actions from the proposed law’s ambit. It makes what the WA government is looking to do a national joke.

The general view in the Victorian community is that the senior politicians and public servants will never be prosecuted despite what legislation might say — their “mates” will look after them.

In theory that might seem right, but the legislation is clear and the high calibre of the people who will make the decisions means that the vulnerable public servants and politicians are right to warn their families of what might be ahead.

I must emphasise that it is one thing for a public servant or politician to be prosecuted and another to be convicted.

It’s important for all Australians, and certainly Victorians, to understand just how the Victorian occupation and health/manslaughter system works.

When Steve Bracks was Victorian premier, he passed some of the best occupational health and safety (OHS) rules in the country. The first part of the Bracks OHS legislation was that he made it easy for ordinary people to alert the head of WorkSafe Victoria and the Director of Public Prosecution that an OHS offence may have taken place. And once such notification is made to the WorkSafe chief he must either prosecute or publicly give good reasons for not prosecuting.

If the WorkSafe chief rejects prosecution the case can be submitted to the director of public prosecutions, who again must either proceed with prosecution or publicly explain why.

The head of WorkSafe Victoria is Colin Radford and the Director of Public Prosecutions is Kerri Judd. Clearly they must assess the situation but, given the enormous amount of damning evidence uncovered in the Jennifer Coate inquiry, for Radford and Judd not to launch prosecutions is almost inconceivable.

Under the OHS Act it is the responsibility of the public servants and politicians to provide a safe workplace not just for those in the workplace but for others who might be impacted by what happens in that workplace. Hundreds of people died as a result of the events in the hotel workplace. This is almost certainly the nation’s biggest OHS catastrophe.

I should emphasise a prosecution does not mean that the person charged is guilty but an OHS offence is a criminal offence. But to be convicted under Bracks’ OHS it must be shown that the person had some form of control and/or responsibility for what happened. For the recently passed industrial manslaughter laws to be triggered, there must first be a conviction under the OHS Act. The actual OHS Act is fair and allocates blame on the basis of control and responsibility.

Accordingly, if you are a director of a company that, say, operates a farm and you made sure that all equipment was properly maintained, the staff were properly trained and the right safety rules were set in place, then if a staff member behaves badly causing a death or serious injury board members would not be liable under OHS.

But under the industrial manslaughter Act the board members who acted properly are still likely to face long jail sentences.

The WorkSafe chief, Colin Radford, has rightly launched an inquiry into the quarantine affair. In normal circumstances his inquiry would be the only one undertaken (apart from the coroner) but, in this case, a separate public inquiry has taken place and a vast amount of evidence has been publicly assembled so there is no way there can be a cover-up .

Part of the problem facing Victorian ministers and public servants is that under Daniel Andrews the Victorian public service administration was vastly increased in size and sets of complex interrelated responsibility networks were set up to cover many issues. All around the state, in areas outside of those raised by COVID-19, people dealing with the Victorian government find it incredibly difficult because responsibility is divided into so many departments and committees. Very often only the Premier can sort through the morass.

When this system was applied to a crisis, instead of responsibility being concentrated, it was spread over a large number of people, which greatly widens responsibility, firstly under the base OHS Act and then under the industrial manslaughter additions.

Those who have studied the Victorian situation believe that the only way widespread prosecutions can be avoided is for Radford and Judd to give reasons for non-prosecution that will create precedents that destroy both the industrial manslaughter and the OHS rules.

The government and public servants have been trapped by their own actions and that is why they are so scared. You could see the fear in their eyes when they gave evidence to the Coate inquiry.