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Back to the Future Past with Paul Goldsmith

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On 25 June, Amy Adams (the National MP, not the actor portraying Lois Lane, Superman’s on-again/off-again love interest in the movies) announced she would be retiring from politics next year, not contesting the 2020 General Election.

National appears to have been short on experienced talent when they quickly announced her replacement as Opposition Finance spokesperson as Epsom’s Not-MP, Paul Goldsmith. Mr Goldsmith’s two stand-out political achievements thus far have been;

1. Standing for the Epsom electorate in 2011 as a “Clayton’s” Candidate in a wink-wink-nudge-nudge deal between National and ACT. The cuppa-tea-deal for (first) John Banks (and subsequently David Seymour) allowed him to secure the Epsom Electorate in an effort to bring in additional MPs on the ACT Party List. (Winning only 1.7% of the Party Vote, the cunning plan failed.)

2. Being the only known political candidate in recorded human history to deliberately remove election signs so voters would not vote for him.

National appointed Mr Goldsmith’s as their latest Finance spokesperson barely three hours and three minutes after Ms Adams’ announcement was made public.

Whatever experience Mr Goldsmith has to propel him into the Opposition Finance spokesperson position is unclear. His experience in the private sector is questionable, as his own National Party bio reveals:

Before entering Parliament, Paul created his own business as a historian and biographer focusing on New Zealand’s history and economic development. He has published 10 books, his last were biographies of Alan Gibbs (Serious Fun) and Sir William Gallagher (Legend). Between 2007 and 2010 he served as an Auckland City Councillor.

According to the same bio we are informed that  “he is an enthusiastic pianist”. (Good to know. As the fate of the Titanic showed, musicians are always handy to have around when a doomed ship goes down.)

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Despite lacking any personal experience in the commercial sector, it has not prevented Mr Goldsmith expressing firm neo-liberal beliefs. In 2015, as  National’s Minister of Commerce and Consumer Affairs, he stated his categorical opposition to regulating corporate activities such as incentivising insurance brokers from selling products to clients who may or may not need them.

Instead, he opted for the usual “light handed” approach;

“I can’t rule it out, but I think it’s highly unlikely. I don’t personally like the idea of Government directly regulating such things.

The preference would be devising a disclosure regime, which is clear and simple and effective. There are countries around the world that ban commissions, full stop, and I think that’s probably carrying it too far.”

As Jenée Tibshraeny explained for Interest.co.nz;

“The main argument against commission is that it risks distorting the advice clients are given, as they’re often unaware of the perks their broker or adviser may receive for recommending different products.”

It appears obvious that Mr Goldsmith’s sympathies align more with corporate interests and defending the laissez-faire status quo rather than protecting consumers. (Only National could so blatantly subvert the role of “Minister of Commerce and Consumer Affairs” until the “Consumer Affairs” part of the ministerial title became meaningless.)

As if to underscore his disdain for safety in pursuit of unfettered de-regulation, in July last year, Mr Goldsmith drafted a Private Member’s Bill that would remove the 10pm “curfew” for new drivers on Restricted-class car licences. His rationale was that Restricted Licences potentially interfered with late-night work shifts;

“A lot of people at that age – in their last year of school or at university – have jobs in the hospitality sector. Very often, those shifts don’t finish until 10.30pm or somewhere around there, and it’s just a pain in the neck [to get home].”

However, Mr Goldsmith seemed oblivious (or simply did not care) to existing provisions where the New Zealand Transport Agency regulations permitted flexibility to Restricted licence requirements. As Fairfax journalist Damian George pointed out;

New Zealand Transport Agency regulations allowed for exemptions in special circumstances. The agency said 750 of 1585 exemption applications, primarily for driving hours, were approved for restricted drivers last year.

Automobile Association road safety spokesperson, Dylan Thomsen, was clearly not impressed.  He also pointed out that young  (under 25) drivers were predominantly involved in crashes and fatalities on New Zealand roads, especially at nights.

In early June this year, Mr Goldsmith slammed proposals from Associate Transport Minister, Julie Anne Genter, to reduce the speed limit on some open roads in this country. The NZTA revealed that “87 percent of speed limits on New Zealand roads are higher than is safe. An agency risk assessment tool, Mega Maps, suggests only 5 percent of the open road should have the current 100km/h speed limit. In most cases a speed of 60-80 km/h should apply, and in most urban areas 30-40 km/h would be appropriate“.

Mr Goldsmith’s extreme knee-jerk reaction on the same day bordered on “shower head-style” mischief-making;

“The reality is, New Zealanders lead busy lives and don’t want the Government telling them they need to operate at a slower pace. They would rather see their tax dollars spent on new, high-quality roads that are safe for them drive on at 100kmh, but this Government hasn’t built a single new road.

