Court rejects ‘merit’ of WorkSafe Victoria probe into Andrews, Sutton and Mikakos over hotel quarantine

Court rules a lack of ‘merit’ for watchdog to investigate Dan Andrews, Brett Sutton and Jenny Mikakos over roles in state’s bungled hotel quarantine program.

Victorian Premier Daniel Andrews. Picture: NCA NewsWire / Nicki Connolly

Daniel Andrews, Brett Sutton and Jenny Mikakos will not be investigated by WorkSafe Victoria over their roles in the state’s bungled hotel quarantine program after a Supreme Court Justice ruled there was a lack of “merit” in doing so.

Self-Employed Australia chief Ken Phillips applied to the Supreme Court in February this year to issue a “writ of mandamus” – an order to direct a decision-maker to perform their mandatory duties correctly – to WorkSafe, asking them to investigate the Premier, Chief Health Officer and former health minister, among others, over their role in the program, which was mismanaged and led to 801 deaths.

Mr Phillips said he was forced to ask the Supreme Court to issue the order after WorkSafe failed to reply to his requests to do so.

But on Friday, Justice Michael McDonald threw out the case.

Victoria’s Chief Health Officer Brett Sutton. Picture: NCA NewsWire

Former health minister Jenny Mikakos. Picture: AAP

“The significant potential prejudice to the individuals identified in the first request weighs against (Self-Employed Australia) being granted an extension of time,” he said.

Another issue Judge McDonald had to rule on was whether or not Mr Phillips filed his request on time and if there were special circumstances which would warrant an extension if he did not.

As well, Mr Phillips had 60 days after September 29, 2021, when WorkSafe advised him its investigation into hotel quarantine had concluded and resulted in a prosecution against the Department of Health.

Mr Phillips only requested the court compel WorkSafe to carry out further investigations on February 14, 2022.

On that matter, Judge McDonald said the request was filed too late and his reasons for requesting an extension lacked “merit”.

“The 60-day period expired on 28 November,” he said. “There would be little, if any, utility in the grant of an extension of time. The proceeding will be dismissed.”

In his reasons published on Friday, Judge McDonald said Mr Phillips did not put up a strong case as to why he should be granted an extension.

“(Self-Employed Australia) has not established special circumstances warranting the grant of an extension of time,” he said.

At a previous hearing, Judge McDonald said it appeared to be clear that the watchdog had in fact investigated all the parties and they had also been canvassed by former family court judge Jennifer Coate in the COVID-19 hotel quarantine inquiry.

Then, he said if he decided to grant Mr Phillips an extension of time and ultimately a “writ of mandamus” they could face lengthy consequences.

“Industrial manslaughter … (has a) 25-year (jail term),” he said.

“This is a very unusual case from that perspective. It is a very significant impact.

“(On the) grounds of an application for an extension exposes the other individuals to be prosecuted.”

A WorkSafe statement issued in September last year said the health department failed to provide a safe working environment and charged the health department with 17 breaches of the OHS Act.

The department was also slapped with another 41 breaches because it failed to ensure contractors were not exposed to risks.