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OSH Tracker

Bull v Utumapu (HC, 12/08/11)

OSH Tracker

Defendant:
Bull v Utumapu
The powers of Department of Labour health and safety inspectors to use interviews for gathering evidence under the HSE Act has been stymied by a recent High Court decision. 
In a ruling which has potentially serious implications for future DoL investigations, Justice Alan MacKenzie has found that a DoL inspector was operating outside her statutory powers by demanding an interview with company directors over a farm fatality (High Court sitting at Palmerston North, August 12). 
DoL inspectors have until now been able to compel a company representative to be interviewed over workplace accidents. The High Court decision, which is binding unless successfully appealed by the DoL, means that they can no longer require such interviews. 
The DoL inspectors can however interview employers by agreement, or provide written questions to be answered. They can inspect sites and source other evidence like documentation. Employees may still be interviewed, although they already have the right to refuse to answer questions. 
In his judicial review into the DoL’s  statutory powers, Justice MacKenzie has also restricted the scope of DoL interviews into possible criminal offences. He has preferred a narrow definition of what is meant by the word “conditions” in s31 of the HSE Act – meaning that DoL inspectors can only require employers to make statements about the physical environment of a workplace, and not systems relating to hazard management. 
The case was taken in relation to Mangaohane Station Ltd, following the death of a man in a farming accident on its property near Taihape. DoL inspector Margaret Utumapu had gone to investigate the death and gave notice she wanted to interview company directors Adrian Bull and Hamish Speedy, relying on the powers in s31(1)(f) of the HSE Act. 
The directors raised objections to the DoL procedures, and after agreement could not be reached the company sought a judicial review. The company’s lawyers said while the directors were willing to provide information, it would not be in an uncontrolled manner, without prior notice of the issues of questions they were required to answer. 
Utumapu had responded that as it was a criminal investigation the DoL did not provide actual questions, but outlined areas they would focus on such as roles and responsibilities, the management of OHS, and practices in the workplace. 
But Justice Mackenzie has ruled that DoL interviews of employers in relation to possible criminal proceedings were effectively in breach of their right to silence. He said the NZ Bill of Rights Act 1990 affirmed a right of silence in two situations – when a person was arrested or detained, and when compelled as a witness. Justice MacKenzie further noted that the right to silence was also not limited to those specific examples, as common law had long recognised it went beyond them. 
Under s31 DoL inspectors can conduct inquiries of an employer, or another person in control of the workplace, including requiring them to provide statements in any form about the conditions, material or equipment that affected the safety or health of employees who worked there. 
Justice MacKenzie said in this case the company director was not the employer, which the DoL now accepted, so could not be required to undergo such an interview. Where the employer (Mangaohane Station Ltd) was not a natural person, Justice MacKenzie did not believe that the inspector was empowered to nominate or require the employer to nominate an individual to undergo an interview on its behalf. 
The company’s lawyers had also argued that in any interview the word ‘conditions’ under s31 should be defined as the physical work environment, not the systems and methods around hazard identification and management. 
The DoL lawyers argued that was too inflexible as the narrower approach would thwart the inspector’s ability to meet their obligations to investigate breaches of the HSE Act. Obvious questions in an interview would include whether there were hazards in the workplace, and what steps had been taken to manage them. To not be able to make such inquiries would defeat the purpose of the legislation. 
The DoL lawyers said the existence and effectiveness of OHS management, and to what degree employees or managers turned their minds to hazards, were the very things that an inspector ought to concern themselves with. “Why would parliament pass a law that enabled the inspector to get into the workplace, and then substantially hobble their capacity to carry out their statutory function once they got there?” 
Justice Mackenzie said such an argument would be forceful if the powers were limited only to matters relating to the identification and remediation of hazards, whether death or injury was caused by a hazard, and steps taken to eliminate or reduce that hazard. 
But he concluded that was not the context in which the DoL sought to invoke its powers, and that the interviews were requested in the context of possible criminal offences. “Powers which are exercisable for that purpose engage the possible application of the right to silence.” 
In his view, the wider interpretation of the word ‘conditions’ would therefore conflict with the right to silence, so to reconcile that conflict it should be read in the narrower sense. 
Justice Mackenzie also noted there were other ways in which statements could be required than by conducting an interview, which did not raise the same potential conflicts. 
Kensington Swan partner Grant Nicholson told Safeguard it was a bad result for the DoL and he expected it would be appealed. 
Nicholson said the decision would not prevent employers agreeing to be interviewed by a DoL inspector, and most ‘good’ employers would likely cooperate with an inquiry. “But for others there is now more wriggle room to avoid answering questions.” 
Nicholson said while the DoL could still ask written questions and seek documentation, the High Court ruling would create difficulties for inspectors to get a true picture of what had happened in an incident. “It definitely limits the scope of questioning.” 
He said there was now uncertainty for both the DoL and employers 
over the scope of  the phrase “conditions, material or equipment that affect the safety or health of employees who work there.” The Court had not offered conclusive guidance on the exact limits of what the phrase meant, he said. 
Nicholson said Justice Mackenzie had upheld both the common law right to silence and the rights of people to refrain from making statements under the Bill of Rights Act where they were detained in a criminal investigation. 
The DoL would have to improve its disclosure to employers to enable them to properly decide when they need to assert their right to silence, Nicholson said. 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Vehicle - offroad (eg ATV, tractor)