Drastically cutting speed limits to improve road safety is too simplistic. It would further isolate people living in regional New Zealand and pull the handbrake on our economy by hindering the movement of freight.”

Mr Goldsmith’s comments run counter to National’s previous Associate Transport Minister, Craig Foss, who recognised that some speed limits were inappropriate for certain stretches of roads. In November 2016, Mr Foss announced;

“New Zealand roads are unique and conditions vary from towns to cities, north to south. The Guide strongly encourages community involvement as local knowledge and perspectives, backed by the information and data provided in the Guide, will help ensure the best possible safety results.

Changes made under the Guide may include altering road design, lowering speed limits, or in certain circumstances, raising them.”

It is no secret that many of New Zealand’s roads are utterly unsuitable for high speeds. For Mr Goldsmith to “play politics” on this issue sadly demonstrates his willingness to exploit people’s lives when it suits his personal political agenda.

On 3 July, Mr Goldsmith told quasi-National Party chat-show host, Duncan Garner, on TV3’s ‘The AM Show;

Goldsmith also wants to look at dialing back excessive regulations, such as by reforming the Resource Management Act and reviewing health and safety laws.

“The health and safety laws were ones that we brought in and I think we need to just make sure we haven’t gone too far.”

Health and safety… “gone too far“?

Mr Goldsmith’s memory and grasp of recent historical events must be very poor indeed. He has apparently overlooked (or is ignorant of) instances of de-regulation in the early 1990s – the height of Small Government mania where common sense gave way to free market ideological purity – which has  cost us dearly. And not just in monetary terms.

The de-regulation of the New Zealand building industry can be pin-pointed with the “reforms” of the Building Act 1991. In essence, the Act “changed building controls from a prescriptive system to a more self-regulated regime“.

The resulting self-policing resulted in a free-for-all where caveat emptor  became the new standard for buying a home in New Zealand. Minimal regulation; self-policing; hands-off government… what could possibly go wrong?

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In 2009, Price Waterhouse Coopers stated in a report on leaky homes that there were up to 89,000 homes affected throughout New Zealand. Remedial cost: $11.3 billion dollars.

Another leaky homes consultant put the true cost of remedial work at a staggering $23 billion.

“Legal Vision” – a firm of barristers and solicitors wrote a lengthy, detailed analysis of the failures of our building industry in the 1990s. With regards to de-regulation and the Building Act 1991, they concluded;

There was a lack of accountability for those responsible for construction mishaps/defects. The market forces in themselves were not sufficient to protect the key stakeholder being the home owner. The power imbalance as between home owner and the supplier was significant, such that you cannot rely upon market forces alone to protect the home owner. There was little to protect them within the 1991 Act and other legislation.

The financial and legal consequences from rotting homes would make send many in the industry – from builders to private certifiers (outsourced from local bodies) bankrupt – often to escape their liabilities.

The financial, political, and social fall-out would last for decades. As then-North Shore Mayor Andrew Williams said nine years ago;

“The Government must accept its own liability for the deregulation experiment inflicted on the building industry and local government and take responsibility for the liability accumulated by the private sector builders, designers, architects and certifiers who are now insolvent and unable to meet their responsibilities to leaky-home owners.

Unless these wider issues are dealt with, and dealt with soon, the ratepayers of the new Super City will be burdened for years, and the Government’s brave new world for Auckland governance will never be fully realised.”

As economist, Brian Easton, assessing the failures of the “reformed” Building Act, said in 2010;

The early 1990s was a period when the market extremists were still triumphant, and there was frequent reference to ‘light-handed regulation’, referring to a regulatory system in which the government is not very active but the regulation is based upon normal market practices, including litigation for breach of contract (perhaps under the Consumer Guarantees Act in cases where the contract was not very elaborate). Ideally, the threat of litigation is sufficient to ensure that the contractor maintains the agreed standards.

It appears that little thought was put into considering the issue of what redress the house owner would have if the performance standards were not attained. Suppose the cladding fell off after 14 years? Under light-handed regulation the aggrieved party can take the matter to litigation, but who exactly is to be sued? The above account suggests that there are many involved, and all, to some extent, may be at fault: the local authority, its building inspector, the builder, the architect, the buildings material supplier, the developer, the home owner who onsold, and even the legislators and their advisers who passed the relevant legislation. In such situations fault can be very difficult to establish in law.

Or perhaps Mr Goldsmith is thinking of the de-regulation of the Labour Dept, Mining Inspectorate, and safety legislation – also in the early 1990s.

