Bull v Utumapu HC Palmerston North CIV-2011-454-260 [2011] NZHC 937; [2011] NZAR 584 (12 August 2011)

Last Updated: 22 October 2011

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CIV-2011-454-260}

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN ADRIAN BULL HAMISH SPEEDY Plaintiffs

AND MARGARET UTUMAPU Defendant

Hearing: 20 July 2011

(Heard at Wellington)

Counsel: J W Maassen and N Jessen for Plaintiffs

A M Powell and N Szeto for Defendant

Judgment: 12 August 2011 at 4:00 PM

_{I direct the Registrar to endorse this judgment with a delivery time of 4pm on the}

12th day of August 2011.

_{RESERVED JUDGMENT OF 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.}

BULL V UTUMAPU HC PMN CIV-2011-454-260 12 August 2011

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 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

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.

1 _{Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398 and 404.}

2 _{R v Director of Serious Fraud Office ex parte Smith [1993] AC 1 (HL) at 30-31.}

(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

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

3 R v Goodwin [1993] 2 NZLR 153 (CA) at 191.

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

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.

[16] The first question then is whether s 31(1)(f) extends to enable an inspector who is conducting inquiries as part of a criminal investigation to require an employer or other person in control of the place of work to answer questions in an interview for which no notice has been given of the subject matter of the questioning, beyond advice that the statement that the questions will include matters relating to

_{conditions, material, or equipment in the workplace.}

4 J F Burrow and R I Carter (eds) Statute Law in New Zealand (4th ed, LexisNexis, Wellington,

2009) at 319-320.

[17] The power in s 31(1)(f) to require a person ―to make or provide statements, in any form and manner the inspector specifies‖ does not in ordinary parlance necessarily include a power to conduct an interview. That wording is substantially different from the wording used in other provisions where the right to silence has been abrogated by statute. For example, s 9 of the Serious Fraud Office Act 1990 provides that a person may be required:

To answer questions with respect to any matter that the director has reason to believe may be relevant to the investigation.

Section 98 of the Commerce Act 1986 provides power to require a person ―to appear before the Commission ... to give evidence, either orally or in writing ...‖.

[18] Despite that difference in wording, in the specific statutory context, I consider that the statute does envisage that one of the ways in which the power may be exercised, at least when the inspector is exercising functions other than the investigation of possible offences, is by requiring a person who is subject to the section to attend an interview.

[19] The functions of an inspector are set out in s 30 which provides:

30 Functions of inspectors

The functions of an inspector are—

(a) To help employers, employees, and other persons to improve safety at places of work, and the safety of people at work, by providing information and education; and

(b) To ascertain whether or not this Act has been, is being, or is likely to be complied with; and

(c) To take all reasonable steps to ensure that this Act is being complied with; and

(d) All other functions conferred on inspectors by this Act or any other enactment.

[20] For all of the functions in (a), (b) and (c), with the exception of that of ascertaining whether or not the Act has been or is being complied with, no question of either of the BORA-affirmed rights to silence, or of Lord Mustill’s third specific

immunity, is likely to arise. In such instances, no question of compliance with those rights will arise in relation to the conduct of an interview.

[21] The position is different where the interview is sought as a means of investigating possible offences. I consider that, in those circumstances, the s 31(1)(f) powers must be exercised in a manner which is consistent with the right of silence. There is nothing in the wording of the provision to indicate that any limitation on any of the BORA rights, or any relevant common law right of silence, is intended. The preservation in s 31(6) of that right in respect of self-incrimination does not convey any indication that any other right of silence is abrogated. The powers must be exercised in a way which is consistent with BORA.

[22] Under s 6 of BORA, a meaning consistent with BORA rights can be given to s 31(1)(f). There are other ways in which a statement can be required than by conducting an interview. Those do not raise the same issues of potential conflict with BORA rights. Section 31(1)(f) therefore does not involve any limits on a BORA right to which s 5 of BORA might apply.

[23] Several consequences follow from that analysis, for the interviews which the defendant wishes to conduct. First, adequate notice must be given of the specific matters to be covered. That is required as a necessary element of the privilege against self-incrimination in subs (6). In Simpson v Ministry of Agriculture and

Fisheries,5 Fisher J held that the obtaining of meaningful advice with respect to the

privilege against self-incrimination in s 79 of the Fisheries Act 1983 required that the person interviewed understand the purpose of the interview and, in broad terms, the interview’s legal significance. Fisher J said:6

Thus in a police station it will usually be possible to give effect to the consultation right only if a telephone is provided so that the suspect can call a lawyer. In the context of an interview under s 79(1)(c), one of the chief objects of the legal consultation will be to give meaningful advice with respect to the privilege against self-incrimination. It would seem difficult to give and receive that advice effectively unless the parties to the consultation appreciate in very broad terms the purpose of the proposed interview, the factual context, the things which the suspect has done, the law which could make that conduct criminal, and hence the risk that if certain admissions are

5 _{Simpson v Ministry of Agriculture and Fisheries (1996) 3 HRNZ 342.}

6 At 353-354.

made they might be self-incriminatory. An appreciation of the law should come from the lawyer and an appreciation of what the suspect has in fact done should come from the suspect. But to complete the picture, a broad indication as to the purpose of the interview, the factual subject-matter, and the type of allegations which the suspect might face, will usually need to come from the fishery officer. Just as the provision of a telephone is implied in order to give practical effect to the consultation right in s 23(1)(b), so I would think it a necessary implication that in most cases the fishery officer will need to provide that information to the suspect or his or her lawyer.

