The decision announced today (but made when?) to withdraw the charges against Pike CEO Peter Whittall cannot be left to rest.
When did a Judge of a New Zealand Court participate in a deal where criminal charges were dropped and money paid. It is insufficient to say the two are not connected. The money has been paid into the Court today. The Judge should have had nothing to do with this part of the agreement nor used the Court to collect the cash, and she seemed in her comments to support the deal saying it was “a good outcome”. This is my view is highly inappropriate.
The precedent is huge. The Health and Safety in Employment Act forbids insurance being taken out to cover for penalties. The “arrangement” reached with Whittall and his insurers with the Crown, bypasses the intention of the Act and allows a fine already ordered to be paid against the Company in one case, to be paid to escape the possibility of a conviction and fine in another, and by insurance.
If the charges could not be made to stick then it is my view, they must have been poorly laid, poorly investigated and again point to a lack of capacity and rigour in the Department. When a Royal Commission finds as strongly as it, systematic failings in management at the mine, the test of failing to “take all practicable steps” in regards health and safety should have been proved.
Clearly the Department itself would have been a focus of this case if Whittall had continued to defend himself. It’s failings would have been re-canvassed and its direct dealings with Whittall exposed which was not done in the Royal Commission. The Cabinets decision not to pay reparations to the families despite agencies like ACC receiving insurance payments for the mine, left the families in a precarious financial position and opened the door for this offer to come in. Everyone wins here except the families and most importantly except the men killed in the mine. It is the Crowns job to represent them. They cannot seek justice themselves. When someone is killed like this, we hand the responsibility to the Crown to seek justice – it has failed in every way for the men at Pike. The Cabinet should continue to be pressured to compensate for the Crowns role.
In this case, MBIE are saying the case was a waste of money given it would be complex and long. It is saying spending the money is not in the public interest. This is in contrast to the Cabinet Decision to allow the families to sue the Crown if they so wish, rather than seek to compensate on agreed terms – leaving the responsibility for justice to sit on the families shoulders.
We are up to our eyeballs in legal expenses around health and safety. While money pours in from Government Agencies to help industries run health and safety initiatives, we are fighting on all fronts using the money paid in union fees by shop workers that stack supermarket shelves at night, to try and be the counter-voice here. Be it cases for Security Guards killed on their first night at work on Fulton Hogan Building sites, the families of forest workers appearing at Coronial hearings or for seeking advice on what happened today in Christchurch District Court. It sometimes feels unsustainable against all the lawyers that corporations can afford, and with a Department which does not consult or work with us on these issues. I hope the new Worksafe will be better and we are positive about it and its new leadership but that does not release us from seeking justice in the present situation. We are thinking how we can challenge this decision. It’s a big job. All ideas welcome.
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