Victorian Director of Public Prosecutions Kerri Judd on Monday received a 20,000-word, comprehensive report arguing she should begin prosecutions against four current or former cabinet ministers and 16 current and past public servants for their role in the 2020 pandemic hotel quarantine disaster.
But the document did not come from WorkSafe Victoria but rather a team of Australia’s top occupational health and safety lawyers brought together and co-ordinated by Ken Phillips, chief executive of Self Employed Australia.
The lawyers and Phillips based their detailed report on the sworn evidence given in the Jennifer Coate inquiry plus Coate’s own comments.
PDF: The case for the prosecution
WorkSafe has spent more than a year investigating the disaster. Under the Occupational Health and Safety it appears to have not delivered its “investigative materials” inside its statutory deadline.
If WorkSafe ever makes a report to DPP Kerri Judd then she, alongside Victoria’s Solicitor-General Rowena Orr, will be able to compare the WorksSafe “investigative material” with that prepared by the OHS experts and Phillips.
Judd and Orr are among Australia’s finest silks. If Judd was to make recommendations I am supremely confident in the integrity of Judd and Orr to put aside the undoubtedly enormous political implications involved and uphold the standards and traditions of Australian law.
Jennifer Coate produced an incredibly detailed 900-page report which was written in language that was difficult to read. Few read the report in full and therefore did not appreciate the huge reservoir of factual revelations hidden within the massive document.
Coate appeared to focus the thrust of her legal conclusions on conventional law and so found it difficult to reach conclusive conclusions.
Coate never looked at material she had assembled under sworn evidence or her comments from the point of view of the OHS legislation. Phillips, with the help of the lawyers, spent many weeks forensically separating out the Coate material that relates to the OHS laws. The facts Coate had uncovered stunned the OHS lawyers, who found the detail unprecedented and allegedly damning.
Phillips points out that the OHS Act places duties on employers, employees and others who have control and management of workplaces. On their web site WorkSafe says: “The OHS Act seeks to protect the health, safety and welfare of employees and other people at work. It also aims to ensure that the health and safety of the public is not put at risk by work activities.”
Offences under the OHS Act are indictable criminal offences and carry serious penalties - some including lengthy terms of imprisonment.
With the backing of the lawyers, Phillips alleges: “The Victorian government, and Victorian government departments and senior bureaucrats involved in the hotel quarantine program failed to provide systems of work that were safe and without risks to the health of their employees and to the health of the Victorian public.”
The material presented to Judd shows that the Coate inquiry claims that it was management failures, starting at the highest levels of government in Victoria, that caused the outbreaks. Those failures amount to breaches of the Victorian work safety laws and require prosecution of the government.
However Phillips and Self Employed Australia emphasise that “they do not offer a view on whether prosecution would result in a guilty finding or otherwise. That is for the courts to decide”.
What makes the occupational health and safety rules different to conventional law is that a person can commit and offence by what they do not do as well as what they actually do.
So, people occupying the position of chairman, chief executive, prime minister or premier (plus boards, cabinets and senior executives) have very clear obligations under the clauses in the act. They cannot escape the consequences of not performing those obligations by simply saying they delegated or ignored the task.
In the Coate inquiry, under oath, the Premier of Victoria stated he did not consider who was going to monitor compliance with quarantine directions. It was not something to which he would “ordinarily turn his mind”. He considered risk management to be an operational matter that he left to others.
If the courts hold that a premier is allowed to delegate that authority, then the whole senior management thrust of occupational health and safety law in Victoria and possibly Australia will be changed.
Nationwide there are clear obligations on corporate and government chiefs, stating that they cannot avoid responsibility for what happens down the chain by simple delegation. The report reveals in great detail what actually happened in hotel quarantine in Victoria, including the squabbles between public servants, the incorrect delegation of responsibility by the public servants and the role of ministers in this affair.
Judd will not be able to use the report itself in any prosecution, but she will be able to call to the courts the people who gave their evidence to Coate under oath. They will either confirm what they said in the inquiry or possibly be subject to a perjury action.
Coate herself can be a key witness given she described the program as having a “lack of proper leadership and oversight”, a “catastrophe waiting to happen” and a “disaster that tragically came to be”.
The program’s design, combined with its dysfunctional management, was the cause of the Covid-19 virus escaping the hotels with the deaths and injury that followed.
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