[24] I consider that, in this case, similar considerations apply. The Department’s response to the plaintiffs’ Official Information Act request makes it clear that what is in issue is the investigation of a possible offence. I consider that the inspector must provide a broad indication as to the purpose of the interview and the type of allegations which the interviewee might face.

[25] Second, if the interviewee is suspected of an offence, the way in which that person is required to ―make or provide statements‖ cannot be exercised in a way which would constitute a detention within the meaning of s 23(4) of BORA. That must be so, because if the interviewee were ―detained‖ for the purpose of the interview, the right to refrain from making any statement would be engaged, and that would necessarily frustrate the purpose of the interview. The letter of 1 April 2011 does not identify the way in which attendance at the required interview is to be secured. It will be necessary for the Department to stipulate a time and place at which the interview is to be conducted without, in so stipulating, creating the consequence that the interviewee is detained for the period of the interview. That will not be an easy balance to achieve. In Police v Smith and Herewini, Richardson J

said:7

What then is the concept of detention underlying s 23(1)? The Oxford English Dictionary (2nd ed, 1989) defines ―detain‖ variously as ―To keep from proceeding or going on; to keep waiting; to stop‖ and ―To keep in confinement or under restraint; to keep prisoner.‖ Clearly in the context of s 23(1) something more than merely keeping a citizen waiting is necessary. Equally the threshold should not be set as high as keeping a citizen prisoner before there will be a detention. A distinction must be drawn between deprivation of liberty on the one hand, and a mere temporary restraint of liberty on the other. Whether a person has been detained under an enactment will depend on a close examination of the particular empowering statutory provision and its exercise in the particular circumstances of the case.

7 Police v Smith and Herewini [1994] 2 NZLR 306 (CA) at 316.

A commonsense and practical approach is called for. Thus it will be important to consider the nature, purpose, extent and duration of the constraint. For example the assumption of control over a citizen’s movements is very different from a pause while particulars are provided. As in many areas of the Bill of Rights the answer may involve considerations of fact and degree. At the very least something more than a temporary check, hindrance or intrusion on the citizen’s liberty is required. What beyond that is a sufficient restraint on liberty to come within s 23(1) will depend on the circumstances of the case.

[26] A refusal to continue with an interview may constitute an offence under s 48 of the Act, by obstructing an inspector in performing a function under the Act.8 That consequence might potentially lead to a conclusion that an interviewee could, in certain circumstances, be a person ―detained‖ for the period of the interview. As no interview has yet been conducted, it is not appropriate to address this possibility further.

[27] A further consideration is that an interview may be conducted only with a natural person. This means of exercising the power to require the employer or person in control of a workplace to make or provide statements will necessarily be available only in cases where that person is a natural person. Section 31(1)(f) is not limited in this way. It applies when the employer or person in control of the place of work is not a natural person. The s 31(1)(f) obligation is capable of enforcement against a corporation or other non-natural person. The requirement to make or provide statements can be exercised against a company, by specifying the matters upon which the company is required to make a statement, and requiring that statement to be made in writing. A company can be held responsible for a failure to comply with such a requirement. Where the employer is not a natural person, I do not consider that it is a necessary adjunct of the power to require provision of a statement that the inspector be empowered to nominate, or to require the employer to nominate, an individual to undergo an interview on the employer’s behalf. Mr Bull is not the employer, as the defendant now accepts. The power under s 31(1)(f) does not extend to empowering the defendant to require Mr Bull to undergo an interview

_{as a representative of the employer, Mangaohane Station Limited.}

8. See, for example, Department of Labour, Health and Safety v Price, DC Lower Hutt, CRN 1032018022, 9 September 2002.

[28] The interview must be about ―conditions, material or equipment that affect the safety or health of employees who work there‖. Counsel for the plaintiffs submits that:

14. There are two possible meanings one can give conditions in s.31(1)(f). For the purpose of this paragraph a person is a person to whom s.31(1)(f) applies:

(a) The narrow meaning includes all working conditions and practices related to the physical environment of a workplace that affect health and safety but excludes:

(i) Systemic methods of identifying and addressing hazards adopted by a person; and

(ii) The sufficiency or otherwise of the steps taken to identify or remove hazards by a person; or

(iii) The prior knowledge a person has or had of a particular hazard or risk factor or condition; and

(b) The wider meaning that includes the narrow meaning and

(a)(i)-(iii) as above.

