In late September this year efforts bore fruit to require WorkSafe Victoria to prosecute government agencies and individuals over the 2020 Victorian hotel quarantine disaster and 801 deaths.
WorkSafe Victoria announced that it is prosecuting the Department of Health. This prosecution demonstrates that the one-year-plus campaign by Self-Employed Australia (SEA) was totally correct. Without that campaign the prosecution would almost certainly not be occurring.
But WorkSafe claims it doesn’t need to do anything else. It’s refusing to prosecute responsible individuals, such as the Victorian Premier. That’s not good enough. It’s like prosecuting a gun rather than the individual who pulled the trigger.
At SEA we’ve decided that we now have no option but to take WorkSafe to Court. We have organised a top legal team for this purpose. The legal strategy is set. But this will be a hard and expensive legal battle. The cost will be huge in legal fees. Now we have set our sights on raising the needed money.
The legal avenue open to us is fairly narrow in one respect. We say that in not prosecuting individuals WorkSafe must refer the investigations to the Victorian Director of Public Prosecutions. WorkSafe refuses. It has said to us “WorkSafe is not required to provide reasons ” and told us that we “may wish to seek independent legal advice” So we have.
Where the issue becomes bigger is that once WorkSafe’s investigations have been handed to the DPP, the DPP must review and make prosecution recommendations that the DPP gives back to WorkSafe. Here’s the kicker. WorkSafe must then provide those recommendations and the investigations to SEA. To a layperson, at least, the plain reading of section 131 of the Occupational Health and Safety Act says that. WorkSafe takes a different view.
In other words, the process inevitably leads to public disclosure of WorkSafe’s detailed investigations and reasons for prosecuting or not prosecuting individuals. We say such transparency should occur. But WorkSafe says it doesn’t have to follow this process.
To date, SEA has achieved a first step prosecution without needing court action. There have been 38 pieces of correspondence between Self-Employed Australia and WorkSafe over the last year. In addition, during September, SEA wrote to the Director of Public Prosecutions, the Attorney-General, Shadow Attorney-General, WorkSafe Minister, Shadow WorkSafe Minister, Ombudsman and Solicitor General. There has been careful legal guidance at every step.
Based on legal advice the next steps include an application to the Victorian Supreme Court under Section 8 of the Administrative Law Act 1978 (Vic) to require WorkSafe to provide the reasons for its decision. Focus would be on the reasons (a) why charges have not been brought against each of the named individuals we supplied to WorkSafe and (b) why the matters pertaining to each of the named individuals have not been referred to the DPP.
Further, application can be made to the Victorian Supreme Court for a writ of mandamus (court order) requiring WorkSafe to comply with its statutory obligations.
Given WorkSafe’s refusal to comply with its (s131) statutory obligations to date, SEA must move forward on the assumption that WorkSafe will use every technical legal avenue and argument to defeat SEA’s applications as outlined above. The Act’s s131 provisions are, we are advised, untested before the Courts. In initiating this ‘rule of law’ action, SEA must assume that, ultimately, an appeal to the High Court is highly probable.
It does seem incredible that this is the situation. But of course, this is Victoria in 2021. No place on earth has experienced the degree of draconian, authoritarian response to Covid as have the people of Victoria. Zero transparency around the reasons for such draconian action has been a hallmark of the government. The approach and attitude of WorkSafe is consistent with that of the government.
What’s the end result we are after? Self-Employed Australia simply wants WorkSafe to do its job. That is, to investigate the following individuals, at least, and prosecute as and where required. We’re not saying that anyone is guilty. That’s for the courts to decide.
Here’s the list: Daniel Andrews, the Premier of Victoria. Jenny Mikakos, The former Health Minister. Kym Peake, Secretary for Health and Human Services. Melissa Skilbeck, DHHS, Deputy Secretary, Regulation, Health Protection and Emergency Management. Andrea Spiteri, DHHS, Executive Director, Emergency Management. Jason Helps, DHHS, Deputy Director, Emergency Management. Brett Sutton, Chief Health Officer. Annaliese van Dieman, Deputy Chief Health Officer. Michelle Giles, Deputy Public Health Commander. Simon Crouch, DHHS, Senior Medical Adviser, Acting Deputy Chief Health Officer. Noel Cleaves, DHHS, Manager Environmental Health, Regulation and Compliance.
In a democracy, where the rule of law is supposed to apply, it should apply regardless of the status, power and position of individuals. The institutions that enforce the law need to be transparent in their enforcement. In this case, it looks like it’s going to take a lot of private-sector money to have these principles applied in the face of the massive power of the State.
Ken Phillips is Executive Director of Self-Employed Australia.
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