Jennifer Coate sitting at desk in front of hotel quarantine inquiry sign
Justice Jennifer Coate heading the inquiry into Victoria's hotel quarantine scandal. (Image: AAP/James Ross)

The hotel quarantine program in Victoria was a self-evident disaster, the price paid in lives lost and the state’s economy shattered.

It has claimed the health minister and will continue to tear strips off Premier Daniel Andrews’ political hide. There will be class actions as lawyers descend on the wreckage.

But will it send anyone to jail?

According to The Australian’s Robert Gottliebsen, if the Victorian government applies its own law, ministers and senior public servants in their droves are prime targets for prosecution as perpetrators of workplace manslaughter.

Gottliebsen first flagged this in August and doubled down this week, declaring the only way to avoid the wholesale jailing of senior government figures will be if prosecutors refuse to, or fail to, properly apply the law.

It’s a great story — but completely wrong. Nobody will be convicted of manslaughter over the hotel quarantine debacle, and the law will survive just fine.

In late 2019 the Andrews government beefed up Victoria’s occupational health and safety laws, introducing a criminal offence of workplace manslaughter.

Its object was to do something serious in response to the 24 workplace deaths in the preceding couple of years, to make employers sit up and take their safety obligations more seriously. Nothing like the threat of a $16.5 million fine or 25-year jail sentence to grab the board’s attention.

The crime can be committed by anyone who owes statutory workplace health and safety duties under the legislation, excluding employees and volunteers. Employers — corporate or human, private or government — are in the gun, as well as their directors and managers.

The OHS duties are essentially to provide a safe environment and take reasonable precautions against known and foreseeable risks. The duties are owed to employees and the public — anyone who comes into the workplace.

To commit the manslaughter offence, an employer must do something (or fail to do something) which:

  • Is a breach of an OHS duty
  • Is negligent
  • Causes someone to die.

The key element is “negligence”, which the legislation defines in terms of criminal negligence rather than the common or garden variety. This is the bit that Gottliebsen seems to have missed.

The degree of negligence required to trigger prosecution is “a great falling short” of a reasonable standard of care, which also involves a “high risk” of death, serious injury or serious illness.

That’s a really high bar, miles higher than the negligence that would suffice for a civil damages claim or a regular OHS breach.

“Great” is not a commonly used legal term, but the courts will interpret it as something along the lines of “huge”, “terrible”, “OMG I can’t believe you did that” — that sort of territory.

According to Gottliebsen, if you’re a director of a company who does all the right OHS things, “then if a staff member behaves badly causing a death or serious injury, board members would not be liable under OHS.”

However: “Under the industrial manslaughter act, the board members who acted properly are still likely to face long jail sentences.”

That’s 100% incorrect. There is no prospect that a company director who is diligent about their OHS responsibilities could be successfully prosecuted for workplace manslaughter under the Victorian law: they would not meet the requisite standard of negligence.

The law has been designed to catch extreme cases of what really amounts to wilful recklessness, and that’s all it will do.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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