The Health and Safety in Employment Act 1992 (HSE Act) now “impose[d] the obligation on employers to take all practicable steps to ensure safety at work“.

Then, Pike River happened.

An independent review commissioned by the then-Chief Executive of the Department of Labour revealed the nature of the new, de-regulated environment which dangerous workplaces such as mines, now operated.

The report optimistically set out expectations of of the HSE Act;

11. The nature of the Department’s regulatory role is set out in the Health and Safety in Employment Act 1992 (HSE Act). The principal plank of the legislation imposes the obligation on employers to take all practicable steps to ensure safety at work. The Department sees its role under the Act as being to ensure that employers are aware of their obligations, to support and assist them to understand and give effect to these obligations and to enforce as appropriate.

And then revealed a staggering flaw in the Act;

15. There was one gap in this picture. The inspectors did not conduct general safety systems audits. They were not required to do so by their work plans. The approach the mine inspectors took in scrutinising specific complex and technical mine safety issues confronting the mine, is an appropriate one for a technical and specialist area involving high hazards. However, this approach should be complemented by also paying attention to general systems. In high hazard industries, inspectors should engage in an integrated approach that involves systems audits and in-depth scrutiny of specific, often technically complex safety issues. We note that in future the Department plans to complement its regulatory approach with a greater level of emphasis on safety system audits. When it does so, it will need to equip its inspectors with the training and support tools to successfully perform this role.

The report was damning in pointing out the utter failure of the so-called Health and Safety in Employment Act to actually do what it’s label demanded of it: to provide health and safety in employment;

45. In broad terms, the HSE Act replaced heavily prescriptive standards (telling duty holders precisely what measures to take in a particular situation) with a performance-based approach, primarily by imposing general duties (sometimes referred to as goal setting regulation) such as to take ‘all practicable steps’ to ensure health and safety, leaving it to the discretion of the duty holder how they achieve that standard. This approach was coupled with greater use of performance standards that specify the outcome of the health and safety improvement or the desired level of performance but leave the concrete measures to achieve this end open for the duty holder to adapt to varying local circumstances. There was also a focus on systemsbased standards. These identify a particular process, or series of steps, to be followed in the pursuit of safety, and may include the use of formal health and safety management systems.

46. New Zealand embraced the Robens philosophy of self-regulation somewhat belatedly, but with particular enthusiasm and in the context of a political environment that was strongly supportive of deregulation. Indeed, in various forms, deregulation (and reducing the regulatory burden on industry more broadly) was strongly endorsed by the Labour Government that came into power in 1984 and by the National Government that succeeded it in 1990. The HSE Act was a product of this deregulatory environment and in its initial version was stripped of some of the key measures recommended by Robens, not least tripartism, worker participation and an independent executive. It was regarded, so we were told, as a ‘necessary evil’ at a time when the predominant public policy goal was to enhance business competitiveness…

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50. Put differently, whereas under the previous legislation, inspectors had been expected to go into workplaces and direct duty holders as to what safety measures they should introduce (the expectation being that the inspector rather than the employer would take the initiative) under the HSE Act employers bear primary responsibility for health and safety while providing information and support, particularly when it comes to establishing and developing health and safety systems and processes and takes enforcement action where the employer fails to meet the practicability standard.”

Again, “reforms” replaced set prescriptive standards of safety with individual self-policing and self-regulation.

As well as deferring health and safety to individual companies, the government mines inspectorate was reduced to a shadow of it’s former self.

Amongst other things the Coal Mines Act 1979 took a strong, proactive approach to safeguarding health and safety in the country’s mines. The Royal Commission on the Pike River Coal Mine Tragedy described the role of the mines inspectors;

“…provided for a chief inspector, district, electrical and mechanical inspectors of coal mines. Chief inspectors could support and review the actions of the inspectors. They held first class coal mine manager’s certificates and had significant coal mining expertise, usually as manager of a large and challenging New Zealand mine such as Strongman, which had problems with gas and spontaneous combustion.

…District inspectors had coal mining expertise and inspected mines within a particular geographical area. Inspections occurred with and without notice and following notification of incidents and accidents. Small mines were inspected monthly and large mines inspected weekly“.

The coal mines inspectorate was a unit with the then Ministry of Energy.

From 1993 to 1998 the MIG consisted of about 20 to 25 people. In 1995, for example, there were three coal inspectors, three mining engineers, five quarry inspectors, one electrical/mechanical engineer, two petroleum/ geothermal inspectors, two regional managers, one group manager and eight support staff.

