Victorians to bankroll Covid liability test case

Victorian Premier Daniel Andrews. Picture: NCA NewsWire/Wayne Taylor

Some 500 Victorians – mainly small business entrepreneurs – have contributed $500,000 to finance legal action to determine via the courts whether 20 individuals should be prosecuted for their alleged part in the deaths of 801 people in the state’s hotel quarantine disaster.

The individuals named include four current or former cabinet ministers led by Victorian Premier Daniel Andrews; 16 senior public servants including the Police Commissioner, three government departments and the Trades Hall Council.

Almost certainly the legal process will extend over a year, taking it well beyond the next Victorian election. Accordingly, the 500-strong funding community has banded together, not to play politics but to demand that the court system of justice be allowed to decide on the innocence or guilt of the people who were identified in the Coate inquiry into the 801 deaths.

But to get to the stage of court declaration of guilt or innocence requires the Supreme Court, and possibly the High Court, to decide on the meaning of the occupational health and safety laws that were crafted by former premier Steve Bracks.

While politics may not be the aim, there is a political twist because the Supreme Court hearings could see the Premier, ministers and public servants identified by the Covid-19 hotel quarantine inquiry chaired by Jennifer Coate being subpoenaed to give evidence.

Apart from any drama created by these events, the cases may determine whether individual executives or directors should be prosecuted via OHS laws, or whether prosecutions should be confined to corporations or government departments and organisations.

As matters now stand, any individuals found guilty under OHS laws face the potential of a long jail sentences. It is also ironic that, shortly before the Covid-19 crisis, the Victorian parliament increased the maximum prison sentences to 25 years for OHS offences where industrial manslaughter is proved.

The government believed the previous maximum industrial manslaughter jail sentences were not long enough. They were aiming at company directors, top managers and small business people – not realising that cabinet ministers and public servants were equally vulnerable, depending on what the courts determine the legislation to mean.

The Bracks OHS laws made it easy for ordinary people to alert the head of WorkSafe Victoria and the Director of Public Prosecutions that an offence may have taken place.

In the case of the 801 hotel quarantine deaths, a public inquiry report from Coate set out a series of actions and “non actions” by individuals and departments that on the surface may have breached those OHS laws.

Using the Coates material, Self Employed Australia took up the invitation in the OHS laws and not only requested prosecution against the named departments’ ministers and public servants but, on the basis of the material, set out which sections of the act they were alleged to have breached.

Advising Self Employed Australia are some of Australia’s top OHS lawyers.

As they understood the act, WorkSafe Victoria – on receipt of a request for prosecution – had some nine months to conduct an investigation and communicate the results of that to the DPP, who would then decide whether the prosecution should be launched.

Self-Employed Australia’s advice was that WorkSafe and/or the DPP would need to give reasons for any non-prosecution and those reasons would be communicated back to Self Employed Australia.

WorkSafe interpreted the act differently and decided that its obligations under the Act would be satisfied if it launched the prosecution against the Department of Health but not against the four current or former ministers plus the 16 senior public servants.

Once WorkSafe launched the action against the Department of Health, it believed that all other matters were closed.

With the $500,000 raised from Victorians, Self Employed Australia is this week issuing an application for a writ of mandamus in the Supreme Court, which will attempt to determine whether the WorkSafe interpretation of the law is correct.

It won’t be easy because the government and WorkSafe will muster the cream of Victorian legal talent to argue their case.

An early step in the court case will be to determine whether a proper WorkSafe investigation of each of the individuals’ actions actually took place.

Self Employed Australia will subpoena each of the ministers and public servants named in the original request to determine whether they were interviewed as part of any investigation.

If they were not interviewed then that may show that there was no proper investigation, but it will be up to the court to decide the matter.

Almost certainly whichever party loses they will appeal to the full Supreme Court and again the loser of that case will almost certainly appeal to the High Court.

If that’s the way the case goes then it will be the High Court that makes the final determination but, in the process, it is likely that we will learn a lot more about prosecuting individuals and what the Bracks OHS laws actually mean. Given that most other states have workplace legislation that is similar to Victoria, this case has national implications.

If Self Employed Australia’s case is dismissed then there is a high likelihood that in all future major industrial accidents, where deaths take place, individuals such as directors, chief executives and top managers will not have liability. The liability will simply rest with the corporation or government organisation. And they cannot be jailed.