Summary: The inquiry into Victoria’s use of hotel quarantine will soon be compelling evidence from a wide range of individuals and organisations. We look at what participants can expect and the potential for adverse findings.
On 20 July 2020, the judicial inquiry into the use of hotel quarantine as part of Victoria’s public health response to COVID-19 begins (Inquiry). The Inquiry was instituted following revelations that a number of Victoria’s COVID-19 cases are traceable to an infection control breach in the quarantine hotel program; that concerns were raised about a lack of infection control measures in place at quarantine hotels; and that security guards may have assisted persons subject to mandatory quarantine to breach the requirements.
Separately the Commonwealth Government has announced a national inquiry into the use of hotel quarantine as part of the national response to COVID-19.
How the Inquiry will work
The Inquiry has very broad powers to require persons to provide witness and documentary evidence on the matters within its terms of reference1. It can be expected to operate by first issuing notices to individuals and organisations to require them to produce documentary evidence or present to it for questioning. Compliance with a notice to give evidence can be enforced with the assistance of the Supreme Court of Victoria.
An individual or organisation may also volunteer to give evidence to the Inquiry.
In providing evidence to the Inquiry, an individual can rely on the privilege against self-incrimination and legal professional privilege as a reason to not produce a document or answer a particular question. A corporation cannot rely on the privilege against self-incrimination. In any event, evidence given by an individual or corporation cannot be directly used as evidence in subsequent proceedings against that person or corporation.
Potential for adverse findings
The range of conduct which may come to be examined by the Inquiry is vast. So is the range of potential for identification of actual or potential misconduct. By way of illustration, issues which may be the subject of the Inquiry and its report include:
- the engagement and supervision of the security guards used to enforce the mandatory quarantine requirements;
- the steps taken to implement appropriate infection control procedures and training and to address concerns that these were insufficient;
- whether conduct breached the Public Health and Well Being Act 2008;
- whether conduct breached any other legislative scheme (such as WorkCover), code of conduct or employment contract; and
- whether any duty of care has been breached, including in public office.
The Inquiry is currently required to deliver its report by 25 September 2020. In that report the Inquiry has power to make any recommendation that it considers appropriate. The report may also contain adverse findings against individuals and organisations.
Other Boards of Inquiry and Royal Commissions have made recommendations to regulators and prosecutorial bodies in respect of enforcement action and law reform. The Final Report issued by the Banking Royal Commission, whilst concerning a different legal and factual context demonstrates the potential severity of the adverse findings and recommendations which might be made here. For example, in one part of the Banking Royal Commission Final Report Commissioner Hayne concluded2 :
I consider that it is open to a jury to conclude, beyond reasonable doubt, that in either of the cases described, the taker in the course of its carrying on a financial services business in this jurisdiction engaged in conduct in relation to a financial service that was dishonest according to the standards of ordinary people
It would be for the prosecuting authority to determine how charges would be framed.
Such findings and recommendations have been followed by enforcement action by relevant regulators.
How Cite Legal can help
Experience shows that participants are generally given short timeframes within which they are to comply with notices to give evidence and being required to give evidence before an inquiry or royal commission can be an extremely demanding and challenging experience.
Being prepared by understanding what your evidence is, its implications and whether you can rely on the privilege against self-incrimination or legal professional privilege, if you wish to do so, will be key to improving the experience.
Cite Legal offers market leading experience in:
- assisting individuals and organisations to gather evidence including in response to inquiries and court orders;
- assessing the implications of evidence; and
- identifying and implementing available risk mitigation steps.
Please contact us to make a time to discuss.
1 See https://www.vic.gov.au/hotel-quarantine-judicial-inquiry
2 At pages 155 and 157