In 1989, the Mines Inspectorate Group (MIG) was transferred to the Minister of Commerce. After considerable opposition from the MIG, the group was transfered to the then Department of Labour.

Staff rationalisation then proceeded with a vengeance.

Mines inspections were reduced from once every two months  in 1993/94 to every three months by 1995. By the time the Mines Inspectorate Group was incorporated into the DoL, it ceased being a separate entity and became part of general workplace safety inspectors.

Most mines inspectors resigned.

Only three dedicated mines inspectors remained by 2001.

From 2001 to 2011 the number of mines inspectors fluctuated between one and two – for the entire country. When one of those inspectors resigned in 2011,  one  was left by himself, for several months, to monitor every mine in New Zealand.

The gutting of the Mines Inspectorate over several governments and decades was a breathtaking act of stupidity for what was undoubtedly one of the most dangerous industries in the world.

The consequence was inevitable. On 19 November 2010,the ticking time bomb detonated:  a series of methane explosions at Pike River Mine killed twentynine miners.

In an almost perverse understatement, The Royal Commission on the Pike River Coal Mine Tragedy reported,

DOL now appreciates the importance of, and deficiencies in, its leadership of health and safety. As the minister’s proposal noted, ‘the Pike River tragedy and Royal Commission hearings indicate areas of weakness in the effectiveness and credibility of the regulator, and the ability to support industry-led activity and effective employee participation’.

As if to underscore the findings of the Royal Commission, another government enquiry, the  Independent Taskforce on Workplace Health and Safety in 2013 wrote scathingly of our current mania for de-regulation;

Ultimately, New Zealand implemented a much lighter version of the Robens [workplace health and safety self-regulated by employers] model, and much later, than other countries. This light implementation reflected a range of New Zealand-specific factors during the late 1980s and 1990s, notably resource constraints (including public sector staff cuts), changing attitudes towards the roles of government and business (including an ethos of business self-regulation), and liberalisation of the labour market with weakened union representation.

As if to drive home the point, the Taskforce spelled it out for us:

Our national culture includes a high level of tolerance for risk, and negative perceptions of health and safety. Kiwi stoicism, deference to authority, laid-back complacency and suspicion of red tape all affect behaviour from the boardroom to the shop floor.

For those who see human life in purely monetary terms, the Taskforce estimated that the cost of workplace injuries was approximately $3.5 billion a year – nearly 2% of GDP.

Then-Labour Minister – and currently holding the position of Leader of the National Party – Simon Bridges, accepted the Taskforce’s report;

“The Working Safer package represents a major step change in New Zealand’s approach to meet our target of reducing the workplace injury and death toll by 25 percent by 2020,” says Mr Bridges.

The reforms recalibrate our approach so we are working smarter, targeting risk and working together to improve performance in workplace health and safety.

Working Safer addresses the recommendations of the Independent Taskforce on Workplace Health and Safety which provided Government with a solid foundation to work from.

We will improve the legislation and back it up with clear guidelines and enforcement, and investment in a strong new regulator WorkSafe New Zealand.”

So when Paul Goldsmith recently said to Duncan Garner;

“The health and safety laws were ones that we brought in and I think we need to just make sure we haven’t gone too far.”

– he had obviously missed the memo from his current Leader.

The cost of de-regulation in our building industry is estimated in excess of $23 billion.

The cost of de-regulation and watering-down of safety practices in our work places: injuries; permanent disabilities; and lives lost. In other words: incalculable.

If the definition of lunacy is to repeat the same thing over and over again, expecting differing results, then the National Party has been wildly successful: it is a party of lunatic ideologues.

It has not learned a single thing from our recent, well-publicised, recent history.

Who else will be injured, maimed, or killed, in the name of de-regulation if Paul Goldsmith gets his way?

Mr Goldsmith should not be allowed anywhere near a ministerial position. He is not fit for any role of responsibility.

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Postscript

Since December 2010 – one month after the Pike River Mine disaster – 422 people have been killed in workplace accidents:

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References

Parliament: Hon Amy Adams

Youtube:  Lois & Clark | In My Veins ( Batman vs Superman Drawn of Justice)

Radio NZ: Senior National MP Amy Adams to retire from politics

NZ Herald: Leaky homes a disaster and a $2b tax windfall

MoBIE: Dept of Labour – Pike River Mine Review

Parliament: Paul Goldsmith

Wikipedia: 2011 New Zealand general election – Epsom and the Tea Tape scandal

The Standard: Goldsmith removing Goldsmith signs

Scoop media: National Party Caucus reshuffle announced

Scoop media: Amy Adams to retire from politics at election

National Party: About Paul

Interest.co.nz: Minister Paul Goldsmith admits he doesn’t like the idea of the Govt directly regulating how insurers incentivise advisers to sell their products

