The wheels of justice turn slow, it is said, but they grind exceedingly small. But bad laws throw a spanner in the works – at least, that’s what bad lawmakers hope.
Victoria’s Occupational Health and Safety Act is very bad law. It was enacted by former Labor premier, Steve Bracks, as an explicit “get the bosses” law. The law was designed to allow criminal prosecution of employers, even if they weren’t directly responsible for – or even aware of – breaches of OH&S.
As previously reported on The BFD, Labor’s own laws have come back to bite them, in the wake of the Andrews hotel quarantine disaster.
As allowed under the Act, a private citizen can request an investigation and WorkSafe Victoria is obliged to act.
In September 2020, as allowed under the Victorian Occupational Health and Safety Act, Self Employed Australia and its executive director, Ken Phillips, guided by advice from top Australian OHS legal experts, used the provisions of the act to request prosecution of 16 people including current and former cabinet ministers and public servants.
The investigation was always going to be a self-set trap that the Andrews government would find difficult to wriggle out of. A new development has escalated the repercussions dramatically.
Under Labor’s “industrial manslaughter” laws, WorkSafe had nine months to either prosecute on each of the 142 prosecutions that were requested or explain why it was not prosecuting. That deadline passed over a month ago. Self-Employed Australia has – as is its right under the Act – requested that Victoria’s Director of Public Prosecutions, Kerri Judd, review the WorkSafe investigative material and provide WorkSafe with her written advice as to whether or not she believes that WorkSafe should prosecute.
The act appears very clear. Give the actions of Self Employed Australia, if WorkSafe has not made a decision within nine months of receiving the initial request to prosecute, WorkSafe is required to send all its investigative materials to the Director of Public Prosecutions for her review and advice.
Although it’s a matter for the courts, on the surface, by not sending its investigative materials to Judd, WorkSafe appears to be in clear breach of its own act.
It also raises the question of whether Kerri Judd, as Victoria’s Director of Public Prosecutions, is also in danger of being in breach of the act by not giving the answers she is required to do under the act.
And suddenly, given the grave issues that are raised, it will mean that Victoria’s Solicitor-General must also be involved.
Victoria’s Solicitor-General is Rowena Orr: nicknamed “Shock and Orr” after her grilling of the chairs and CEOs of Australia’s largest banks during the banking royal commission.
Last week, DPP Judd wrote to the Solicitor-General, advising that she was unable to make a determination as requested by Ken Phillips and Self-Employed Australia. Judd wrote that “The matter remains under investigation by WorkSafe Victoria. I cannot make a determination in this matter until I have reviewed the investigative materials” and “I have made enquiries as to the progress with WorkSafe Victoria. Based in these enquiries I am satisfied that the investigation is progressing appropriately”.
The sensation of stalling tactics is overwhelming. The Victorian public service bureaucracy seems to be playing for time, and by doing so, risks ensnaring the state’s two most senior law officers in its own tangled skein of arse-covering.
To have the state’s two most senior legal officers in such a horrible bind is not sustainable and if it was to continue for an extended period it would break down the force of law in our second most-populous state.
The situation is made even more bizarre by the fact that the act provides that there is a two-year prosecution time limit. We presume that the time meter started in June 2020 but it could be taken back to March. Many believe that the “time clock” is the way WorkSafe, the politicians and the public servants hope to solve this dilemma.
The Australian
Daniel Andrews has already been soft-soaped by one made-for-purpose inquiry. No doubt Andrews and his minions are hoping that if they can fudge and obfuscate long enough this time, the whole thing will just go away.
They might be in for their own dose of “Shock and Orr”.
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