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Victorian Workcover asked to prosecute over Andrews govt hotel quarantine fiasco

On 1 July this year Victoria added a new industrial manslaughter law to the Occupational Health and Safety Act 2004 (Vic) (OHS Act).

It applies to the government, officers, self-employed and organisations.

There are huge penalties including fines of $16.5m for employers and jail terms of up to 20 years and fines of up to $1.65m for officers whose actions or omissions:

  • cause the death of a worker or member of the public;
  • involve a breach of an OHS duty;
  • were negligent.

The criminal negligence standard applies, ie where there is a "great falling short of the care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in, and involves a high risk of death or serious injury or serious illness".

Under the new laws, senior officers could be liable (in addition to the employer) where they are negligent by failing to take reasonable steps on workplace safety to prevent fatalities, including managing mental injury that leads to suicide.

Now here's Self-Employed Australia's report to the Authority.

SeA-Letter-to-Workcover-180820

SeA-Letter-to-Workcover-180820

This from the organisation behind this prosecution request, Self-Employed Australia.

We trigger OHS investigation of Victorian Covid-19 hotel quarantine mess

Wednesday, August 19, 2020

Yesterday we wrote to the Victorian WorkCover Authority requesting them to investigate the Covid-19 hotel quarantine mess for possible breaches under the Victorian work safety laws (Occupational Health & Safety Act). Section 131 of the Act allows us to lodge such a request on the Authority who, under the Act must investigate and respond.

The Victorian government has pretty much admitted that the second Covid-19 wave outbreak happened because of the botched hotel quarantine mess in March. Hundreds of deaths have occurred following this.

If anything like this sort of scenario had happened in a private-sector business, we could be sure that a massive investigation would be undertaken by the Victorian WorkCover Authority. The investigation would look to see if prosecution should occur under the Victorian OHS Act, including application of the new manslaughter provisions. But the WorkCover Authority has done nothing over the Covid-19 disaster.

The Victorian government has established an Inquiry into the failures. However, all the Inquiry can do is write a report. The inquiry does not have the investigative and prosecutorial powers available to it that the WorkCover Authority has on OHS matters.

The core facts, well recorded in the media, are that:
  • The Victorian government had advance knowledge of the need for quarantine.
  • The Victorian Police, Corrections Victoria and the Australian Defence Force (ADF) have high level experience, training, capacity and authority in the area of detention.
  • The Victorian government requested ADF assistance, which was ready to go, but the request was withdrawn a day later.
  • The government instead used private security firms unsupported by either police, prison staff or the ADF.
  • The private security personnel on the ground in the hotels had neither the training, experience, skills, nor the authority to manage people in detention.
  • The Covid-19 outbreak followed.
Everything points to the probability of recklessness in the chain of command and control of decision-making related to the quarantines.

This Covid-19 outbreak is arguably the largest mass deaths event resulting from a workplace incident in Australia’s history. The Victorian WorkCover Authority has a statutory duty to investigate with a view to proceeding to prosecution if warranted. From all available information the Authority has done nothing.

The Authority is required under the Act to investigate and respond to us. If the Authority fails to undertake its statutory obligation under the Act, we will apply for a court to order the Authority to undertake the required investigation.

You can help. We anticipate that we will need to seek court orders.
 
You can contribute to our legal fighting fund for this action here.

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