Victorian State Govt (Australia) may face manslaughter charges over botched COVID quarantine - Lefty laws designed to hit the private sector bite them on the ass!

Ha ha ha, the far left wing Govt in my state, Victoria, has blown its own foot off. As lackeys of the unions they sought to make private sector bosses criminally liable for work place negligence resulting in death or injury. Fast forward to their fuck ups re COVID and we now see that they may be caught by their own laws. Karma is a bitch.

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.

Earlier this year the Victorian government enacted horrendous industrial manslaughter legislation, with the aim of jailing the boards of top corporations should they be linked with death in the workplace. Ministers and public servants were not excluded.

READ NEXT

Google ‘a bully using scare tactics’

DAVID SWAN

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.

And if they are not prosecuted, the precedents created will almost certainly destroy the original purpose of the Act — to hit large enterprises linked to workplace deaths.

Almost certainly non-prosecution will also neuter many of the planned actions against the boards and managers of aged care facilities. To understand what is about to take place I have to take you back 16 years.

READ MORE:Family set off second wave|Security guards to front hotel quarantine probe|Recordings to reveal truth on hotel quarantine

In 2004 the then Victorian premier, Steve Bracks, put together some of the best occupational health and safety legislation in the nation. So when the Commonwealth tried to get uniformity Victoria stood out and said, “we have the best legislation in the land” and refused to join. And in fact the Victorians were right — their legislation was better than that enacted by the Commonwealth and other states.

The Bracks legislation makes it easy for individuals, obviously including unions, to trigger an action. But (unlike the national legislation) it makes it very clear 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.

And so under the Bracks legislation if I contract plumbers I might tell them what to do but not how to do it – that’s their job. They are in control of the risks and I am safe from prosecution.

THEAUSTRALIAN.COM.AU3:07

Rydges and Stamford hotel quarantine facilities at the centre of COVID-19 debacle

The inquiry into Victoria's hotel quarantine breach has released new evidence suggesting approximately 90 per cent of cases in the state’s second wave of COVID-19 originated i...

Under extreme union pressure Daniel Andrews’ government added to the Bracks legislation industrial manslaughter clauses, which allowed people not in control of risk to be convicted of industrial manslaughter and to be liable to long jail sentences. The aim was the ability to jail the so-called “tall poppies”.

But the way the Act works is that to trigger the manslaughter prosecutions there first has to be a breach of the occupational health and safety laws.

But 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.

While individuals can take an action personally against Victorian public servants and the government, to be taken seriously it must under the guidance of a top Australian OHS lawyer. Backed by such advice 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.”

Victorian Premier Daniel Andrews. Picture: Getty Images

Victorian Premier Daniel Andrews. Picture: Getty Images

WorkCover must obey the law so under the Act they can agree there has been a breach of the OHS Act and that can trigger manslaughter charges. However under the OHS Act itself there are sections that provide jail sentences for people who recklessly endanger other persons.

Alternatively, and more likely, WorkCover can say there is no case against the Victorian government but they must give reasons and those reasons will be precedents for actions against others.

I am not a lawyer but I’m sure, at least on the basis of the casual evidence presented, there was no proper training of the security guards at the hotels and there were a series of other events that led to the predictable death of many people because of the spread of the infection.

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’ mistake was to not include a clause that exempted all public servants and all ministers from any action and the Act. That would’ve been grossly unfair but it’s what politicians in Australia and around the world usually do.