Mai Chen
Public and employment law specialist Mai Chen on current events

Mai Chen: Pike River fallout sign of royal commissions' influence

Prime Minister John Key. Photo / Mark Mitchell
Prime Minister John Key. Photo / Mark Mitchell

More prosecutions may now follow, despite the commission stressing that it is not a court of law.

Few of the major players in the Royal Commission report on the Pike River tragedy will be left unscathed once the full implications of its findings, released this week, have been worked through.

The Prime Minister has apologised to the families and friends of the Pike River miners killed "for the role [the] lack of regulatory effectiveness played in the tragedy". The Hon Kate Wilkinson resigned as Minister of Labour, even though "reports from the former Department of Labour did not advise [her] of concerns about their ability to administer the health and safety legislation". (The last minister to resign over a failing of their department for which they were responsible was Hon Denis Marshall in 1996 after the Cave Creek disaster which killed 14, which was also the subject of a commission of inquiry.)

Acting Minister of Labour Hon Chris Finlayson announced on the same day that the Government "broadly accepts" the recommendations made by the Royal Commission, summarised by the commissioners as the need to make urgent legislative, structural and attitudinal changes if future tragedies are to be avoided.

The comments about Pike River Coal's board and management are significant. As the Prime Minister said on Monday: "The Royal Commission made it very clear that much of the fault for the tragedy lies with Pike River Coal Ltd because it did not follow good management and best practice principles, its health and safety systems were inadequate."

The commission said that "directors need to rigorously review their organisation's compliance with health and safety laws and assure themselves that risks are being properly managed". These statements should send a chill down the spines of those who may be named in the comparable parts of the Canterbury Earthquakes Royal Commission's report.

The commission also found that the Department of Labour "did not have the focus, capacity or strategies to ensure that Pike was meeting its legal responsibilities under health and safety laws". It recommended a new Crown entity regulator with a sole focus on health and safety, changes to the Health and Safety in Employment Act to update mining regulation, and major improvements to emergency management.

Former mine manager Peter Whittall, Pike River Coal and VLI Drilling have already been charged under the act and more prosecutions could now follow, despite the commission stressing that it is not a court of law, and the six-month limitation period in section 54B of the Act. Targets may include any of Pike River Coal's officers, directors, or agents who can be shown to have directed, authorised, assented to, acquiesced in or participated in Pike River Coal's failure to comply with its obligations under the act, so long as an inspector neither knew nor ought to have known of the particular incident, situation, or set of circumstances for which charges were to be laid before now. A private prosecution could also be brought if the informant could satisfy the Court that they should be granted an extension of time under section 54C to bring proceedings.

Three of the former directors and the former chief executive of Pike River have already said that they do not agree with the some of the Royal Commission's conclusions.

This fallout shows that royal commissions in particular remain a potent government and Parliamentary tool, where the significance of the event requires more than an inquiry by an officer of Parliament or a complaints body. Such inquiries need to be treated with respect. The result can be catharsis and closure, as well as policy and law change, prosecutions under other legislation and significant reputational damage.

Another report released this week (that of the Electoral Commission reviewing the MMP electoral system) was not met with such overwhelming support. The repeated reviews and reconsiderations of our electoral system stand in contrast to the American presidential election held yesterday under a system that has barely changed in 200 years.

Our Government's response to the report was measured; Justice Minister Judith Collins saying only that "the Government will now carefully consider the commission's recommendations and will be consulting with other parties in Parliament for their views". But the fact that the Government moved to MMP after the 1986 Royal Commission on the Electoral System, and more recently enacted the Electoral Referendum Act which required a review of our electoral system, shows that we do have a culture of inquiries and reviews as a way of getting to the bottom of issues and impacting change.

Finally, on a personal note, I was very sad to hear of the death of criminal barrister Greg King. We had discussed the public abuse he had suffered for his defence of Sophie Elliott's murderer, Clayton Weatherston, and that the clients that choose us sometimes make us unpopular. But under the Rules of Professional Conduct, lawyers are bound to accept instructions within their area of expertise provided that they are not conflicted and have the time, and if the client is willing to pay a reasonable fee.

"The merits of the matter" are not grounds to refuse instructions because what is important is everyone's access to justice and the rule of law. So lawyers don't usually choose their clients, it's the other way around. And lawyers can only advise. It is the client who determines what we are instructed to do, which sometimes determines what we argue in Court. Greg King did that for his clients and we are the poorer now he has gone.

Mai Chen is founding partner of Chen Palmer, and Adjunct Professor, University of Auckland Business School.

- NZ Herald

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