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 0
Defendant:
Bull v Utumapu
The powers of Department of Labour health and safety inspectors to use interviews for gathering evidence under the HSE Act has been stymied by a recent High Court decision. 
In a ruling which has potentially serious implications for future DoL investigations, Justice Alan MacKenzie has found that a DoL inspector was operating outside her statutory powers by demanding an interview with company directors over a farm fatality (High Court sitting at Palmerston North, August 12). 
DoL inspectors have until now been able to compel a company representative to be interviewed over workplace accidents. The High Court decision, which is binding unless successfully appealed by the DoL, means that they can no longer require such interviews. 
The DoL inspectors can however interview employers by agreement, or provide written questions to be answered. They can inspect sites and source other evidence like documentation. Employees may still be interviewed, although they already have the right to refuse to answer questions. 
In his judicial review into the DoL’s  statutory powers, Justice MacKenzie has also restricted the scope of DoL interviews into possible criminal offences. He has preferred a narrow definition of what is meant by the word “conditions” in s31 of the HSE Act – meaning that DoL inspectors can only require employers to make statements about the physical environment of a workplace, and not systems relating to hazard management. 
The case was taken in relation to Mangaohane Station Ltd, following the death of a man in a farming accident on its property near Taihape. DoL inspector Margaret Utumapu had gone to investigate the death and gave notice she wanted to interview company directors Adrian Bull and Hamish Speedy, relying on the powers in s31(1)(f) of the HSE Act. 
The directors raised objections to the DoL procedures, and after agreement could not be reached the company sought a judicial review. The company’s lawyers said while the directors were willing to provide information, it would not be in an uncontrolled manner, without prior notice of the issues of questions they were required to answer. 
Utumapu had responded that as it was a criminal investigation the DoL did not provide actual questions, but outlined areas they would focus on such as roles and responsibilities, the management of OHS, and practices in the workplace. 
But Justice Mackenzie has ruled that DoL interviews of employers in relation to possible criminal proceedings were effectively in breach of their right to silence. He said the NZ Bill of Rights Act 1990 affirmed a right of silence in two situations – when a person was arrested or detained, and when compelled as a witness. Justice MacKenzie further noted that the right to silence was also not limited to those specific examples, as common law had long recognised it went beyond them. 
Under s31 DoL inspectors can conduct inquiries of an employer, or another person in control of the workplace, including requiring them to provide statements in any form about the conditions, material or equipment that affected the safety or health of employees who worked there. 
Justice MacKenzie said in this case the company director was not the employer, which the DoL now accepted, so could not be required to undergo such an interview. Where the employer (Mangaohane Station Ltd) was not a natural person, Justice MacKenzie did not believe that the inspector was empowered to nominate or require the employer to nominate an individual to undergo an interview on its behalf. 
The company’s lawyers had also argued that in any interview the word ‘conditions’ under s31 should be defined as the physical work environment, not the systems and methods around hazard identification and management. 
The DoL lawyers argued that was too inflexible as the narrower approach would thwart the inspector’s ability to meet their obligations to investigate breaches of the HSE Act. Obvious questions in an interview would include whether there were hazards in the workplace, and what steps had been taken to manage them. To not be able to make such inquiries would defeat the purpose of the legislation. 
The DoL lawyers said the existence and effectiveness of OHS management, and to what degree employees or managers turned their minds to hazards, were the very things that an inspector ought to concern themselves with. “Why would parliament pass a law that enabled the inspector to get into the workplace, and then substantially hobble their capacity to carry out their statutory function once they got there?” 
Justice Mackenzie said such an argument would be forceful if the powers were limited only to matters relating to the identification and remediation of hazards, whether death or injury was caused by a hazard, and steps taken to eliminate or reduce that hazard. 
But he concluded that was not the context in which the DoL sought to invoke its powers, and that the interviews were requested in the context of possible criminal offences. “Powers which are exercisable for that purpose engage the possible application of the right to silence.” 
In his view, the wider interpretation of the word ‘conditions’ would therefore conflict with the right to silence, so to reconcile that conflict it should be read in the narrower sense. 
Justice Mackenzie also noted there were other ways in which statements could be required than by conducting an interview, which did not raise the same potential conflicts. 
Kensington Swan partner Grant Nicholson told Safeguard it was a bad result for the DoL and he expected it would be appealed. 
Nicholson said the decision would not prevent employers agreeing to be interviewed by a DoL inspector, and most ‘good’ employers would likely cooperate with an inquiry. “But for others there is now more wriggle room to avoid answering questions.” 
Nicholson said while the DoL could still ask written questions and seek documentation, the High Court ruling would create difficulties for inspectors to get a true picture of what had happened in an incident. “It definitely limits the scope of questioning.” 
He said there was now uncertainty for both the DoL and employers 
over the scope of  the phrase “conditions, material or equipment that affect the safety or health of employees who work there.” The Court had not offered conclusive guidance on the exact limits of what the phrase meant, he said. 
Nicholson said Justice Mackenzie had upheld both the common law right to silence and the rights of people to refrain from making statements under the Bill of Rights Act where they were detained in a criminal investigation. 
The DoL would have to improve its disclosure to employers to enable them to properly decide when they need to assert their right to silence, Nicholson said. 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Vehicle - offroad (eg ATV, tractor)
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 130