Fairfax/Stuff media: Member’s bill to scrap curfew for restricted licence holders so they can get to work

Scoop media: Minister shows how misguided she is on speed limits

Radio NZ: ‘Huge majority’ of NZers would prefer lower speeds on some roads – Genter

Scoop media: Showers latest target of Labour’s nanny state

Scoop media: A new approach to safer speeds

Mediaworks/Newshub: National Party Finance spokesperson Paul Goldsmith outlines plan for cutting regulation, taxes

Wikipedia: Leaky homes crisis

Merriam Webster: caveat emptor

MoBIE: Building Performance – Signs of a leaky home

Leaky Homes: A New Zealand Crisis

NZ Herald: Leaky homeowners on suicide watch

NZ Herald: Leaky-home bill estimated at $6.3b

NZ Herald: Repaired leaky homes worth 1/4 less

Fairfax/Stuff: 15 years of leaky homes and the brutal economics of owning one

Homes to Love: 10 tell-tale signs you have a leaky home

NZ Herald: It’s not if – it’s when for our dripping time bombs

Interest.co.nz: Price Waterhouse Coopers – Weathertightness – Estimating the Cost

Legal Vision:  Failings of the Building Act 1991 – Were these a cause of the leaky building crisis?

Brian Easton: Regulatory Lessons from the Leaky Home Experience

MoBIE/Dept of Labour: Review of the Department of Labour’s interactions with Pike River Coal Limited

Royal Commission on the Pike River Coal Mine Tragedy: The decline of the mining inspectorate

Royal Commission on the Pike River Coal Mine Tragedy: Chapter 24 -Effectiveness of the health and safety regulator
– Leadership of health and safety

Independent Taskforce on Workplace Health and Safety: Key Findings

Scoop media: Major reform of workplace health and safety (alt.link)

Worksafe: Workplace fatalities for all industries, all regions, all ages, from Dec 2010 to Jul 2019

Additional

Ministry of Labour: A Guide to the Health and Safety in Employment Act 1992

Other Blogs

Tumeke: The myth of over-regulation and the delusion of self-regulation

The Standard: Two faced John Key on Pike River

Previous related blogposts

This will end in tears

A hole they all dug?

A lethal lesson in de-regulation

Heather Roy – head down the mine shaft?

Health and safety jobcuts? Haven’t we been down this road before?!

W.o.F “reforms” – coming to a crash in your suburb

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This blogpost was first published on The Daily Blog on 30 July 2019.

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Purchasing “justice” on the New Zealand open market…

8 March 2014 3 comments

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ladyjustice

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Timeline

19 November 2010: An explosion at Pike River Mine, on the West Coast, kills 29 miners.

10 November 2011:  The Department of Labour  lays 25 charges against Pike River Coal Limited (in receivership);VLI Drilling Pty Limited (Valley Longwall),  and Peter William Whittall.

31 July 2012: Valley Longwall International (VLI) pleads guilty in the Greymouth District Court to three health and safety charges and on 26 October is fined $46,800. Pike River Coal’s  receivers enter no plea and a year later are fined and order to make payments to the families. PRC did not pay the fine and made only a minimal payment to the victim’s families.

25 October 2012: Peter Whittall enters not guilty pleas.

30 October 2012:  A  Royal Commission of Inquiry concludes and presents a report to the Attorney-General, Chris Finlayson.

5 November 2012: Royal Commission’s report made public and   Kate Wilkinson resigns as Minister of Labour.

10 December 2012: “Prime Minister John Key will personally apologise to the families of the Pike River 29 after a Royal Commission report blamed the Government for lax oversight of the mine.” (Source)

16 October 2013: Peter Whittall’s lawyer, Stuart Grieve QC,writes secretly to the Ministry of Business, Innovation and Employment (MBIE) suggesting that  in ‘‘advance of the $3.41 million being made available, it is proposed [with precise terms to be agreed] that  …  the Ministry will not proceed with the charges laid against Mr Whittall by advising the Court that no evidence will be offered in support of any of the charges.’’

12 December 2013: Judge Jane Farish drops all charges against Peter Whittall saying, ‘‘Some people may believe this is Mr Whittall buying his way out of a prosecution, but I can tell you it’s not.’’ Peter Whittall agrees to pay compensation of $3.41 million to the families of the dead Pike River miners.

27 February 2014: Stuart Grieve’s secret letter to the Ministry of Business, Innovation and Employment (MBIE) is made public under an OIA request.

