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Safeguard Magazine

The law: Crown not exempt

Crown agencies have only rarely been prosecuted under the HSE Act. CHARLES McGUINNESS considers the history in the context of a current case.

Worksafe NZ has laid one charge in the Wellington District Court against the Ministry of Social Development (MSD). This relates to the shooting at the MSD Ashburton office on 1 September 2014 in which two Work and Income (WINZ) staff were killed and another was injured. WINZ is a service delivery arm of MSD.

The charge, under section 6 of the HSE Act, alleges that MSD failed to take all practicable steps to ensure the safety of its employees while at work.

Prosecutions of the Crown under the HSE Act do not appear to be very common. Such charges were only made possible after the Cave Creek tragedy and the subsequent enactment of the Crown Organisations (Criminal Liability) Act 2002 (the COCL Act).

Many readers will recall that tragedy, when fourteen people died when a viewing platform collapsed in Paparoa National Park on 28 April 1995. In the aftermath of recriminations against the Department of Conservation and its poor processes, New Zealand’s “she’ll be right” attitude seemed appalling.

The inability to sue for personal injury in New Zealand – because of the ACC legislation – further highlighted questions of culpability and penalty where there were alleged breaches of obligations by the Crown to keep individuals safe from harm. It appeared the Crown could “get away with” egregious breaches of health and safety obligations.

In the Royal Commission of Inquiry Report on Cave Creek, Judge Noble stated: “Currently departments are required to comply with the [HSE Act], but because they are exempt from prosecution, enforcement of compliance is difficult. Enabling prosecution will also significantly raise the incentives for departmental compliance.”

The Royal Commission recommended “enabling the prosecution of Crown organisations for offences under the … [HSE Act]…” The COCL Act was the result.


In determining to prosecute MSD, Work-Safe would need to justify the laying of charges on the same basis as any other prosecuting body (including private prosecutions), such as the Police.

In effect, two tests need to be met under the “Test for Prosecution” found in the Solicitor-General’s Prosecution Guidelines before a prosecution may proceed: evidential sufficiency and public interest.

The evidential test will require an assessment by WorkSafe (or any other prosecutor) of whether the evidence to be presented to the Court will satisfy the “beyond reasonable doubt” test to provide a reasonable prospect of conviction. In practice, given the current tight timeframes for laying charges under the HSE Act, charges are sometimes laid before the investigation and evidence collection is complete.

The public interest test does not question whether the public is interested in an event or prosecution. It is a discretionary test which may consider the level of harm arising from the alleged breach, including death. The interest in having a transparent and open court proceeding could also be considered, as well as any perceived disregard by the accused of health and safety requirements including recklessness, negligence, or both.


The charges allege there was a failure by MSD to take all practicable steps to ensure the health and safety of its employees in Ashburton. However the seeming randomness of this event and the inability to prevent such actions raises questions: how could MSD keep all of its frontline people safe from individuals whose actions appear to be irrational and unpredictable?

WorkSafe NZ must be satisfied that it has sufficient evidence to provide a reasonable prospect of conviction. The exact nature of the evidence will come out in the trial, but the evidence could possibly include prior knowledge of or warnings about the attacker and threats to WINZ staff.

Then the question of whether there is a public interest in a prosecution arises (including weighing up the discretionary factors noted above).


Section 8 of the COCL Act prevents the imposition of a fine against a Crown organisation on conviction.

Reparations and a record of conviction are therefore the available penalties. The policy argument against imposing fines against the Crown was that it is simply the Crown taking its own money from another Crown organisation. The argument seems hollow these days, when all Crown organisations have their own budgets and must make do with the funds they are allocated. If tens or hundreds of thousands of dollars are taken in fines, that should be a wake-up call to ensure compliance with health and safety obligations.

Importantly, the statute bar against fining the Crown is expected to change once the Health and Safety Reform Bill is enacted, probably later this year.

An award of reparations (not damages for personal injury, which are barred by ACC legislation) to a victim is the payment of any sum that the court thinks fair and reasonable to compensate any person who because of the offence has suffered loss of (or damage to) property, emotional harm, loss or damage consequential to any emotional or physical harm or loss of (or damage to) property.

Victims are defined in the Sentencing Act as including a person against whom an offence is committed by another person; and a person who, because of an offence, suffers physical injury, or loss of (or damage to) property.

Reparations are able to be awarded by the court to victims and their families. In the Pike River tragedy the court approved a payment of $110,000 to each of the victims’ families by the insurers. In Creeggan v NZDF (noted below) reparations of $70,000 were awarded.

In the MSD case, payments would be based on the emotional distress suffered by the families of the victims as a consequence of the shootings. Therefore the prosecution would enable the award of reparations by the court. There would also be a process whereby the families of the victims would have the opportunity to present victim impact statements, a way in which they could take part in the justice system should they wish to.

A further reason to prosecute MSD, in the public interest, is deterrence. Breaching the HSE Act should attract consequences, and the only way to show breach is by following through with the prosecution.

As an example of deterrence, it was only following an application by Sergeant Creeggan to prosecute the New Zealand Defence Force over the Anzac Day helicopter crash (in which he was badly injured) that WorkSafe then prosecuted NZDF over the drowning death of Private Ross in Lake Moawhango, near Waiouru. (Until then there had only ever been one prosecution of NZDF under the HSE Act, and that was taken by the Police for a road accident involving a Unimog).

NZDF pleaded guilty in Private Ross’ case, and at sentencing the judge was asked to find a “high level of culpability” by NZDF. The judge agreed, stating “Employers should not wait until a tragedy occurs to review processes and procedures that take place during the course of their business.” In their statement NZDF said “[We are] striving to improve [our] processes and practices to minimise the risk of an incident of this nature occurring again in the future.” NZDF also apologised to the family of Private Ross and to New Zealanders generally.

It therefore seems that prosecutions themselves, and findings by the courts of wrongdoing and culpability, are an important way of ensuring that all employers remain cognisant of their obligations.


Returning to the MSD case, WorkSafe will be concerned to ensure that they have complied with their prosecutorial obligations, and are proceeding without fear or favour, to hold MSD accountable to the requisite standard.

The history of relatively weak enforcement of health and safety prosecutions against the Crown may be a consideration. WorkSafe will take confidence from the fact that the court will test the evidence, and WorkSafe in its role as New Zealand’s workplace health and safety regulator will have fulfilled its mandate.

Charles McGuinness is a senior associate at DLA Piper.

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