Judgment Text

RESERVED JUDGMENT OF MACKENZIE J 
MacKenzie J
Background 
[1]
On 8 March 2011 Mr Whale, an employee of Mangaohane Station Limited, died tragically as a result of a farming accident on Mangaohane Station near Taihape. The Department of Labour (the Department) began an investigation under the Health and Safety in Employment Act 1992 (the Act). Ms Utumapu, an inspector appointed under s 29 of the Act, is conducting the investigation. Mr Bull and Mr Speedy are both directors of Mangaohane Station Limited. Mr Speedy is also the farm manager. In the course of her investigations, Ms Utumapu gave notice that she wished to interview Mr Bull and Mr Speedy. She relied on the powers in s 31(1)(f) of the Act. Mr Bull and Mr Speedy, through their lawyers, raised objections to the procedures adopted by the Department. There was correspondence, and ultimately this proceeding was issued on 18 April 2011, seeking judicial review of the exercise of the statutory powers under the Act. The interviews have not taken place pending the hearing of this proceeding. 
[2]
The request for interviews was first made orally to Mr Bull on 18 March 2011. The request was to interview Mr Bull, Mr Speedy and Mr Henson. The request so far as it relates to Mr Henson is not in issue in this proceeding. Mr Bull sought legal advice. On 22 March, his lawyers, Cooper Rapley, acting on behalf of the company and the three individuals, wrote to the Department saying: 
“The people in question are willing to provide information required as part of your investigation but not in an uncontrolled manner without prior notice of the issues or questions they are required to answer. In addition they wish to consult with us and that is not possible until late next week. 
This letter advises you that: 
(a)
The scheduled interview will not proceed; 
(b)
We request a written summary of the questions intended to be directed to the intended interviewees; 
(c)
We request under the OIA copies of all documents, manuals, investigation results or other related documentary information in your possession connected with or relating to your enquiries. 
Statements will be provided once the information requested has been supplied and we have met with the interviewees. We would therefore appreciate your prompt supply of the information. ”
[3]
The Official Information Act request in paragraph 4(c) was referred to the appropriate officer within the Department. The defendant replied to the other points raised by letter dated 1 April 2011 as follows. She said: 
“I am able to supply information to you regarding the interview process. As you know it is my duty to interview relevant persons in order to gather information for the investigation being carried out by the Department of Labour. Please refer to sections 30, 31, and 33, of the Health and Safety in Employment Act 1992. 
As this is a criminal investigation the Department do not provide actual questions to be asked. However, we can indicate the general areas that the questions will focus on. 
These are: 
Questions regarding the relationships, roles and responsibilities of those interviewed and others in the workplace. 
Questions regarding the management of health and safety in the workplace. 
Questions regarding health and safety practices in the workplace, including conditions, materials, or equipment that affect the safety or health of employees who work or have worked on Mangaohane Station. 
We wish to interview the above mentioned persons as we have ascertained that: 
Mr Speedy was the Station Manager, and the person in control of the place of work on the day of the fatality; 
Mr Henson was the first person at the accident scene and is able to provide information regarding the accident scene; 
Mr Bull is the major Director and may be required to answer questions on behalf of Mangaohane Station Limited. 
We require a statement from a person with authority to speak on behalf of the Company. This may be Mr Bull or Mr Speedy, or another person. ”
[4]
Cooper Rapley raised several further points in a letter of 7 April, to which the defendant replied on 11 April. The defendant made it clear that she was exercising her powers as a health and safety inspector and that the requirement to attend an interview was made pursuant to s 31(1)(f) of the Act. By letter dated 15 April, the Department advised that the information requested under the Official Information Act 1982 was being withheld in reliance on s 6(c) of that Act (relating to information likely to interfere with the investigation of offences). This application for judicial review was issued on 18 April. 
[5]
Section 31, as relevant, provides: 
“(1)
For the purpose of performing any function as an inspector, any inspector may at any reasonable time enter any place of work and— 
(a)
Conduct examinations, tests, inquiries, and inspections, or direct the employer or any other person who or that controls the place of work, to conduct examinations, tests, inquiries, or inspections: 
(b)
Be accompanied and assisted by any other people and bring into the place of work any equipment necessary to carry out the inspector's functions: 
(c)
Take photographs and measurements and make sketches and recordings: 
(d)
Require the employer, or any other person who or that controls the place of work, to ensure that the place of work or any place or thing in the place of work specified by the inspector is not disturbed for a reasonable period pending any examination, test, inquiry, or inspection: 
(e)
Require the employer, or any other person who or that controls the place of work, to produce documents or information relating to the place of work or the employees who work there and permit the inspector to examine and make copies or extracts of the documents and information: 
(f)
Require the employer, or any other person who or that controls the place of work, to make or provide statements, in any form and manner the inspector specifies, about conditions, material, or equipment that affect the safety or health of employees who work there. 
(1A)
An inspector may do any of the things referred to in subsection (1), whether or not— 
(a)
the inspector or the person whom the inspector is dealing with is in the place of work; or 
(b)
the place of work is still a place of work; or 
(c)
the employer's employees work in the place of work; or 
(d)
the person who was in control of the place of work is still in control of it; or 
(e)
the employer's employees are still employed by the employer; or 
(f)
in respect of a document or information, the document or information is— 
(i)
in the place of work; or 
(ii)
in the place where the inspector is; or 
(iii)
in another place. 
 
