In a classic Gilbert and Sullivan-style tragedy one arm of the Victorian government is suing another arm for up to $95 million over the hotel quarantine disaster.
The legal fees will be enormous. No office bearers were involved in the writs so it’s like suing the gun rather than the person who pulled the trigger. Victoria has become the laughing stock of the nation’s legal fraternity. But 801 people have died and any government that plays these games also breaks down the rule of law.
Not surprisingly the consequent Victorian regulatory morass is contributing to a decline in safety standards in the state’s non-Covid activities and because Victoria leads the nation in safety regulation the Victorian safety decline is spreading to the rest of the country. I have more work to do on that subject.
Finding herself in the middle of the Gilbert and Sullivan tragedy 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.
But there is good news. 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.
They are being co-ordinated by Self-Employed Australia and Ken Phillips. Victorians of all political persuasions have flooded Self-Employed Australia with money to fund a radio advertising campaign but the Nine Network blocked the TV advertisements. Then the Victorian government’s WorkSafe sued the Victorian government’s health department. Nine will now let the advertisements run. But news of the Nine actions spread around social media and viewing of the TV advertisements on the Self-Employed Australia website exploded.
The battle for full implementation of the OH&S act has a long way to go and everyone involved is ready for the hard fight ahead.
I have written many commentaries on this tragedy but I want to take readers through the current situation step by step.
* Under work safety laws the definition of a worksite is very broad and the hotels were clearly worksites.
* Work safety laws are about protecting everyone in the community, not just 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 inquiry into the hotel quarantine disaster by Jennifer Coate was skilfully bagged by the Victorian government’s media brigade but in fact it was one of Australia’s most brilliant reports describing a disaster. Despite the succession of “I don’t know” statements from office bearers, Coate discovered what actually went wrong. She described how at the most senior levels of in 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”. The management of infection control in the hotels themselves was chaotic.
Coate blames “lack of proper leadership and oversight” for the infection outbreaks and described the program as a “catastrophe waiting to happen” and a “disaster that tragically came to be.”
* 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
* Under Victorian law citizens can request WorkSafe prosecute individuals.
* The group of top occupational health and safety lawyers painstakingly trawled through the transcripts of the Jennifer Coate inquiry to discover which ministers and public servants may have breached the OH&S laws. They concluded that four ministers, 16 public servants, the state of Victoria, four departments and the Trades Hall Council should be prosecuted. Self-Employed Australia and Phillips detailed the reasons for prosecutions. Of course anyone prosecuted is presumed innocent.
* 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.
* Instead WorkSafe launched the prosecution of the Department of Health but not any of the individuals named by Self-Employed Australia, which will now try and seek the reasons for the non prosecution of the individuals it named, as would appear to be its right under the act.
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.
* Fascinatingly the WorkSafe prosecution deals with offences allegedly committed between March and June 30, 2020. If individuals are prosecuted and found guilty they can receive jail sentence is as well as fines. Victoria introduced industrial manslaughter laws in 2019 that carry jail sentences of up to 25 years. But that legislation only applies to offences committed after June 30, 2020.
It remains to be seen whether WorkSafe can withstand the growing public demand for the prosecution of individuals.
The most obvious course of action for Self-Employed Australia is to take the matter first to the ombudsman (which has been done) and then go to the Supreme and High courts.
But such a legal battle will cost many millions because the State of Victoria will throw all its resources into the court cases. The donations have been generous but they are not sufficient to go to the courts.
It may be that the only resolution to the matter will be public opinion and the election in November next year.
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