A group of business owners will launch a legal challenge against WorkSafe Victoria in bid to force the prosecution of Premier Daniel Andrews, Chief Health Officer Brett Sutton, ministers and senior bureaucrats over the state’s bungled hotel quarantine program.
An organisation known as Self Employed Australia is set to file a writ in Victoria’s Supreme Court following a September decision by WorkSafe to only lay charges against the Department of Health, meaning senior government figures will not face individual charges.
The escape of the COVID-19 virus from hotel quarantine between March and July 2020 led to the state’s deadly second wave, which claimed more than 800 lives and prompted the government to introduce strict stage 4 restrictions across Melbourne.
SEA spokesman Ken Phillips says the group lodged a complaint with WorkSafe in September last year, which he claims compels the workplace watchdog to investigate 27 different individuals or agencies including Premier Andrews, former health minister Jenny Mikakos and Professor Sutton.
If Mr Andrews and other individuals were successfully prosecuted, they could face jail terms or personal fines of hundreds of thousands of dollars under the Occupational Health and Safety Act.
However, previous legal challenges to public health orders and government responses to the pandemic have been largely unsuccessful over the past year, other than a temporary injunction granted to a group of Queensland police officers who refused the COVID-19 vaccine.
SEA is seeking access to documents exploring WorkSafe’s investigation of the potential culpability of the listed individuals.
“We want the rule of law to be applied. We’re not saying the people we have named are guilty, that’s obviously for the courts to decide. But our view, based on the Coate Report, is that the evidence is overwhelming that the entities and individuals we’ve named should be investigated with a view to prosecution,” Mr Phillips told The Sunday Age.
In September, WorkSafe charged the Department of Health, formerly the Department of Health and Human Services, with 58 breaches of the Occupational Health and Safety Act over the hotel quarantine program.
The department could face more than $95 million in fines over allegations it failed to provide a safe working environment for its employees and put non-employees at risk.
However, Mr Phillips accuses WorkSafe of refusing to comply with its statutory obligations.
“The OHS Act allows any person to lodge a requirement for WorkSafe to investigate with a view to prosecute, if after six months from an incident WorkSafe has not initiated a prosecution.
“WorkSafe had nine months to initiate prosecution [against individuals]. WorkSafe must provide its investigation to the Director of Public Prosecutions,” according to a document released by SEA to its members.
A WorkSafe spokesman defended its 15-month investigation of the hotel quarantine program, and insisted it had complied with all regulatory obligations.
“WorkSafe commenced a comprehensive investigation into Victoria’s initial hotel quarantine program in June 2020.
“WorkSafe has fully complied with all of its obligations … including by referring the matter to Victoria’s Director of Public Prosecutions for consideration in June 2021,” the spokesman said.
At the time, the DPP had confirmed it was satisfied that WorkSafe’s investigation was progressing appropriately, according to the WorkSafe spokesman.
Victoria’s failed quarantine program was the subject of an inquiry last year by former judge Jennifer Coate, who was unable to determine who had commissioned the use of private security guards, or who in the Andrews government had approved the plan, according to a report tabled in Parliament in December 2020.
At the time, Ms Coate warned her report would shock the public.
“The decision as to the enforcement model for people detained in quarantine was a substantial part of an important public health initiative, and it cost the Victorian community many millions of dollars.
“But it remained, as multiple submissions to the inquiry noted, an orphan, with no person or department claiming responsibility,” Ms Coate said in the report last year.
The Age contacted five lawyers who specialise in occupational health and safety but none were willing to speak publicly about the legal challenge to the WorkSafe investigation over concerns they could jeopardise existing or potential work from the government.
One Melbourne lawyer said the case brought by SEA against WorkSafe had “some legitimacy on first blush”.
Source: Sydney Morning Herald