Natalie and Ron Salter - "We stand to lose everything that we have worked for, for 38 years." Photo / Jason Oxenham
A workplace fatality has seen police use a law usually associated with drugs and organised crime to seize millions of dollars in assets from a business owner because of health and safety breaches.
The case is set for the High Court in Auckland next Wednesday and Ron Salter - who served home detention after the 2015 death - says he and wife Natalie stand to lose everything they have worked for over 38 years.
It is a first for legislation usually associated with gangs and the drugs trade. High Court documents show police have used the Criminal Proceeds (Recovery) Act to legally restrain their family home in Auckland, along with family trusts, the family bach and waste fuel collection business Salters Cartage Ltd.
At risk are properties worth $8,125,000, according to government valuation, and the Salters' waste fuel recovery and recycling business that could triple the value of the restrained assets.
It follows the 2015 death of Jamey Lee Bowring, 24, at the Salters Cartage Ltd yard in Wiri, South Auckland. Bowring was welding on a 100,000-litre fuel tank when it exploded, throwing him about 100m.
Sarah Ferguson, the mother of Jamey Lee Bowring, said any comment she had to make on the police proceeding was limited because the case was heading to court.
However, she said: "It doesn't surprise me that this is happening due to how illegally he was running his operation."
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In November 2017, Salter and his company pleaded guilty to six health and safety charges and six charges under the hazardous substances laws. He was sentenced to four-and-a-half months home detention and personally fined $25,000. His company was fined $258,750. Salter and the company were ordered to pay reparations of $128,000.
Ron Salter told the Herald on Sunday: "I thought we were done. I'd done my time, paid the fines. I thought I'd done everything and it was all over."
Salter said he had understood the Criminal Proceeds (Recovery) Act to be aimed at the drug trade.
"I always thought the proceeds of crime was related to drugs and that couldn't prove how you bought your house or your motorbike or flash cars. It was never envisaged for this, to my knowledge.
"We stand to lose our house here, our children's house down the road… our bach which we've had for 17 years over in Waiheke, plus the whole Salters operation. A lifetime of work. We stand to lose everything that we have worked for, for 38 years."
Salter started the business in the early 1980s with one truck and grew it to a business with 25 staff and up to 25 trucks collecting waste fuel north of Taupō. The company has been involved in recovery operations from the Rainbow Warrior in 1985 through to the ruptured Marsden Point-to-Auckland fuel pipeline in 2017.
He said Bowring's death and the prosecution that followed had weighed heavily on his family. "It devastated us. It devastated their family as well.
"But there has to be a time when it is finished. I know it will never be finished for their family and I don't think it will ever be finished for us as well."
Natalie Salter said the impact of Bowring's death had a clear impact on her husband. "Ron was fairly broken about the whole business and I don't really think he's come right since. It's certainly had a big impact, on the family, on the company, on everything."
Barrister Ron Mansfield, who is representing the Salters, said it was a "test case" and police were trying to use the Criminal Proceeds Recovery Act in a way Parliament didn't intend when the law was passed in 2009.
"It is being used to attack businesses and their owners for offences that can inadvertently be committed during the course of a legitimate business."
Mansfield said Salter and his company had changed business practices, were remorseful, had pleaded guilty, paid the fine and compensation.
"This new development, if condoned by the Courts, will clearly have an impact on business certainty and compliance costs, which will either be passed on to customers or force them out of business.
"All businesses should be concerned by what is intended here as they all will be exposed to this form of action if they were to commit a similar offence, of which there are over 70 every year in New Zealand. The potential exposure is significant, as are the ramifications for business certainty in New Zealand."
Detective Inspector Craig Hamilton, national manager of the financial crime unit, confirmed it was the first case linked to health and safety offending. He said it was an ongoing investigation that "may broaden".
He said police had taken on criminal proceeds cases from other agencies, including fraud.
Asked how the law extended to health and safety, he said: "The Act has a purpose of stopping people from profiting from crime and to deter those from undertaking criminal activity.
"Its wider purpose is therefore to reduce the occurrence of crime and reduce harm in our communities."
Hamilton said the case was at a stage that restrained the assets to preserve property while the investigation was continuing.
"When the investigation is completed police will make a forfeiture application."
The Parliamentary record of the passage of the bill through to becoming law in 2009 shows debate focused on drug offending and organised crime.
Former Labour MP Martin Gallagher, who chaired the Law and Order Selection Committee which oversaw the bill, confirmed that was the focus.
However, he said the nature of legislation was that lawyers - either defence or prosecution - would see laws as a "toolbox".
"I always accept prosecution (or defence) will look at all legislation as a toolbox and the courts will interpret whether it's an appropriate toolbox."
Data from WorkSafe - which said it was not connected to the case - showed there were 108 work-related fatalities last year, including workers who died while working and members of the public who died as a result of others' work-related activity.
NZ Council of Trade Unions president Richard Wagstaff said health and safety in New Zealand needed good law, good enforcement and good workplace practice. "We need to do everything we can to focus people's attention more on the issue."
He said Pike River was a case in which there had been no accountability over the failures that led to the deaths of workers.
"People are dying. We should never have tolerance for it. It's all preventable."
Business NZ chief executive Kirk Hope said health and safety breaches had a "rightful prosecution agency" and that was WorkSafe.
"If there are matters related to other activity deemed criminal, that's a different matter.
"If this is health and safety-related, that would give cause for concern for company directors. It would seem to me to be an extension of a jurisdiction that is already recognised."
Human rights barrister Dr Tony Ellis - who is currently representing a client facing criminal proceeds recovery - questioned whether the absence of corporate manslaughter in New Zealand law could have led to the "unusual" approach.
"Why shouldn't people who breach health and safety and put workers at risk face a penalty?"
Duncan Cotterill partner Brian Nathan - who specialises in health and safety - said it was difficult to see the link between health and safety incidents and criminal proceeds law.
"It's certainly nothing I am aware of that's happened in the health and safety space before."
The S&P/NZX 50 Index closed down 0.10%, falling to 12,627.32.