Acting in the national interest, a group of Australia’s top occupational health and safety lawyers has painstakingly trawled through the transcripts of the Jennifer Coate inquiry to discover which ministers and public servants may have breached Victorian Occupational Health and Safety (OHS) law.
They have concluded that four ministers, 16 public servants, the state of Victoria, four departments and the Trades Hall Council should be prosecuted.
It is a stunning conclusion from the Coate inquiry evidence. If the prosecutions are launched it would drastically change the government structure of Victoria.
Under Victorian law, as set out by the 2004 Steve Bracks OHS act, citizens can request WorkSafe to prosecute individuals.
Accordingly, acting on the advice of the lawyers, the executive director of Self-Employed Australia, Ken Phillips, has written to WorkSafe requesting the prosecutions.
Never before in the nation’s history has such a detailed and comprehensive set of prosecution requests ever been made.
But we are dealing with the worst industrial workplace accident in the nation’s history. More than 700 people have died, large numbers have been infected by the coronavirus as a result of governmental errors and bungles, and untold damage inflicted on the Victorian — and Australian — economies.
Accordingly, it does require actions that were never, ever contemplated by those who framed OHS laws.
WorkSafe chief Colin Radford must reply to the Phillips letter either stating that he will lodge prosecutions or, if not, Radford must state the reasons why he is not proceeding.
Radford does not have an easy task because he is a former press secretary to premiers Steve Bracks and John Brumby, and he knows well and is friends with many of those he is being asked to prosecute.
There is no reason why Radford can’t undertake the task because it will be the courts — not Radford — that must decide guilt or innocence. But if Radford feels he is too conflicted, then he should stand down.
Under the act, if WorkSafe will not prosecute, then Phillips can then put the same request to the Director of Public Prosecutions Kerri Judd QC, who also must either prosecute or set out her reasons. The reasons will need to be very good given the magnitude of the disaster. Radford is launching his own inquiry and he has much greater power than Coate and may discover much more evidence, which could result in further prosecutions.
As it now stands, four ministers have been alleged to have contravened four sections of the act, which are:
• Section 26, which — with great clarity — says that persons who manage or control workplaces must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health;
• Section 32, which says that persons who manage or control workplaces have a duty not to recklessly endanger persons at workplaces;
• Section 39 G, which says a person who is not a volunteer must not engage in conduct that is negligent; nor conduct that constitutes a breach of an applicable duty that the person owes to another person; nor conduct that causes the death of that other person; and
• Section 144, which sets out that if a body corporate (including a body corporate representing the Crown) contravenes a provision of the OHS act and that contravention is attributable to an officer of the body corporate failing to take reasonable care, the officer is guilty of an offence.
WorkSafe Victoria has been asked to prosecute 16 public servants on grounds covering some of the sections that apply to ministers. However, it’s been requested that all prosecutions directed at public servants include section 25, alleging they failed to take reasonable care for the safety of “others affected by your acts and omissions”.
Phillips concludes it is now clear that the occurrences, acts and omissions in this affair have to date resulted in more than 17,800 people contracting the COVID-19 virus, hundreds of people being admitted to hospital as inpatients and 765 people dying as a result of contracting the virus (as at September 27, 2020)
In other words: the credibility of Victoria and its system of law, as well as the OHS act itself, demands there must be no whitewash.
1. I set out the background to the WorkSafe letter in two earlier comments on the web site under the headings “Hotel quarantine inquiry: Victorian politicians caught in their own trap” and “Hotel quarantine inquiry: the power to probe the ‘don’t knows’”
2. For those that want to read the full letter to WorkSafe which includes the prosecution details here is the link.