There has been a concerning development with the process to prosecute the Victorian Government over the 2020 Hotel Quarantine breaches that lead to 801 deaths in Victoria.
By way of background on 29 September 2020 Self Employed Australia wrote to WorkSafe Victoria triggering provisions under the OHS Act. This effectively required WorkSafe to investigate for breaches of work safety laws by the government.
As of June this year WorkSafe had failed to initiate the prosecutions, even though WorkSafe say they been investigating for more than a year.
Triggering further provisions under the Act, on 29 June 2021 SEA wrote to WorkSafe requiring them to refer their investigation to the Victorian Director of Public Prosecutions. This then requires the DPP to review the investigation and make prosecution recommendations.
We’ve been waiting 6 weeks for action.
Then this. Last Friday 5 August WorkSafe emailed saying that they have not completed their investigation. Further that the DPP has written to WorkSafe saying it (WorkSafe) has not provided the DPP with the investigative materials. Here’s the correspondence.
What does this mean?
Under the law, as of 29 June 2021 WorkSafe must effectively supply to the DPP a copy of its investigation. The DPP must review the investigative material supplied by WorkSafe. The legislation requires WorkSafe to send the investigation materials, full stop. That is, even if the investigation is not complete, the Act effectively requires the materials to be sent.
Legal advice is that the failure of WorkSafe to send their investigation to the DPP means that WorkSafe has failed to comply with its legal obligation.
Further, the DPP has been put in a position of being unable to comply with its legal obligation (to review the investigation material) because of the failures of WorkSafe.
The issue now takes another step beyond that of the need to prosecute for breaches of work safety laws. The rule of law in Victoria is on public trial.
For the rule of law to have any meaning in society it is essential that, at the highest levels of government, law authorities comply with the law. They cannot choose when to comply with the law and when not to comply. To do so threatens the rule of law in society.
That WorkSafe is failing to comply with its legal obligations raises huge concerns about WorkSafe. That WorkSafe has compromised the Director of Public Prosecutions by putting the DPP in a situation where it is failing in its legal obligations is very worrying.
Here’s the relevant section of the Victorian Occupational Health and Safety Act s131:
(3) If the Authority advises the person that a prosecution will not be brought, or that it has not brought a prosecution within 9 months after receiving the request, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.
Ken Phillips is Executive Director of Self Employed Australia
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