Court orders Police Commissioner undertaking

NZILA President’s message – Kavita Deobhakta

For this issue, I’m sharing an excellent article by Fee Langstone Special Counsel Bradley Alcorn.

In 2017, Ron Salter, and his waste fuel collection business, Salters Cartage Ltd, were convicted for a series of breaches of the Health and Safety in Employment Act 1992 and the Hazardous Substances and New Organisms Act 1996.  

The convictions followed the death of a welding contractor who was killed while welding on a Salters’ waste fuel and oil storage tank. Salters conducted welding work on the site with no authorisation or safety oversight. Salters also failed to implement its health and safety management system.   

Salters was fined NZ$258,750 and ordered to pay reparation of NZ$128,074.21. Mr Salter was personally fined NZ$25,000 and sentenced to 4-1/2 months’ home detention.

Police launch action

In 2019, the NZ Police started proceedings against Mr Salter under the Criminal Proceeds (Recovery) Act 2009 – restraining property and business assets, which have been valued at about NZ$11 million. It was the first time proceedings had been brought under the Act for health and safety offences.

In 2021, the High Court ordered the Commissioner of Police to provide an undertaking they would comply with any order for damages and costs to compensate Salters for any losses sustained because of the restraining orders sought.

The commissioner appealed against that decision, arguing, among other things, that to give an undertaking might dissuade, or have a “chilling effect”, on the commissioner’s actions in pursuing and administering restraining orders under the Act.

The Court of Appeal dismissed the commissioner’s appeal. The court was not satisfied the commissioner had established there would be a chilling effect if an undertaking were imposed. It observed that the commissioner was confident of a successful outcome of the application for forfeiture orders in this case. 

Such an outcome would likely be more powerful than any chilling effect from having to provide an undertaking. Accordingly, the Court of Appeal refused to overturn the High Court’s order that the commissioner provide an undertaking about payment of damages and costs sustained as a consequence of the application for restraining orders.

Whether the commissioner will seek to appeal against this decision was unknown as Resolve was published. However, arguments over the undertaking are secondary to the key issue of whether the Act can be used in the context of health and safety breaches.

Bradley Alcorn comment

While technically falling within the ambit of the Act, convictions under the health and safety legislation are generally regarded as regulatory prosecutions, rather than criminal.

The process of establishing a link between a company’s assets and its health and safety offending is undoubtedly much more difficult than the usual process of tracking proceeds of crime.

It seems this is an exceptionally long bow for the commissioner to draw, and a step that, if successful, will have myriad unexpected consequences for those who fall foul of New Zealand’s health and safety legislation.

The full Court of Appeal decision is here.