SafeWork SA keeps grieving families in the dark
Grieving families have been left in the dark about why SafeWork SA failed to successfully prosecute anyone over the deaths of their loved ones, with Premier Jay Weatherill watering down his “instruction” to the watchdog to release the information.
“There will be a review into the failure of all of these prosecutions, of all of these workers that have died in recent years," Jay Weatherill declared at a rally in April. Image: from a CFMEU video of the speech
Responding to public outrage earlier this year, when SafeWork abandoned its prosecution over the 2014 new Royal Adelaide Hospital site death of construction worker Jorge Castillo-Riffo, Weatherill told a “Justice For Jorge” rally that the agency would be held accountable for its failures.
“There will be a review into the failure of all of these prosecutions, of all of these workers that have died in recent years [in] our South Australian workplaces,” Weatherill declared.
Speaking on the steps of Parliament House at the rally in April, the Premier said he had met with Castillo-Riffo’s widow, Pam Gurner-Hall: “And what she said to me is that she wants answers, not just for herself, for her own piece of mind, but she wants answers for you [all construction workers].
“You’re entitled to go to work and come home safe and well.”
[Watch Weatherill’s speech below]
But as InDaily reported last month, SafeWork refused to release the review, arguing that it was “subject to legal professional privilege”. Families of the killed workers described the move as an act of “bastardry”.
Weatherill intervened at the eleventh hour, ordering the agency “to provide the findings and recommendations to the families and to brief them on the progress of our response”.
The safety watchdog has now published the review’s recommendations online, but is still refusing to release its full findings, meaning that Gurner-Hall and other families whose loved ones have been killed on construction sites over the past several years remain in the dark about how and why SafeWork repeatedly abandoned, failed to launch, or failed to win prosecutions over the deaths.
And Weatherill is backing the decision.
“The findings contain matters which are ordinarily subject to legal professional privilege and there is no precedent for releasing it,” he said in a statement to InDaily.
“We are exploring whether there are additional elements that can be disentangled from this legal advice and released.”
But as Law Society SA president Tony Rossi told InDaily in September, there is nothing stopping an organisation waiving legal professional privilege if they so choose: “The client [in this case, the Government] can release that advice if the client wishes.”
Although he stressed he was not familiar with the details of the SafeWork review, Rossi said at the time that “legal professional privilege is a right of the client”.
It is possible, however, that SafeWork is not the only party (client) asserting legal privilege to keep the review’s findings secret.
A spokesperson for the safety watchdog told InDaily: “SafeWork SA is happy to continue speaking to Ms Gurner-Hall to update her on the progress of implementing these recommendations as we work to strengthen our work in the investigation and prosecution of work health and safety matters.”
Did the review even consider SafeWork’s failures to prosecute?
The Attorney-General’s Department, which houses SafeWork, now claims that the review Weatherill commissioned “into the failure of all of these prosecutions” did not assess why the prosecutions failed – but was, rather, a broad review of the watchdog’s processes.
According to a document, handed to Gurner-Hall during a meeting with Attorney-General John Rau and a SafeWork representative last month: “It is important to note that the review is not a review of any individual matter.”
“The senior prosecutor was tasked with reviewing the arrangements within SWSA [SafeWork] and the CSO [Crown Solicitor’s Office] for the investigation and prosecution of offences … in order to identify areas of improvement,” says the document, which has been acquired by InDaily.
“The senior prosecutor was not tasked with reviewing why particular prosecutions had been unsuccessful.”
The Premier’s office says it did, in fact, consider individual matters.
A spokesperson told InDaily last week: “I’m told the review set out to identify systemic issues by considering individual cases and this resulted in recommendations for systematic change.”
Asked to address the apparent inconsistency between this statement and the information in the document given to Gurner-Hall, the spokesperson insisted: “They both are consistent”.
InDaily was not able to reach Gurner-Hall for comment this morning.
SafeWork SA investigators ‘need basic training’
The number-one recommendation of the review, provided to Gurner-Hall at the meeting and published online, is that SafeWork personnel “involved in investigating incidents ought to immediately receive appropriate foundational skills training in investigations”.
The recommendation lists four “essential components” of the training:
- The application of the Work Health and Safety Act “in a practical context”.
- “Conducting interviews”.
- “Experts – when, why, who (and) how”.
- “What is admissible evidence”.
According to SafeWork’s response to the recommendation, a training program “focused on foundational investigation skills” was delivered to its staff in August this year.
[The full document is available at the end of this story]
Among its 18 recommendations, all of which the Government has accepted, the review advocates: “an overarching review of current SWSA (SafeWork) procedures and practices relating to identifying which incidents will be subject of an initial response”.
Eric O’Neil, whose son Allen died after inhaling diesel on a work site near Adelaide’s Desalination Plant in December 2009, said SafeWork only began investigating the incident in March 2010 – about four months after it occurred.
SafeWork released a statement in August of that year, concluding after a “thorough investigation” that Allen’s injuries did not “occur as a result of a work activity” and that “the employer had relevant procedures and systems in place”.
No one was ever prosecuted. Allen’s death is one of several following accidents on South Australian construction sites for which no one has been successfully prosecuted.
“They didn’t do their job,” O’Neil told InDaily.
He said SafeWork’s refusal to release the findings of the review showed it “has something to hide”.
“[SafeWork has] pushed it under the carpet,” he said.
“I don’t think they have got any right to withhold information about what happened.
“They don’t give a f*** [… about] people who have lost their children.”
O’Neil said he had had no contact from SafeWork SA regarding its review.
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