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Could Dan Andrews face industrial manslaughter investigation?

Thursday, August 13, 2020

SEA Executive Director Ken Phillips has an article in today's Spectator discussing the application of Victorian Worksafe laws to the hotel quarantine mess. In this special blogpost we republish the article in full:

'Will Victoria’s quarantine disaster see ministers – or their bureaucrats – in the dock under OHS or industrial manslaughter laws?'

It’s hard for Victorians not to be angry over the Covid-19 crisis. You can almost feel the widespread fury directed primarily towards Premier Dan Andrews.

The hotel quarantine failures of earlier this year are largely recognised for the outbreak crisis. But who is to blame? Should or will anyone be prosecuted? They are many questions.

Should the individual security guard/s who allegedly had sex with quarantined hotel ‘inmates’ face jail? Are security guards who let people out for shopping or a smoko at fault? Should the security firms and their managers be liable for bad managerial control of the guards?

Who stopped the use of police and Australian Defence Force personnel to control the quarantines and why? Are they to blame?

Top bureaucrats warned senior health officials of hotel quarantine problems in March. Nothing was done. Are health officials to blame? Did the ‘top bureaucrats’ fail to follow up? One nurse alleges that health officials intentionally relaxed the quarantine rules.

The questions multiply and will presumably be investigated by the Coate inquiry into the hotel shambles. But will the inquiry only reveal the superficial causes of the crisis? Or will it dig deeper into the underlying political structure through which Victoria is now governed? This could expose an even greater truth about the crisis.

It is well understood in Melbourne business circles that if you want to do any business with the Victorian government, you need cosy relationships with unions. This involves union–controlled agreements, payments to union superannuation and other funds, attendance at costly union and Labor fund–raising functions and so on. It’s all perfectly legal on the surface.

But it goes further—extending to cosy relationships with the Labor network of law firms, financial institutions and more. This is the modern Melbourne ‘establishment’. It’s not fat white men smoking cigars in private clubs. Instead, it’s socially aware, ethical spouting entrepreneur types drinking craft beer in inner-city pubs.

In effect, the Victorian socialists have become capitalists. And they are rich. At the centre is the Labor Party machine which politically cements the establishment’s structure. It’s all perfectly legitimate on the surface and dominant since around 1999.

It’s worked. It’s made Melbourne a vibrant party town. Until coronavirus.

The downside of such an overpowering business-union-political establishment has been an arguable corruption of the processes of Victorian governance. For anyone doing business with or near the government, it’s been necessary to be in or near the ‘establishment.’

This need for proximity means that when government work and contracts are allocated what really wins the work is establishment links. The expected ‘at arm’s-length’ public service processes of control of, and accountability for, work are diminished. This dislocates responsibility, transparency and effectiveness within the public service.

In its micro form, even junior public servants know when to turn a blind eye to the worrying behaviours of contractors and others. It’s worse for senior public servants.

It parallels the example in China where the whistleblower doctor was arrested for warning about Covid–19 in its earliest days. As in China, in Victoria the protection of the establishment is prioritised over transparency and truth. Message control suppresses openness and facts. This is on open display in the daily Covid-19 press conferences in Melbourne.

This ossifies public service management, preventing fast reaction, particularly in unexpected and fast–moving situations. When crisis erupts, heavy authoritarianism is the response.

Investigations need to happen within this broader context. Were the hotel security contracts allocated without due process? Were police and ADF oversight refused in order to protect ‘establishment’ commercial arrangements? Were unions involved in decisions to refuse police and ADF oversight? Were hotel and bureaucrat ‘whistleblowing’ of quarantine failures ignored because of an ingrained public service culture of indecision and turning a blind eye?

These are hard, deeply probing questions. It’s unknown if the Coate quarantine inquiry has the capacity to dig this deep. If not, it’s still likely to produce facts and evidence that would enable such an investigation.

Given the hundreds of Victorian Covid-19 deaths resulting from the hotel quarantine debacle, an investigation should also occur under the Victorian Occupational Health and Safety laws.

The OHS Act requires investigation into the duties of employers to employees and others. It requires investigation of those who control workplaces and their duty not to recklessly endanger persons. The known circumstances of the hotel quarantine mess demand that each of these statutory requirements be investigated.

The investigation should not be confined only to the hotels. It needs to look along the contractual chain at every level to where any measure of ‘control’ was exercised. The OHS Act applies as much to government as it does to the private sector.

But there’s more. In 2019 the Andrews government passed new Industrial Manslaughter laws. An extensive Victorian government advertising campaign has hammered home that prison waits for management and supervisors found responsible for workplace-related deaths. What could not be anticipated then, was that within months there would be a situation that could arguably be captured under the Act as mass manslaughter. This is for the justice system to sort out.

But here’s another worry. The integrity of the justice system in Victoria is under a dark cloud.

The George Pell case raises the spectre that Pell was investigated, tried and convicted in Victoria for what Pell was and represented, rather than for what Pell did. This is criminal ‘justice’ contorted. It took the High Court to overturn the injustice.

Pell’s circumstance is not isolated. Some years ago, a Victorian chicken processing company, Baiada, was prosecuted and convicted for a workplace death at a chicken farm. Baiada did not own or control the farm. The only connection was that Baiada supplied a truck trailer for transporting chickens. Like Pell, Baiada’s conviction was overturned by the High Court.

Pell was and is detested by the Melbourne Labor establishment. Likewise, Baiada had a long history of conflict with Victorian establishment unions. There are other similar cases.

Here lies the concern with the Covid-19 hotel quarantine case.

What if the quarantine contracts, processes, management and control were all directly within and under the umbrella of the Melbourne Labor establishment? If the Victorian justice system is likewise within this establishment umbrella, will a genuine investigation occur? Or a cover–up?

First published in Spectator Australia, 13 August 2020.

Roland Fort commented on 25-Aug-2020 08:21 AM
He only treats us as stupid because his supporters are stupid. 12 months is his opening bargaining chip. He wants us to negotiate so he can get another 6 months for his havoc. Then were supposed to feel we had a grateful win. After his given record on transparency (being totally NIL) on China Belt & Road (what has he put up a security on behalf of Victoria) for his reported $16 billion. His track record he totally ignores. Keeping the vulnerable / elderly in nursing homes & (out of hospitals) whilst blaming the Feds. Then red shirts to branch stacking. With Vic ALP under Bracks / Macklin administration seems real ALP members have NIL rights too. Then allowing (said he never knew pfft) hotel security contracts for 14day Covid lockdown to (politically correct) unqualified indigenous firms to the take big money to then sub contract down to $25 per hour with a ABN no training no PPE, no Workcare, no OHS. BOTTOM LINE: This guy gives stuff all about the elderly, mental health, the economy or the truth.
Nick Lovell commented on 02-Sep-2020 09:30 AM
Well said Roland! my suspicions word for word.
James commented on 04-Feb-2021 09:43 AM
Whoever would have anticipated Victoria would be governed by what from outside (I'm in NSW) looks like a (not at all benevolent) dictatorship with one of the most left-wing governments of the western world's "democracies"?

BUT, my real curiosity is what has happened to the possible industrial manslaughter case that was mentioned months ago (to be brought against the Premier). It seems to have vanished.

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