Flat White

Is WorkSafe doing its job?

29 March 2022

12:00 PM

29 March 2022

12:00 PM

The effort to prosecute the Victorian government – including the Premier and his ministers, over the 2020 Hotel Quarantine disaster – has now made its way to the Victorian Supreme Court.

On February 14, 2020, we, Self Employed Australia, lodged an application for a writ of mandamus against the Victorian WorkSafe Authority. See these links for the writ application and supporting affidavit.

The application to the court asks for a Court Order to require WorkSafe to do several straightforward things.

By way of background, WorkSafe is prosecuting the Victorian Health Department for breaches of work safety laws to do with the Hotel Quarantine disaster. WorkSafe says that because it is prosecuting Health, it doesn’t have to prosecute anyone else or do anything else.

Our application says that under the work safety laws, WorkSafe must supply to the Victorian Director of Public Prosecutions materials from its investigations into each of the other 26 individuals and departments we have named as requiring prosecution. If WorkSafe chooses not to prosecute those additional 26 persons and entities, it must give reasons why they are not prosecuting them.

Our writ of mandamus asks the court to look at the law and decide who is correct – us or WorkSafe. That is, does WorkSafe’s prosecution of the Health Department satisfy WorkSafe’s legal obligations? Or does WorkSafe have an obligation to act on our 2020 application to prosecute the other 26 individuals and entities we originally named?

This perhaps looks like a small legal procedural step, but in fact the implications are vast. For example, our intention is to subpoena a considerable number of individuals, including the Victorian Premier and ministers to question them over WorkSafe’s investigations.

The question must be addressed, is WorkSafe doing its job correctly at law or not? The court will decide.

Just recently, the first ‘Directions’ hearing was conducted with an ‘Order’ issued setting out dates by which both Self Employed Australia’s and WorkSafe’s lawyers are required to lodge documentation. That is, the legal ‘administrative’ process is now unfolding that will eventually lead to a court hearing. The next Directions hearing is listed for July 27, 2022. It’s understood that a court date is likely to be set at the July 27 hearing. Here’s the Order setting out the dates.

After all, this is the long haul phase of the legal process including the effort to raise membership funding for the case, securing the legal team, and initiating the legal process. There won’t likely be any major ‘new’ developments to announce as this process works through. So – ‘sorry’! Nothing ‘dramatic’ for some time!

This effort is being funded entirely through Self Employed Australia membership enabling funding of both the legal effort and the necessary related general campaigning. With the budget secured for the anticipated legal costs, membership funding for the broader, supportive ‘Not Above the Law’ campaign continues.

As this is now the ‘long haul’ legal process, it’s good to be reminded of why this effort should be made. Remember that, at this stage, the legal action seeks to require WorkSafe to do its job and explain why it is only prosecuting the Department of Health and not the individuals we say should also face prosecution.

Victoria’s top radio journalist, Neil Mitchell, probably best explained what concerns the community.

On October 4, 2021 Neil said the following on Melbourne radio 3AW:

‘… this enormously controversial decision not to prosecute personally, Daniel Andrews or any of these ministers, over the catastrophic breaches in hotel quarantine.’ And later ‘…raise crucial questions that must be answered about the process that led to the decision not to prosecute personally, but only go after the health department as an entity.’ Mitchell asked, ‘Who made the decision not to prosecute the Ministers or the heads of departments or in fact the Premier?’

Our Supreme Court action cuts to the heart of the ‘enormously controversial decision not to prosecute personally, Daniel Andrews or any of these ministers’. As far as we’re concerned, we’re not only fighting for justice but also for our democracy. No one should be above the law.

Ken Phillips is Executive Director of Self Employed Australia.

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