We are all working to get better health and safety, employment and environment practices on farm, but this sort of heavy handed approach gets us nowhere. In this case, instead of just telling them to wear a helmet, they should have asked the couple about their health and safety plan. If they didn't have one they should have pointed them in the right direction to develop one. I have heard of drivers convicted of careless driving causing death or injury getting less severe sentences than theirs, and there wasn't even an accident in this case.
These sorts of "example-setting" fines are not just happening in the health and safety scene; the environmental space is seeing some pretty disproportionate penalties handed down, too. One very recently, in which a District Court judge sentenced a company, Hold the Gold, whose sole director/shareholder is a young up-and-coming dairy farmer Bas Nelis, in Hamilton District Court. Bas has won a number of high-profile agribusiness and environmental awards, but was, however, prosecuted by Waikato Regional Council (WRC) for undertaking earthworks and riparian planting on what was thought to be a farm drain, but eventually identified as a waterway.
The details of the case are now on public record, but what I find disturbing was that the defendant pleaded guilty and even the WRC requested he be convicted and discharged, due to remediation and restorative justice having been initiated by the defendant.
Judge Harland still imposed a $16,875 fine plus a conviction. In doing so she quoted from the Sentencing Act 2002 about how she is duty-bound to arrive at such a decision, when it appears there is more than enough recent case law to suggest otherwise.
Interestingly, public persons found guilty of moderate to serious criminal charges are discharged without conviction because it is thought that a conviction would be a slur on their character, and may affect future employment prospects. The difference: these individuals are national sporting representatives who want to travel the world pursuing their dreams. Unfortunately for the rest of the New Zealand public, this benevolence from the judiciary apparently does not exist. It appears that it is Bas' bad luck that he is not a sports star of any note, and that playing in the Putaruru 3rd grade rugby team 10 years ago has no meaning in the eyes of the justice system.
Here is a young guy who has done everything right up to this point, has made a couple of poor decisions around an environmental project that ironically has had an ultimately good result, and yet gets whacked by Judge Harland and her incredibly blunt tool known as the Resource Management Act.
At Federated Farmers we don't condone reckless or criminal behaviour, and totally support prosecutions and sizeable penalties where and when warranted, but I really think Judge Harland has almost gone rogue on this misguided decision, as has the judge on the quad bike helmet case. I can't help but wonder whether it is personal for Judge Harland -- because it just doesn't make sense to undermine the guys leading the charge in improving the environment, and farming sustainably.
What we would all like to see is some proportion and consistency in these judicial decisions.
Mens Rea and Actus Reus are the two components to a crime, and although Bas may have been guilty with the earthworks taking place, there was no intent to harm the environment, only to improve it for all. This was blindingly obvious to the local community and the prosecuting authority, so how did the judge miss it?
More importantly, how is New Zealand missing it? We are answering our problems with regulation and penalties that are not short of bullying. There are rapists and murderers out there who get a more even-handed and balanced approach to their sentencing.
We are dangerously close to setting an irreversible precedent if we don't make a stand on New Zealand's excessively unbalanced approach to achieving a safer and healthier country.
It is much easier to achieve change when you have everyone on board. Let's not become a nanny state or, even worse, a police state.
Andrew McGiven, is Federated Farmers Waikato vice president