Denials

 ‘‘Some people may believe this is Mr Whittall buying his way out of a prosecution, but I can tell you it’s not.’’ –  Judge Jane Farish

‘‘It arrived by Stuart Grieve, nobody asked if they were prepared to offer money – they offered money. Very careful legal advice was taken as to whether it was proper to take this into account at all. We got clear legal advice that we should take it into account, and it was one, but only one, of that factors, and not the predominant factor in the decision that was taken.’’- Geoffrey Podger, CEO, WorkSafe NZ

‘‘I wish to make it very clear, again, that there was no such arrangement between the defence and prosecution.’’ – Brett Murray, General Manager, Worksafe high hazards

Stuart Grieve: “This letter didn’t just come out of the blue. That’s not how it happened. Although that is perhaps the impression that seems to have been given by what I’ve read read, that Worksafe chief executive said that the letter just arrived, and we offered money. That’s not how it happened at all. The [letter] needs to be looked at in context. Over a period starting from about, quite early last year, the solicitors for the defendent, Mr Whittle, and I, were getting disclosure from  MBIE that very quickly revealed that they had, there were  significant problems with the electronic disclosure and then that in turn revealed that there were significant problems with the way  the investigation had been  carried out because a lot of relevant materials stored on computers operated by all sorts  of employees of Pike [River Mine] had not been recovered or retained and a lot of that would well have, could well have been relevent to the defence. There were also significant problems with the evidential aspects of the case.”

Mary Wilson then asked, if the case was looking so bad, if the evidence was looking so poor, what was the advantage in paying $3.41 million to get the charges dropped?

“As a result of all these difficulties, I mean the trial was going to be a long one anyway, but these difficulties which would have had to be contested in court would have made the, on our assessment, the trial would’ve, could have lasted anything between  four to six months. And it was going to be horrendously expensive. If this trial had proceeded and the ministry had failed, the families would’ve got nothing. As it stands now, the families ended up getting the reparation that had been ordered by the judge against the company, which was of course in receivership.”

Mary Wilson pointed out to Grieve that the directors hadn’t been prepared to pay compensation, unless Mr Whittle wasn’t charged.

“Well, look,  all I can say to you is that the money was offered , the charges were dismissed, but the suggestion that it was a backroom deal, is just quite wrong. This was not something that was just agreed by the prosecution. It was at the Court hearing when the charges were dismissed. The Prosecution said that it was considered on principle and conventional basis in accordance with the prosecution guidelines. It had gone, as we understand it, we were told it  was going to be considered by the solicitor-general, so that it went to, you know, significantly high up, in [the] Crown Law office. You know, to say that it was just a back room deal, sort of, is a criticism that’s easily made, but we were told from  the outset that it was going to be considered by the Crown on a principled basis and as I understand it and the submissions to the Court confirm it, that’s how it was done.” – Stuart Grieve QC, interviewed by Mary Wilson, on Radio NZ’s Checkpoint

Conclusions

  1. A secret deal was offered by  solicitor, Stuart Grieve, on 16 October 2013, that in return for payment of $3.41 million dollars by Peter Whittle, that the Crown would drop all charges against Whittle.
  2. On 12 December 2013, Judge Jane Farish dropped all charges against Peter Whittall, and an agreed sum of $3.41 million was offered by Peter Whittle as “compensation”.
  3. The secret deal was finally made public on 27 February.
  4. According to Grieve, the Solicitor General was aware of the deal; “It had gone, as we understand it, we were told it  was going to be considered by the solicitor-general, so that it went to, you know, significantly high up…”
  5. Denials that this was not a “secret back room deal” fly in the face of what looks very obviously a secret back-room deal.

Questions

  1. Is this going to be the new ‘norm’ for the justice system in this country – that a person can buy their way out of a conviction?
  2. Will the government be publishing a tariff for what “compensation” is demanded in payment, according to  severity of charges?
  3. If not, will the Solicitor General, Stuart Grieve, Judge Farish, and anyone else associated with this affair, be resigning their position?

Because, really, this isn’t just a case of something rotten in the state of Denmark…

… this is a case of advanced decomposition.

Heads must roll.

This blogpost was first published on The Daily Blog on 28 February 2014.

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References

Wikipedia:  Pike River Mine disaster

Ministry of Business, Employment, and Innovation: Pike River Charges Laid

Fairfax media: Whittall ‘part of Pike deal’

TV3: Key to apologise to Pike families in person

ABC News: Prosecutors drop charges against former Pike River Coal chief executive Peter Whittall

NZ Herald: Pike River: Labour accuse Govt of dodgy deal

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National’s disdain for taking responsibility

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Continued from: National’s disdain for our credulity

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Groucho Marx  politicics

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When things go horribly wrong – whether by accident or negligence – we expect mishaps to be investigated. If a mishap is due to the latter – someone stuffed up –  we demand that those responsible be held to account.

