Victorian premier Daniel Andrews looks set to be hoist on his own petard in the most spectacular fashion.
In 2004, the Bracks Labor government enacted strong occupational health and safety legislation. The Bracks legislation made it easy for individuals to trigger action for breaches of OH&S – with the clear proviso that the person or group can only be prosecuted if they were in control of the risks involved in the actions that led to injury or death.
But that wasn’t good enough for Andrews, or more correctly, the union heavies who pull the strings of his government. Under union pressure, Andrews enacted “industrial manslaughter” clauses which meant that people not in control of risk to be convicted and jailed. The plain aim of the new laws was to jail bosses for the actions of the underlings.
And, oh boy, is that about to come back to bite Andrews on the bum.
Parts of the Victorian public service and members of Daniel Andrews’ cabinet are going to be exposed to the danger of the state’s tough penalties for unsafe work practices that contribute to deaths.
The first legal step to determine whether community standards apply to the government actions in the COVID-19 pandemic was taken yesterday.
Andrews’ big mistake when he enacted the laws was neglecting to insert a sneaky clause exempting government ministers and public servants from their own rules.
Now, thanks to skilled work by one of Australia’s top occupational health and safety lawyers, the precedents that determine the power and impact of this Act will be established via actions against Victorian public servants and cabinet ministers[…]
The unique part of the act is that if any individual believes that there has been a breach of the OHS law they can ask WorkCover to investigate, to determine whether there should be a prosecution.
And under law if there is no prosecution, WorkCover must in writing tell the individual why there is no prosecution. The applicant can then ask to refer the matter to the Director of Public Prosecutions (DPP).
And again the DPP must either prosecute or give an answer with reasons as to why there is no prosecution.
Surprise, surprise, an individual with deep enough pockets to get a good lawyer behind them is testing the Andrews laws.
Backed by [a top OHS lawyer] Ken Phillips, executive director of Self-Employed Australia has written a letter to the Victorian WorkCover Authority that contains the following sentence:
“I consider that the development, planning, management and implementation of the Victorian Government COVID-19 Hotel Quarantine Containment Program, the planning phase of which commenced in late January or early February, 2020 (such time only specifically ascertainable by investigation) instigated, managed or controlled by the Victorian Government, various Victorian Government organisations and agencies including their contractors and staff, constitutes several offences contrary to the OHS Act in that the health, safety and welfare of employees and others persons was put at risk contrary to, but not limited to, sections 21, 23, 26, and 32 of the OHS Act.”
There is at least a prima facie case for negligence on behalf of the Victorian government. Guards were hired by the most ad hoc procedure imaginable, given no proper training. And that was just the start of the concatenation of failures that led to an entirely predictable outcome: the deaths of hundreds of people when the virus spread among the community.
Of course, it’s almost certain that the government’s pet inquisitors in the WorkCover authority will do their best to protect them.
My guess is that given their close relationships with the government, WorkCover will either try and delay the action or set out why they’re not making a prosecution. But I could be wrong.
If WorkCover does reject prosecution then the DPP will have to do the same thing to avoid a trial. And, if and when they do that — given the events are so large and, at least to an outsider, so blatant — the DPP will in fact be neutralising the manslaughter legislation and perhaps even making a joke of the health and safety rules of WorkCover itself.
Andrews has escaped such damning scandals before – the Red Shirts scandal, for instance – but, given the ugly mood among Victorians enduring a second, and worse, lockdown, this may be a scandal too far.
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