[29] Counsel submits that the narrower meaning is to be preferred. Counsel further submits that the topics identified in the first three bullet points in the letter of

1 April 2011 fall outside the proper meaning of the word ―conditions‖.

[30] Counsel for the defendant submits:

44. On the broad words of the section, the conditions affecting the health and safety of employees would include any workplace systems or practices that were designed to keep the employees safe, and whether or not such systems were put into practice. Since workplaces generally operate on a hierarchy of management, the relationship of the persons who work there, and the relevant lines of reporting and accountability would also constitute conditions that affect the safety and health of employees. It would only be conditions that could have no impact on health and safety o[f] employees that would be excluded from any statement that was required.

45. The applicants offer a competing interpretation of the word

―conditions‖ that would see it confined to the physical conditions of

the workplace. The parameters of the narrower definition are most easily seen in what it would not include if applied. According to the

submissions for the applicants, the Inspector would not be able to

ask about:

45.1 Systemic methods of identifying and addressing hazards adopted by person;

45.2 The sufficiency or otherwise of the steps taken to identify or remove hazards by a person; or

45.3 The prior knowledge a person has or had of a particular hazard or risk factor or condition.

46. The word ―conditions‖ has inherent flexibility, so it is at least possible that it could bear the narrower meaning that the applicants contend for. That possibility is, in the respondent’s submission, extinguished when the purpose of the enactment is examined.

...

51. Through a variety of sections the primary responsibility for ensuring workplace health and safety is sheeted home primarily to the persons who control that place of work and those who employ people to work there and to a lesser extent, the employees themselves.

52. One of the mechanisms for achieving the purpose is a regime of inspection and invigilation by the State, through the office of the Health and Safety Inspector. It is not solely an investigation and prosecution role although those are part of the inspector’s functions. The identification and remediation of hazards before they cause injury is also part of the inspector’s role.

53. It is no surprise that the Health and Safety Inspector is given controlled access to the workplace, necessarily abridging the usual right of quiet enjoyment that the occupier of commercial premises would enjoy, and the ancillary powers necessary to carry out his or her statutory functions. As noted above, the abridgement of that legal right is tempered by the obligation to enter only at a reasonable time, and, where intrusion into a home is necessary, the requirement for prior judicial approval.

54. The Act imposes an obligation to report deaths or other serious harm, and the Act contemplates that there will be a subsequent investigation by an Inspector to determine whether the Act had been complied with. The obvious questions to consider include whether the death or injury was caused by a hazard in the workplace and, if so, whether steps that could have been taken to eliminate or reduce that hazard were taken.

55. The narrow construction of the word ―conditions‖ would not assist the achievement of that purpose. It would thwart it. Perhaps there will be an occasion where the physical presentation of the workplace will tell the inspector all that he or she needs to know, but more often it will be necessary to look at the environment more generally. The existence and effectiveness of management of health and safety in the workplace; the degree to which employees or managers turned their minds to hazards; the extent of prior knowledge of hazards – these are the very things that an Inspector ought to concern themselves with.

56. 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?

(References omitted.)

[31] I consider that there would be considerable force in the submissions of counsel for the defendant if the powers in s 31(1) were limited to investigations which were related only to such matters as the identification and remediation of hazards, whether death or injury was caused by a hazard in the workplace, and steps that could have been taken to eliminate or reduce that hazard. However, that is not the context in which the defendant seeks to invoke the powers. As I have noted, these interviews are requested in the context of an investigation of possible offences. Powers which are exercisable for that purpose engage the possible application of the right to silence, in the way I have discussed. Because of that, two conflicting principles are engaged. First, that an expansive interpretation would be consistent with the statutory purpose of enhancing workplace safety. Second, that the power to compel statements should not impinge on the right of silence.

[32] Reconciling those conflicting principles, I consider that the word

―conditions‖ is properly to be read in the narrower sense described by counsel for the plaintiffs. I do not consider that the matters in the first two bullet points in the letter of 1 April 2011 fall within the scope of the section. The third bullet point refers to a wider range of matters than are included within the words of the section. That must necessarily exceed the boundaries of the section.

[33] For these reasons, I consider that the plaintiffs’ letter of 1 April 2011 does not constitute a valid exercise of the powers conferred by s 31(1)(f).

Entitlement to a transcript of statement

[34] The issue set out in [8](b) relates to a statement which Mr Speedy had earlier given to the inspector. A copy of that transcript has now been made available. No decision is required on this issue.

Disclosure of further information

[35] I have, in dealing with the first issue, addressed the provision of further information. The extent of disclosure required is that which is needed to meet the requirement to specify the ―conditions, materials and equipment‖ to which the statements are to relate, and the requirement to give notice of the purpose of the interview and the allegations which the interviewee might face, so as to enable an informed exercise of the privilege against self-incrimination.

Result

[36] For the foregoing reasons, the plaintiffs’ application is allowed. The requirement for interview made by the defendant’s letter of 1 April 2011 is set aside.

[37] Both counsel accepted that costs should follow the event, and that the appropriate categorisation was Category 2 Band B. There will be costs in favour of the plaintiffs accordingly.

“A D MacKenzie J”

Solicitors: Cooper Rapley, Palmerston North, for Plaintiffs

Crown Law, Wellington for Defendant