WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020

Published 16 May 2022

Application to dismiss charge — duty to ensure health and safety of others — volcanic eruption — statutory interpretation — "work" — Health and Safety at Work Act 2015, ss 9, 12, 29 & 36 — Civil Defence Emergency Management Act 2002 — Criminal Procedure Act 2011, s 147 — Interpretation Act 1999, s 5(1) — WorkSafe New Zealand Act 2013 — Explanatory Memorandum Model Work Health and Safety Bill, August 2016 — National Review into Model Occupational Health and Safety Laws, Second Report to the Workplace Relations Minister’s Council, Commonwealth of Australia, January 2019; Workplace Relations Minister’s Council Response to Recommendations of the National Review — Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 — WorkSafe v YSB Group Limited [2018] NZDC 26771 — WorkSafe v Hastings District Council [2015] NZDC 7574 — WorkSafe v Agricentre South Limited [2018] NZDC 7756 — WorkSafe v Richies Transport Holdings Limited [2019] NZDC 18495 — B v Corona Electrical Limited (DC Manukau CRI-2013-092-6296) — CAA v Sarginson [2020] NZHC 319 — WorkSafe v Dong SH Auckland Limited [2020] NZHC 3368 — WorkSafe v Department of Corrections [2017] NZDC 24865 — Bellett v Cave and Haddow (DC Greymouth CRI-2006-018-689, 30 Nov 2007) — Boland v Safe is Safe Pty Limited [2017] SAIRC 17 — WorkSafe New South Wales v Wagga Motors Pty Limited [2018] NSWDC 242. The defendant was facing a charge under s 36(2) of the Health and Safety at Work Act (the Act), that it had failed to ensure that the health and safety of others was not put at risk from work that it carried out as part of its business or undertaking. The charge arose from the Whakaari eruption of 2019. The allegation was that the defendant had a duty to identify and analyse risks to life from volcanic eruptions on Whakaari and to take steps to eliminate or reduce these risks, and that it had failed to do so. The defendant applied under s 147 of the Criminal Procedure Act for the charge to be dismissed. The prosecutor argued that under the Act, the defendant had had a duty to the tour operators and visitors to the Island, because of the nature of the work that it carried out. Using principles of statutory interpretation, the Court determined that the Act imposed no such duty on the defendant. The charge was dismissed. Judgment Date: 4 May 2022.