(6)
No person is required on examination or inquiry under this section to give any answer or information tending to incriminate the person. ”
[6]
In their statement of claim, the plaintiffs allege that the defendant has exercised the following statutory powers: 
“(a)
A requirement for the plaintiffs to submit to an interview on the basis that they are duty bound to do so pursuant to s 31(f) and s 47 HASEA pursuant to a letter dated 11 April 2011; 
(b)
A refusal to supply information as to the nature and scope of the intended interview sufficient to fairly inform the plaintiffs of the information that is required as part of the investigation pursuant to letters dated 1 April 2011 and 11 April 2011; 
(c)
A refusal to supply documents relevant to the inquiry that may be relevant to the interviews. ”
[7]
Counsel for the defendant acknowledges that the defendant clearly did exercise a statutory power when she notified the plaintiffs that they were required for interview. Counsel submits that the refusal to supply information is an aspect of the way that power was exercised, rather than being a further exercise of power. 
The issues 
[8]
In their submissions, counsel for the plaintiffs formulate three issues. 
“(a)
Was the interview requisition valid and what is the permissible scope of a demand for a statement under s 31(1)(f). Specifically how wide is the meaning of the term conditions that affect the safety or health of employees. (Issue 1); 
(b)
Is Hamish Speedy entitled to a transcript of his statement recorded on 8 May 2010 based on legitimate expectation? (Issue 2); 
(c)
If the scope of s 31(1)(f) is as wide as the inspector argues it is, then the next issue is whether information gathered in the inspector's investigation should be disclosed as part of a requisition under s 31(1)(f) in order for a person to make an informed assessment of how, whether and when to exercise the right against self-incrimination in s 31(6). (Issue 3). ”
[9]
A further issue was raised in submissions, relating to the position of Mr Bull. He is a director of Mangaohane Station Limited, which is the employer, but is not himself the employer. He is not a person in control of the workplace. The susceptibility of Mr Bull to a requirement under s 31(1)(f) is therefore put in issue by the plaintiffs. 
The scope of the s 31(1)(f) power 
[10]
The essence of the plaintiffs' submission on the issue in [8](a) is that s 31(1)(f) must be interpreted and applied having regard to the existence of an overarching right of silence. The provision qualifies, or partially removes, the right to silence, but not the right to self incrimination, which is preserved by subs (6). Counsel submits that in these circumstances the legitimate scope of the provision is limited to questions on physical conditions, materials, and equipment. 
[11]
The New Zealand Bill of Rights Act 1990 (BORA) affirms a right of silence in two situations. Under s 23(4), persons arrested or detained have the right to refrain from making any statement and to be informed of that right. Under s 25(d), a right not to be compelled to be a witness or to confess guilt is one of the minimum standards of criminal procedure applicable to everyone charged with an offence. However, those specific rights do not encompass the full extent of the right to silence. The common law has long recognised a “right of silence” going beyond those rights specifically affirmed in BORA.1
| X |Footnote: 1
Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA)Has Cases Citing which are not known to be negative[Green]  at 398 and 404. 
Section 28 of BORA provides that an existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in the Bill of Rights or is included in only part. 
[12]
In R v Director of Serious Fraud Office ex parte Smith, Lord Mustill described “the right of silence” in these terms:2
| X |Footnote: 2
R v Director of Serious Fraud Office ex parte Smith [1993] AC 1 (HL)Has Cases Citing which are not known to be negative[Green]  at 30-31. 
 
