Anthony Russell: Winz charges signal path for Worksafe

Worksafe must be confident it has the evidence to secure a conviction against Winz over the shootings or it would not be proceeding. Photo / Mark Mitchell

Prosecution over Ashburton shooting indicates how body will carry out its role, writes Anthony Russell

The tragic events in the Winz office in Ashburton last September have resulted in action before the Courts. The obvious being the alleged offender facing multiple criminal charges, including murder. The less obvious now includes the Ministry of Social Development (MSD) as the Crown organisation responsible for Winz, facing charges brought by Worksafe under the Health and Safety in Employment Act 1992. Some have questioned why Worksafe is doing this.

The charges allege there was a failure by the Ministry to take all practicable steps to ensure the health and safety of its employees in Ashburton. The seeming randomness of this event and the inability to prevent such randomness has been at the forefront of this questioning. What purpose is a prosecution going to serve in this instance?

There are other reasons why a prosecution may be questioned. For a start, the usual consequence of a successful prosecution is a fine. But the absurdity of one government organisation paying a fine to another government entity has been acknowledged by the Legislature, and a sentence of a fine is not available in this case. Imprisonment is reserved for the most serious of breaches, and although the consequence was most severe (death of two employees and another badly injured), this is not one of those.

Reparations are able to be awarded by the court to victims and their families. But what is the purpose of reparations in this instance? These tragic events are meant to be fully covered by the accident compensation regime. The families of the deceased are entitled to funeral grants; survivor grants; childcare payments on an ongoing basis; and weekly compensation up to the amount of 80 per cent of wages paid to the deceased, for 5 years.

However, the limitation in these payment arrangements under the ACC regime are implicitly acknowledged by the role reparation increasingly plays in Worksafe prosecutions. For a start there is the emotional distress suffered by the families of the victims as a consequence of the shootings. So the prosecution fills a financial void caused by the limitations of accident compensation. But is this in itself enough to justify it?

Under the Solicitor-General guidelines, there are two factors that purportedly govern the discretion to prosecute; the evidential test and a public interest test. It has to be assumed Worksafe is satisfied that it has sufficient evidence to provide a reasonable prospect of conviction of MSD. What this evidence is will only come to light as the process winds through the Courts.

But even if the evidence exists, the public interest test has to be satisfied as well before discretion is exercised. Worksafe, in its own prosecution policy lists some of the circumstances that may be taken into account under this public interest test. Death resulting from a breach of the legislation is one of these. Others include a disregard of health and safety requirements that is reckless, or negligent, or both; and that standard of managing health and safety is far below what required and gives rise to significant risk.

The death of employees would have been a significant factor in the exercising of discretion. The extent to which other factors, including those stated above, played a role is, at this stage, less clear.

The use of deterrents is a factor. Non-compliance with law needs not only to have a consequence, but be seen to have a consequence. This encourages other employers to be more vigilant in their own compliance regime. Moreover, the promotion of good health and safety practices may support a prosecution, whereby the lessons learnt from the Ashburton tragedy can then have wider application. Some, understandably, may regard a criminal prosecution as a reasonably blunt instrument to promote good health and safety practices, particularly in these circumstances.

Worksafe is a new independent body created to oversee health and safety law and regulations. It was part of the wider response of Government to the inadequacies revealed through the Pike River Inquiry. New health and safety legislation is also part of this response.

This new legislation requires a more proactive stance by all involved in health and safety, with increased liability for those who do not meet the new standard. However, this has not been passed into law yet. But Worksafe is clearly signalling the type of approach to expect in the future.

Plea discussions and arrangements are likely to be part of the prosecution process. They have got something of a "bad press" due to the controversy surrounding the decision to discontinue prosecutions against Pike River CEO Peter Withall and the associated payments made to funds associated with families of the victims. One of the common perceptions was that no person was being held to account for an eminently avoidable man-made disaster whereby 29 workers lost their lives and instead "blood money" was being paid. Whether this rhetoric matched the harsh realities faced by the prosecution in that case is a matter for debate.

Whether such an arrangement occurs in the Ashburton Winz health and safety prosecution is, at this stage, purely speculative. However, such an arrangement is unlikely to see the same sort of outrage as greeted the Pike River decision.

• Anthony Russell is a principal at Chen Palmer, public and employment law specialists.