The Pike River Supreme Court decision – Helen Kelly would be pleased

Written By: - Date published: 8:41 am, November 24th, 2017 - 19 comments
Categories: david cunliffe, disaster, health and safety, Mining, national, Politics, same old national, Unions, workers' rights - Tags: , , ,

I thought the Supreme Court judgment released yesterday that the decision to allow Peter Whittall to walk away from prosecutions relating to the death of the 29 miners in Pike River was completely just.  I can understand the rationale of the original decision in a try and fix things up sort of way.  But a properly functioning Justice System needs to put those considerations to one side.

I thought I would go through posts on this website and I discovered this absolute gem written by Helen Kelly at the time that Whittall was acquitted.  Helen was instrumental in this particular case proceeding.  She is probably looking down and smiling.  And knowing that one of the battles that she fought with passion has been resolved in favour of the workers.

I will repeat it in full.  Just to make sure that the chances of it being read in full are maximised.  From Helen’s post:

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.

And here is something I wrote 4 years ago.

The Government appointed Royal Commission concluded after hearing considerable evidence that “even though the company was operating in a known high-hazard industry, the board of directors did not ensure that health and safety was being properly managed and the executive managers did not properly assess the health and safety risks that the workers were facing. In the drive towards coal production the directors and executive managers paid insufficient attention to health and safety and exposed the company’s workers to unacceptable risks. Mining should have stopped until the risks could be properly managed.”

In the prosecution of Pike River Ltd under the HSIE Act Judge Farrish slammed the company for a “total lack of remorse” because of claims that it could not afford to pay reparation to the families.  She is quoted as saying “It is not often a company steps back and holds its hands up and says ‘I have nothing’. Even a company in a fragile state usually comes forward and offers reparation, but here nothing has been forthcoming.  I am satisfied the company has the means to pay either by existing shareholders or a combination of the shareholders and directors. I note that the directors have significant insurance.”  Despite the claims of poverty Judge Farrish ordered payment of reparation of $110,000 to each of the deceased’s families and to the two survivors.  The total of these payments is $3.41 million.

The compensation was not paid.  David Cunliffe took up the cause and asked in Parliament why the Government did not contribute to these payments, after all it had indirectly received as shareholders of the companies involved an insurance payout.  His questioning of John Key was the first time that I have seen Key completely and utterly embarrassed in the house.

This was increasingly becoming an issue of deep embarrassment to the Government.

Yesterday’s bombshell announcement that charges were being withdrawn and that the insurance company was going to pay $3.41 million compensation has caused increasing disquiet.  Helen Kelly and the CTU are thinking about seeking a judicial review of the case.  Bernie Monk on behalf of the families has called the payment “blood money”.  I presume the payment is to satisfy the order of compensation originally made by Judge Farrish.

I am sure that Judge Farrish has acted with the best of intentions.  She is obviously deeply concerned for the families and wants to do the best for them.  But the coupling of the payment with the withdrawal of the charges creates the unfortunate impression that payment of money in this case may have avoided a prosecution.  And besides it was money that should have been paid anyway.

This neatly solves a political problem for the Government.  Instead of being open to criticism for not paying its share of the $3.41 million one of its departments agrees not to prosecute and magically the payment is made and a particular political wound is cauterised.

For the sake of the sanctity of our justice system this needs to be investigate fully.

I think the background is important.  The Crown received insurance money paid after the explosion because of its shareholding in the parent company of Pike River through ACC and the Cullen Fund but walked away from the obligation to pay court ordered compensation.  Then Whittall managed to avoid prosecution by getting insurance to make the payments the Government had a moral if not legal obligation to pay.  This is banana republic stuff.

And the Supreme Court has agreed that the coupling of the payment with the withdrawal of the charges did create the unfortunate impression that payment of money avoided a prosecution.  The Court thought the circumstances of the offence to be breathtakingly bad.  From the Judgment:

Twenty-nine men died following explosions at the Pike River coal mine on 19 November 2010. Two others were injured but survived. WorkSafe described what happened as “the employment related disaster of a generation.” At the sentencing of the mine owner, Pike River Coal Ltd, for breaches of the Health and Safety in Employment Act, WorkSafe submitted that the case was “as serious as one can contemplate … not only with regard to the breath taking omissions and failures at the mine but also in terms of the number of men killed”. The view that the omissions and failures in safety at the mine were “breath taking” is also substantiated by the 2012 report of the Royal Commission into the explosions.

The Court decision is that the conditional offer of payment by Whittall was a bargain to stifle a prosecution and therefore illegal.  Attempts to suggest that the payment, expressed from the start to be a conditional payment, was not part of a deal failed.  If it looks like a duck and quacks like a duck …

This does not mean Whittall will face prosecution.  The only prospect of this happening is if further evidence linking him to the disaster is discovered.  Which is why an investigation of the mine, the largest crime site in the country, has to be a priority.

