9.05.2018

Common Sense prevails – Court of Appeal overturns Bull and Speedy decision

Where did this start?

This litigation arose out of a tragic accident on Mangaohane Station in which an employee was killed. Health and Safety Inspector Margaret Utumapu sought to interview Mr Bull and Mr Speedy (the directors of the business – Mr Speedy was also the farm manager). Through their lawyer, Mr Bull and Mr Speedy requested a summary of the questions that Ms Utumapu was intending to ask, and made an Official Information Act request for all of the Department of Labour’s information with regard to the investigation. Ms Utumapu stated that she would not provide the specific questions (although she did indicate the general areas of proposed questioning) and would not provide the documents as it would jeopardise the investigation. Mr Bull and Mr Speedy applied for judicial review of the decision not to provide the information sought.

What did the High Court find?

In its decision, the High Court decision effectively found that health and safety inspectors’ ability to interview individuals on behalf of a company was limited in a number of respects:

  • The Inspector was required to give advance notice of the specific matters which will form the subject of the interview;
  • That people cannot be ‘detained’ for an interview, otherwise they will be entitled to exercise their Bill of Rights Act rights to silence;
  • The Inspector cannot nominate a representative of the company to answer questions on behalf of the company;
  • Inspectors were not empowered to ask questions about “health and safety practices in the workplace”.

The High Court’s judgment was met with widespread surprise and a healthy dose of confusion – wasn’t the High Court really hobbling the Inspectors’ ability to do their jobs? What was the point of allowing Inspectors the power to enter premises and ask questions if they had to provide a list first, couldn’t talk to a real person on behalf of a company, and weren’t allowed to ask about health and safety practices? It came as no surprise that the Department of Labour appealed.

Court of Appeal’s comments

The Court of Appeal was fairly scathing of the whole case. It noted that instead of applying for judicial review, Mr Bull and Mr Speedy should have either:

  • Submitted to an interview, and declined to answer questions (risking criminal sanctions for failing to cooperate with the investigation); or
  • Answered the questions, and challenged the admissibility of the evidence obtained as a result of the questions if charges were laid against them.

However, the Department of Labour did not force the issue and require the two men to attend an interview.
Instead, the Department of Labour “was apparently content to acquiesce” in the course that Messrs Bull and Speedy were taking. As a result, the time limit for laying any charges relating to the actual accident and the resulting death came and went, with the parties engaged instead in what the Court of Appeal described as “inappropriate and premature” judicial review litigation.

The Court of Appeal’s findings

The Court of Appeal had no hesitation in overturning the High Court’s findings. Justice Harrison noted that the Health and Safety in Employment Act 1992 (“Act”) authorises an Inspector to conduct enquiries; that is, to ask questions, and concluded that this would be meaningless unless there was a correlative obligation to answer them. The Act allows an Inspector to “require” someone to make a statement, and the Court of Appeal concluded that this meaning was plain: the Inspector was entitled to request Mr Bull and Mr Speedy answer questions relating to the enquiry, and imposed corresponding obligations on them to answer.

The Court of Appeal noted that there is a specific statutory right within the Act that allows a person not to answer questions that might tend to incriminate themselves. Given that the specific statutory right was there, the Court of Appeal questioned why so much time had been spent in the High Court on an “unproductive foray” into common law principles on the right to silence.

The Court of Appeal went on to find that a corporate employer can be required to answer questions and make a statement, and that the Inspector is entitled to nominate (by name or position) who makes that statement. As the Court noted: “Any other construction of s31 would enable a company to defeat its purpose, such as by nominating an officer or employee who knew nothing about the subject matter of the enquiry”.

With regard to the question of giving notice of the questions, the Court of Appeal found that there was no such statutory requirement, and that Ms Utumapu’s advice of the general areas upon which questions would focus was sufficient in the interests of fairness and efficiency. Whether the Inspectors decide, in practice, to provide such an indication to all companies remains to be seen. What is clear is that the Act does not require them to do so. In practice, it is likely that a company will have a pretty good idea of what the Inspectors wish to discuss prior to an interview or visit.

On the question of whether the Inspector’s questions should be limited to physical conditions, rather than workplace practices, the Court of Appeal noted that while it was not strictly necessary to deal with this point given the narrow issues on appeal, it disagreed with the High Court’s findings that “conditions” could be limited. To the Court of Appeal, the phrase “conditions” would “plainly cover hours of work and other conditions in the workplace such as harassment or intimidation”. Whether there are any limits on an Inspector’s ability to ask questions or require a statement will turn upon the interpretation of the phrase “conditions” in a particular workplace.

In our view

The Court of Appeal’s decision simply makes sense. Given the purpose and object of New Zealand’s obligations under international conventions, and the overall focus on promoting safety, the High Court’s findings were out of step, and hard to justify.

The Court of Appeal’s judgment will have a limited life-span because, of course, we are expecting to see the repeal of the current Act and a new set of powers for Inspectors in the near future. No doubt the new legislation will ‘tick off’ the matters that have allowed the Bull and Speedy situation to arise. However, the Court of Appeal’s judgment certainly accords with the current focus on first, preventing harm, and secondly, the efficient and effective enforcement of health and safety obligations.

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