Most Read Contributor in New Zealand, September 2016
The Court of Appeal has overturned a High Court decision to
reaffirm the powers of the labour inspectorate and the obligations
on employers to cooperate in the conduct of investigations under
the Health and Safety in Employment Act 1992 (HSEA).
The clarification is timely given that the HSEA is soon to be
substantially strengthened as part of the Government's response
to the Pike River tragedy.
In March 2011, a farmhand was killed when the tractor he was
driving tipped and crushed him. The labour inspector responsible
for investigating the accident, Ms Utumapu, wanted to question two
of the company's directors – a Mr Speedy and a Mr
They insisted upon being told in advance the matters she wanted
to cover. She said that, as the investigation was of a criminal
nature, she was not obliged to provide this information but gave
them an idea of what her general question line would be.
They still declined to cooperate, saying that the notification
from the Ministry of Business, Innovation and Employment
(MBIE) was insufficient and that considerably more detail
MBIE then formally required them to attend an interview under
section 31(1)(f) of the HSEA and advised them they had a statutory
duty to assist under section 47 of the Act. Failure to comply may
be an offence under sections 47, 48 and 50.
Again, they refused to comply. They then filed an application in
the High Court for judicial review of the inspector's actions,
alleging that she was acting unlawfully by requiring them to submit
to an interview.
The High Court
The High Court found in favour of the Directors and MBIE
Allowing the appeal1, the Court of Appeal noted:
the directors should have agreed to the interview and answered
the inspector's questions, or declined to do so with the risk
of criminal sanctions for failing to comply
if they had answered the questions and charges had been laid,
they could later have challenged the admissibility of the evidence
at or before trial
section 31(6) expressly excuses an interviewee from giving any
answer or information that may incriminate him or her
an inspector can stipulate the persons within an organisation
who will be interviewed or asked to provide statements
an inspector is not bound to provide the interviewee with a
broad indication of the purpose of the interview and the type of
allegations which might be made.
The court ordered the directors to participate in an interview
and to answer questions, subject to their privilege against
Our thanks to Heather McKenzie for writing this Brief
1Utumapu v Bull and Speedy COA CA554/2011
[23 May 2013]
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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