Rule of profits and powerful undermining the rule of law

Jay Kuten PHOTO/FILE

Amid the concern over economic inequality and its effect on democracy, there is the rising evidence of disparities in application of the law.

One of the cornerstones of democratic practice is a presumption of innocence and the equality of everyone before the law.

When the rich and powerful are able - through purchase of superior legal representation - to escape the consequences of their actions, the very foundations of democratic society are buffeted. When that person is an elected representative, their escape from consequence enhances latent cynicism and undermines not only trust in government, but respect for the law, itself.

Judith Collins, despite the several instances of alleged abuse of power and her apparent attempted undermining of the head of the Serious Fraud Office, has suffered only removal from the "roll of the 'honourables'". That means she can't call herself "the Honourable Judith Collins". In July, Gerry Brownlee, together with two staffers, arrived late for a domestic flight, "persuaded" a hapless airport worker to let the trio bypass security and enter a passenger lounge through an exit door.

Immediately after their departure, the worker called in the incident and the CAA contacted then Transport Minister Brownlee, who admitted his "error". The CAA subsequently fined Brownlee - who by then had resigned his transport portfolio - $2000, the maximum fine under Civil Aviation Rule 19.357(b) which states "no person may be in an airport security area without an appropriate identity card".

What Brownlee did in bypassing security could easily have been prosecutable under section 28 of the Civil Aviation Amendment Act 2004, which says a person commits an offence by acting "in a manner that endangers an aircraft or any person in an aircraft". That offence is punishable by two years' imprisonment or a $10,000 fine.

Brownlee, unlike the rest of us, benefits from prosecutorial discretion.

I've often despaired of the tendency of Kiwis to compare themselves with other nations, especially the United States. I've encouraged New Zealanders to learn from the mistakes the US has already made - in education, or healthcare, or foreign affairs, say - and not to repeat them slavishly. But then there are comparisons worth making.

This month marks the fourth anniversary of the Pike River Mine disaster in which 29 men lost their lives when methane gas was allowed to build to dangerous levels and finally exploded.

A Royal Commission worked for two years and concluded that government had failed to regulate and inspect. More pointedly, the Pike River company's directors and chief executive Peter Whittall had not acted properly over health and safety at the mine.

Subsequent prosecutions saw the company fined $760,000 and ordered to pay each family $110,000. The company paid $5000 per family, claiming a lack of money.

Prosecution of Whittall was dropped after his solicitor made a "voluntary" contribution of $3.41 million or $110,000 per family.

Recently, TVNZ aired a poignant tribute by musician Dave Dobbyn to the 29 miners, the two survivors and their families. Dobbyn's song expressed the sense of the families feeling betrayed by a government which has refused to prosecute those responsible.

Prosecution might have disinterred the truth which lies buried with the bodies of the miners. The mine owners and managers have thus avoided accountability for the dereliction of duty that the Royal Commission exposed.

In the US, 29 miners died at the Massey mine in West Virginia - also in 2010, and from a similar methane gas explosion.

A Department of Labor Mine Safety & Health Administration found the accident was preventable and that the company had knowingly violated safety rules. Massey was fined $209 million, of which $46.5 million was restitution to miners' families.

One superintendent, Gary May, has pleaded guilty to impeding safety and faces five years' imprisonment. This week, the former chief executive, Donald Blankenship, has been indicted on charges of conspiracy to ignore health and safety regulations in favour of making more money. If convicted, he faces up to 31 years in prison.

Sometimes the big country gets it right.

-Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing. He spent 40 years comforting the afflicted and intends to spend the rest afflicting the comfortable