This is what it looks like when people are held to account for their actions,

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Pacific Blue pilot fined, ordered to retrain

Acknowledgement: NZ Herald – Pacific Blue pilot fined, ordered to retrain

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Rena captain and officer jailed for 7 months

Acknowledgement: Waikato Times – Rena captain and officer jailed for 7 months

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Capital + Merchant's directors face judge

Acknowledgement: Fairfax Media – Capital + Merchant’s directors face judge

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This is what it looks like when no one – especially when in a position of authority – is held to account,

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No blame for Pike River tragedy

Acknowledgement: Dominion Post – No blame for Pike River tragedy

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Calls mount for Pike River prosecutions

Acknowledgement: Radio NZ – Calls mount for Pike River prosecutions

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It simply beggers belief and defies understanding that a Minister of the Crown – Simon Bridges, to be specific – could utter words like this,

At the time of Pike River there’s been serous systemic failures in the old Department of Labour, and as a health and safety regulator they were clearly dysfunctional and ineffectual.

But the problems were truly systematic and no one person was to blame.

Acknowledgement:  Fairfax Media – Pike River report: Learn from tragedy – Minister

So  how on Earth has Bill Birch –  when he was Minister for Labour in the 1990s and was  the architect of de-regulation of the mining sector – gotten off so lightly in the media?

For Birch to say,

It raises the question of why weren’t they addressed if they were obvious deficiencies in the legislation – I don’t believe they were. I think systemic failure is more about people not putting the systems in place.

– is a travesty of everything that decent New Zealanders believe in.

Basically, what this “gentlemen” is saying is that because we, as a country, were lucky enough to get away with no disaster in our mines up until the day that Pike River Mine exploded in a flash of explosive methane – that his “reforms” cannot in any way be blamed?!?!

How in gods’ name does that make any sense whatsoever?!

Why on Earth has the media  not jumped all over this?!

The record of Birch’s “reforms” is readily available for those with the eyes to see, and the inclination to use those eyes.

As I wrote in an earlier blogpost on 29 October last year,

The gutting of the mines inspectorate and permitting self-regulation by mining companies,  had it’s genesis in the early 1990s – again the Bolger-led National government –  where Bill Birch introduced the so-called “Health and Safety in Employment Act”, in 1992.

Under the guise of  “eliminating red tape”, this dangerous piece of legislation allowed mining companies to self-monitor their own activities,

“39. Prior to the enactment of the HSE Act, New Zealand had a ‘mishmash of legislation’[5], in which the duties of employers and others tended to be set out prescriptively and in considerable detail. Under this regime, specification standards directed duty holders as to precisely what preventive measures they must take in particular circumstances. Such standards identified inputs, telling duty holders how to meet a goal, rather than health and safety outcomes to be achieved

42. In undertaking reform, New Zealand, like the UK and Australia before it, was strongly influenced by the British Robens Report of 1972. This report resulted in widespread legislative change, from the traditional, ‘command and control’ model, imposing detailed obligations on firms enforced by a state inspectorate, to a more ‘self-regulatory’ regime, using less direct means to achieve broad social goals

46. New Zealand embraced the Robens philosophy of self-regulation somewhat belatedly, but with particular enthusiasm and in the context of a political environment that was strongly supportive of deregulation. Indeed, in various forms, deregulation (and reducing the regulatory burden on industry more broadly) was strongly endorsed by the Labour Government that came into power in 1984 and by the National Government that succeeded it in 1990. The HSE Act was a product of this deregulatory environment and in its initial version was stripped of some of the key measures recommended by Robens, not least tripartism, worker participation and an independent executive. It was regarded, so we were told, as a ‘necessary evil’ at a time when the predominant public policy goal was to enhance business competitiveness…”

See: Review of the Department of Labour’s interactions with Pike River Coal Limited

The conclusion of this experiment in free market de-regulation lies deep within the Pike River Mine, with the entombed bodies of 29 dead miners.

Unfortunately, the architects of this de-regulation, Bill Birch Birch, Ruth Richardson, and Jim Bolger were never prosecuted for their part in this tragedy.

They should have been.

Of all the political Parties in Parliament, National holds itself up as the torch-bearer for “personal  responsibility”. Their website is littered with references to being the Party of  “personal responsibility (see: National’s Vision For New Zealand).

Where is the responsibility being shown here?