19 comments on “The Pike River Supreme Court decision – Helen Kelly would be pleased ”

  • Comments are now closed

  1. dv 1
    24 November 2017 at 8:58 am

    That is why the Natz wanted the mine concreted up!!!

  2. tracey 2
    24 November 2017 at 9:14 am

    Was Joyce still Minister for MBIE at this time? Who was Solicitor General?

    ” Discussions with an ad hoc panel assembled by Mr Stewart (which included senior managers from
    WorkSafe, counsel and representatives of the Solicitor-General) were held during the week of 18 November and the matter was considered further at meetings on 26 and 28 November. At the 26 November meeting it appears that concerns were expressed about the “legality and propriety of considering an offer of a voluntary payment in the context of the public interest component of the prosecution decision”. Mr Stewart
    acknowledged in his evidence that there were concerns expressed at the meeting as to the propriety of considering an offer of voluntary payment.
    ”

    Who on earth was advising the group this was not a contravention? The same person who told Cabinet they legally had to pay the Saudi businessman? And who is this very bush lawyer from the last government?

    For the record, the last Labour govt also has culpability in the lack of oversight of safety at this mine but not, obviously, for this decision.

  3. james 3
    24 November 2017 at 9:47 am

    Indeed she would.

    I heard one of the families being interviewed yesterday and they gave a really touching summary about Helen Kelly and the work she did to help them.

    • tracey 3.1
      24 November 2017 at 10:09 am

      Sad that she was so demonised by the Right. Demonised by a myth about her ,not reality. She turned out to be “right” a lot of the time… The Hobbit, Pike River, even medical marajuana debate has shifted demonstrably and she had a part in that.

      • adam 3.1.1
        24 November 2017 at 11:03 am

        But the right hate working people, how else can it react to a smart, intelligent, and articulate women who defends the right of working people, except to vilify and deride?

        • tracey 3.1.1.1
          24 November 2017 at 1:45 pm

          As the media seem to be doung now with Ardern. Could Tim Murphy be more vacuous than his loose lips BS?

          • the pigman 3.1.1.1.1
            24 November 2017 at 7:48 pm

            Poor Tim has gone full crusade mode since being named in the proceedings filed by Winston. He obviously had minimal notice of it as the night before he rushed out an article on how Winston was Muldoon Bogeyman 2.0.

            His twitter feed has become a cesspit of borderline-defamatory stuff… hell hath no fury like a middle-class white man scorned. He is quite a good investigative journalist so it’s a pity for the government.

  4. Gristle 4
    24 November 2017 at 10:57 am

    Okay, we have finally got to the stage that the SC has ruled that It was unlawful for WorkSafe to withdraw its prosecution of Pike River mine boss Peter Whittall, in exchange for payments to the victims’ families.

    The current Government has the opportunity to set a direction and tone of how the Government/Crown/government interact with the people of Aotearoa. It is time for an inquiry looking into why the Ministry got to the point of agreeing to not submit evidence in the court case. What was the process, who was involved, what was Ministerial involvement (you remember that “no surprises policy”), who made the decision? And then, how to approach this in type of even in the future.

    The argument that this is a long and complicated and expensive set of litigation has not deterred the Crown from pursuing Kim Dotcom or various criminals through 3 sets of trials. As to the unavailability of witnesses…… I am sure that the public would brand these people as immoral, untrustworthy and accomplices for for decades.

    (Have you noticed how DOC has also decided not to submit evidence in some Environment Tribunal hearings? Do you think that this approach comes from a political directive?)

    • tracey 4.1
      24 November 2017 at 1:47 pm

      Yes I was wondering about No surprise policy too and who had the final legal word on what to do, from above.

  5. SpaceMonkey 5
    24 November 2017 at 11:26 am

    Where’s the Board of Directors in all this? It’s not just Peter Whittall at fault. The Royal Commission found the Chief Executive AND the Board at fault for not ensuring health and safety standards. Who were they? It’s like they’ve crawled under a rock. Bet they were happy to collect their fees though.

  6. CLEANGREEN 6
    24 November 2017 at 4:31 pm

    I love all my west coast cousins, as they showed us ‘true grit’ and inspired us East coasters how lazy we were not to stand up against the beaurocratic bullshit we all face every day under the last nine years of torment under those repressive National mobsters, so hopefully we are now in a “warmer more caring society” as we need to be.

  7. patricia bremner 7
    24 November 2017 at 6:00 pm

    Helen, you are remembered with love and gratitude. You lit a path to truth.

    All the barbs sadness and road blocks have been overcome because of you.

    This is one of many victories you began. Rest in Peace good and loyal friend.

  8. Nzsage 8
    25 November 2017 at 6:08 am

    This is an incredibly interesting article and the comments equally so.

    The frustrating thing is the fact Pike River is not the topic of conversation around every water cooler in the country. If NZ had any credible investigative journalist e.g Pilger-esk it certainly would be.

    The whole saga reeks of corruption and white washing driven from the very top.