Lees-Galloway Iain: Health and Safety Reform Bill — In CommitteeText is incorporated into the Bound VolumeLees-Galloway Iain: Health and Safety Reform Bill — In Committee[Sitting date: 25 August 2015. Volume:708;Page:6089. Text is incorporated into the Bound Volume.]IAIN LEES-GALLOWAY (Labour—Palmerston North): I would like to speak specifically to Supplementary Order Paper 101 which is in my name and Supplementary Order Paper 107 which is the name of Marama Fox. They both seek to amend clause 167B which is found in Part 4 of the Health and Safety Reform Bill. They make important amendments to the limitation period for bringing a private prosecution. They have been proposed by the two of us because of the interaction of the various clauses relating to limitation periods for prosecution—that is clause 167 and clause 167A through to clause 167C.It is a bit of a technical loophole but it is an important one for the Committee to address because the way that those various clauses interact means that WorkSafe has essentially 2 years in which to bring a prosecution. So if WorkSafe determines that there has been a breach of the Health and Safety Reform Bill and that it may meet the criteria for bringing a prosecution it has got 2 years to decide whether or not to bring that prosecution. At the same time those who are wishing potentially to bring a private prosecution in the event that WorkSafe decides not to prosecute also have a 2-year limitation. Actually WorkSafe initially has 12 months in which to bring its prosecution but it can apply for up to an additional 12 months.If WorkSafe takes just the 12 months that it is ordinarily able to take under clause 167 and if it decides after that 12 months that it is not going to take a prosecution then anybody wishing to take a private prosecution has 12 months in which to take that prosecution. That is perfectly acceptable. We are certainly very comfortable with that. However if WorkSafe applies for and receives an additional 12 months and then takes the full 12 months and decides not to prosecute then there is no time remaining for anybody to take a private prosecution. It may be rare for this to occur and it may be unlikely for this to occur but it is certainly possible for this to happen under the legislation as it is written. WorkSafe could decide not to prosecute and nobody else would have the right to prosecute either.What I have proposed under Supplementary Order Paper 101 is for there to be a 6-month extension so that from the point that WorkSafe decides not to prosecute there would be a 6-month window in which a private prosecution could be taken. I took this proposal to members around the House one of whom was Marama Fox on behalf of the Māori Party and I understand that as a result—Marama Fox certainly indicated that the Māori Party could support that proposal from the Labour Party—of negotiations with that Government party perhaps because the National Party could not bring itself to support a Labour amendment the Māori Party has proposed a 3-month extension. I think that that is a little short to be honest. I think that 6 months gives a fair window for a private prosecution to be brought but certainly introducing a 3-month window is an improvement on the situation that we have right now.Private prosecutions are actually incredibly important. They are an important check on the regulator. We have had two important examples recently of where WorkSafe and its predecessor organisations decided not to prosecute and the Council of Trade Unions decided that it would take a private prosecution. That was an important step because in two cases that the courts have actually decided onrecently the private prosecution brought by the Council of Trade Unions was successful. In fact it was with incredible ease that the prosecution was successful. It was with so much ease that there is a considerable question mark hanging over the decision of the regulator not to pursue prosecution. It was an important check on the regulator saying actually that these were two important cases where the regulator ought to have pursued prosecution. Whether the regulator thought that it was unlikely that it would get a decision in its favour or whether it thought it was going to be too costly—I do not know what drove the decision not to prosecute. Clearly the ease with which the Council of Trade Unions got successful prosecutions should give WorkSafe pause for thought.In my view that is the system working. We need to have that check on the regulator to actually be able to expose those instances where the regulator frankly gets it wrong and it gives it an opportunity to learn from it so that in future when it has the decision in front of it about whether or not to prosecute it will be able to look back on the results of those private prosecutions and perhaps pursue a different course of action. It would be a shame if we found ourselves in the situation that is currently possible with the clauses drafted in the fashion that they are that a private prosecution could not be taken.Just recently we had the case of loader driver Charles Finlay who in 2013 was crushed to death by a log while he was working in the dark. WorkSafe investigated but said that it could not find enough evidence of wrongdoing to prosecute the 45-year-old’s employer M&A Cross Ltd. But M&A Cross Ltd actually pleaded guilty. That was how easy it was to get a prosecution. When the New Zealand Council of Trade Unions took a private prosecution the employer actually pleaded guiltyimmediately. So I think that is a clear demonstration that WorkSafe got that one wrong. Also Puketi Logging the employer of 19 year-old forestry worker Eramiha Pairama was found guilty of a charge under the Health and Safety in Employment Act relating to his death in 2013. The employer was found to have failed to take all practicable steps to provide its employee with a safe working environment and particularly to ensure that he was not exposed to the dangers of work while being expected to manage on his own. These are two important cases that the Council of Trade Unions has taken and has been successful with.We on this side of the House see this ability to take private prosecutions as an absolutely vital component of the overall system. Obviously the regulator WorkSafe plays an important role in enforcing the law but we also have to have the ability—especially for the likes of the unions—to be able to play our part in enforcing the law as well. When WorkSafe fails in its duty or just makes a wrong call—I am not saying that there is any dereliction of duty on the part of WorkSafe; just a decision that turned out in the long run to be the wrong one—there should be the ability for the Council of Trade Unions or anyone else for that matter to take a private prosecution.I strongly urge members to support my amendment. I think the 6-month window is a more appropriate approach to take but certainly my understanding is that the Government plans to support the amendment in the name of Marama Fox. I am glad that by proposing the 6-month window we have been able to manoeuvre the Government into supporting a 3-month window which is certainly an improvement on the current situation. It is a shame that we were unable to settle this in the Transport and Industrial Relations Committee. I thought for a period of time that this was going to be settled there but unfortunately it was rejected by the MPs. I do urge members to support preferably my Supplementary Order Paper but certainly Marama Fox’s Supplementary Order Paper on this matter.