“I turn from the statutes to ‘the right of silence.’ This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified: 
(1)
A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies. 
(2)
A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them. 
(3)
A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind. 
(4)
A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock. 
(5)
A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority. 
(6)
A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial. 
Each of these immunities is of great importance, but the fact that they are all important and that they are all concerned with the protection of citizens against the abuse of powers by those investigating crimes makes it easy to assume that they are all different ways of expressing the same principle, whereas in fact they are not. In particular it is necessary to keep distinct the motives which have caused them to become embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a ‘right to silence.’ …  ”
[13]
That specific immunity, in the terms described by Lord Mustill, is not fully encompassed in s 23(4) of BORA. In R v Goodwin, Richardson J said:3
| X |Footnote: 3
R v Goodwin [1993] 2 NZLR 153 (CA)Has negative litigation history or citing cases, having been wholly or partly reversed or overruled[Red]  at 191. 
 
“That is not the end of any inquiry. The Bill of Rights Act does not displace other statutory and common law protections. Anyone questioned by the police, whether arrested or not, continues to be entitled to challenge the admissibility of any inculpatory statement on the traditional grounds that the statement was not shown to be made voluntarily or that it should be excluded on grounds of unfairness; and the Judges' Rules relating to the interrogation of suspects and persons in custody provide some guidance for the exercise of the fairness discretion. In this regard the recent House of Lords decision in Smith v Director of Serious Fraud Office [1992] 3 All ER 456 contains an extended discussion of disparate immunities which are conventionally grouped under the title of the right of silence but which, as Lord Mustill observes at p 463, differ in nature, origin, incidence and importance and also as to the extent to which they have been encroached on by statute. And, as Lord Mustill also observes at p 474, rules relating to questioning of persons in custody although expressed in terms of directions to investigating officers are in essence a development of the law relating to the admissibility of evidence. But the important point for present purposes is that whether or not s 23 is also applicable does not affect the right to challenge the admissibility of the statement on the traditional grounds. ”
[14]
Parliament is to be presumed to have intended not to abridge fundamental principles and freedoms, except by clear language. Where a statute impinges upon a fundamental principle, the legislation must be construed so as to infringe as little as possible the fundamental principle involved. As the learned authors of Statute Law in New Zealand state:4
| X |Footnote: 4
J F Burrow and R I Carter (eds) Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 319-320. 
 
“Courts strive to ensure that, if possible, the interpretation placed on legislation should accord with certain accepted values and principles of our legal system. These are often said to create ‘presumptions’ of interpretations. Many of them have been fundamental in our law for a very long time. Many of them existed long before there was talk of the Bill of Rights, but in a sense they do constitute a kind of judicially created Bill of Rights. Many, but by no means all, of them have been put in statutory form in the New Zealand Bill of Rights Act 1990. ”
[15]
It is clear that the investigation which the defendant is conducting is an investigation into possible offences under the Act. The proposed interviewees must, in these circumstances, be regarded as “persons under suspicion of criminal responsibility” in terms of the third specific immunity referred to by Lord Mustill. Mr Powell accepts that the defendant, in conducting the required interviews, would be a person in a position of authority for the purposes of that immunity, as Lord Mustill has defined it. I consider that that specific immunity is relevant to the interpretation of s 31 of the Act. 

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