How the law let down the Pike River miners and their families [opinion]

What can the Pike River Mine Tragedy families take from the disclosure this week of the details of the $3.41 million pay-out “deal” in documents released this week by Worksafe, the New Zealand Government’s new agency responsible for worker health and safety?

Two months before the prosecution case against former Pike River Coal chief executive, Peter Whittall, was controversially dropped last December, his lawyer Stuart Grieve QC wrote to Crown Law offering a “deal”.

Withdraw the charges and $3.41 million would be paid to the families of the 29 men killed in the mine and the two miners who narrowly escaped death, he stated in his letter to Crown Law.

Although both the Whittall camp and Worksafe have vehemently denied that the payment last December of $3.41 million to the Pike victims was “blood money”, the Grieve letter makes clear that the offer was totally contingent on the department dropping the 12 charges filed against Whittall under the Health and Safety in Employment Act. 

The various New Zealand Government agencies involved in Pike, both before and after the tragedy, have left a well-documented trail of ill-judgement, incompetence and destruction similar to the Pike Company’s management of the mine, such a cruel irony.

The betrayal of the Pike families by the agencies started almost immediately after the first explosion when they knew the mine was on fire and they saw the blast on CCTV footage coming out the portal.

This began the familys’ ongoing mistrust as this vital info was not provided to them for five days and eight briefings. The families seem to be players in a never ending deceitful and cruel farce, these Government agencies are putting the families on a drip feed of anguish every time they act on Pike.

Now the families’ mistrust is further compounded by the explicit details in the Grieve letter. Process, bureaucratic butt covering and money are the priorities it seems.

The families well know the pitfalls of the legal process and the outside chance of a successful conviction to get accountability and hopefully, prevention of future like-disasters, but the New Zealand agencies responsible have hardly been perceived to make even a half-hearted effort to prosecute.

Worksafe’s precursor, the former Department of Labour commissioned two telling reviews of its interaction with Pike, one, the Shanks and Meares Review released in March 2013, dammed the department as “ineffective and dysfunctional…and that some of its inactions contributed to the tragedy.”

Go figure how an agency with this abysmal performance rating then lays charges in the first place and not be charged itself, and then apparently, have  some of its officers who are criticised, be members and chairperson in its panel decision to not produce evidence in the case against the Pike boss, as specifically asked for by Grieve?

The Government has brushed these reports aside and stood back and brazenly says it’s an independent decision by its agencies to drop the charges and stitch up what has all the hallmarks of a special deal, that the Judge said “is not a deal”. The language in the Grieve letter is exactly the same as what Crown Law said to the Court in December.

“If I give you this, you give me that.” That is a deal in anybody’s language surely? Grieve wrote: “we give you $3.41 million, you drop the charges against Whittall.”

The Crown Law statement to the Court links the non-provision of evidence and dropping of charges to a “voluntary” payment of $3.41 million to the Pike families sourced from a Pike directors’ and management insurance policy.

The Worksafe decision to drop the charges at Grieve’s behest adds to the total deception by the many Government agencies involved in the aftermath of Pike.

The Police spent two and a half years on the case until they dropped their enquiry in July 2013 after their then lawyer, Simon Moore QC, (now a High Court judge) had announced a few days after the first explosion in November 2010 that “the Police are undertaking the biggest homicide enquiry in New Zealand’s history at Pike”.

The agencies sole God seems to be process and crafting arrangements that are weighted to letting themselves off the hook, not any focus on accountability for illegal practice aimed at prevention of workplace death in the future.

The New Zealand Government infers that it has put enough taxpayer resources into Pike and its new tombstone legislation and Worksafe agency, but the central issue remains the yawning gap between the intent of the law and the competence of the public servants paid to apply the law.

The regulations existed for the regulators before the tragedy to shut the mine down. The new legislation also relies on human interpretation and Government’s track record on responsibilities, like sheeting home accountability after 29 men are killed in a workplace, is flawed.

Government obviously feels unctuous about what it’s done but they have irresponsibly not scrutinised the disconnect between the prescription of the law and its application, which everyone assumes is essential to the prevention purpose of health and safety legislation.

There is one clear message from the Grieve letter: if you were charged with murder, you would immediately reach for his number. Grieve has done the job in spades for Mr You-Know-Who.

What then, is the likely outcome for the families from the release of the Grieve letter?

No change, except maybe in the smelly fallout from the confirmation of a “blood money” deal, the New Zealand Government shows renewed compassion to many of the families and fully funds inspection of the working areas of the mine, not just the entry tunnel.

Gerard Morris is a former NZ coal industry journalist, three members of his family worked at Pike.

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