How can 29 people have been killed in a disaster that should never have been allowed to occur – and no one is responsible?

When ordinary people commit acts that endanger the lives of others, or even lead to death(s), the State is quick to hold the (alleged) perpetrators to account.

When acts of endangerments  are committed, leading to death(s), and the State is involved – it appears that  no one person was to blame”.

It’s a “systemic” thing.

Well, to hell with that.

I hold the following to account for the deaths of 29 men at Pike River Mine,

  • Bill Birch
  • Jim Bolger
  • the management of Pike River Mine
  • and the CEOs of the Labour Department from 1992 to 19 November 2010

Every one of these people should be prosecuted for varying degrees of malfeasance leading to manslaughter.

Or else, maybe, we should all just break the law whenever we feel like it,  and not be prosecuted?

We can say it’s  a “systemic” thing.

This blogpost was first published on The Daily Blog on 18 April 2013.

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Previous related blogposts

Dear Leader Key blames everyone else for Solid Energy’s financial crisis

W.o.F “reforms” – coming to a crash in your suburb

References

Dominion Post: No blame for Pike River tragedy (11 April 2013)

Fairfax Media: Pike River report: Learn from tragedy – Minister (11 April 2013)

Radio NZ:  Calls mount for Pike River prosecutions (11 April 2013)

Radio NZ:  Lack of consquences over Pike disaster ‘unsatisfactory’ (13 April 2013)

 

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Taking responsibility, National-style

5 February 2013 29 comments

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"The National Party is built on age-tested principles that reflect what is best about New Zealand. We are a party of enterprise; a party of personal freedom and individual responsibility; a party of family; an inclusive party; a party of ambition." -John Key, 27 May 2007

“The National Party is built on age-tested principles that reflect what is best about New Zealand. We are a party of enterprise; a party of personal freedom and individual responsibility; a party of family; an inclusive party; a party of ambition.” – John Key, 27 May 2007

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"We also need to remember the enduring principles on which the National Party is based – individual responsibility, support for families and communities, and a belief that the State can't and shouldn't do everything." - John Key, 30 January 2007

“We also need to remember the enduring principles on which the National Party is based – individual responsibility, support for families and communities, and a belief that the State can’t and shouldn’t
do everything.” – John Key, 30 January 2007

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So let’s see how well Dear Leader and National  Does Responsibility…

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John Key blames burglary on drug addicts

Source

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Blame: drug addicts

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Key blames production firm for DVD music woes

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Blame: music production company.

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Worth blames media for Key 'ticking off'

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Blame: the media (always a good flogging-post for polis in trouble)

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Key blames Labour for his Govt's wage gap failings

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Blame: previous Labour government, Recession

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Key blames Hubbard for SCF collapse

Source

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Blame: Allan Hubbard. (Hubbard had not been convicted of any offense.)

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Bill English blames Labour for bad economic management

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Blame: previous Labour government (again).

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Govt refuses responsibility for credit downgrades

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Blame: previous Labour Government (yes, again),  Europe, and the United States.

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Key blames Wall St, Minto blames Key

Source

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Blame: Wall Street (an industry sector in which Key used to work)

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Key blames popularity dip on election campaign

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Blame: election campaign (damned inconvenient, these “election” things)

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Key blames edgy policy for poll drop

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Blame: Polls, “edgy” things, state asset sales, and “lots of challenges out there”.

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Key blames messenger in Beckham comments

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Blame: “Somebody” (or anybody, whatever)

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Pike River - Key blames company for disaster

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Blame: Pike Rive mining company (which was following de-regulated safety laws enacted by National in 1991.)

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Govt blames global economy for jobless woes

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Blame: “global economic headwinds” (but not an excuse beneficiaries may use).

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Govt blames election, rugby on DPS blowout

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Blame: Rugby World Cup, the general election, and Diplomatic Protection Squad.

And when National has run out of people, institutions, countries, and things to blame – they can always refer to  the mystical realm,

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Parata blames 'karma' after Ministry of Education staff miss pay day

Source

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Blame: Karma.

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And of course, there are the none-too-subtle attempts to blame welfare beneficiaries for not having the jobs that existed prior to 2007/08,

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Free birth control for beneficiaries

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Beneficiary drug testing plans unveiled

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Cost of beneficiaries $78b - report

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Taking responsibility, National-style – means someone else copping the blame. Or sunspots.

Are we all clear on this?

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Addendum

Clayton’s Responsibility – The Responsibility You’re Taking, when You’re Not Really Taking Responsibility,

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Kate Wilkinson resigns as Labour Minister

Full story

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Wilkinson’s resignation was almost on top of the public release of the Pike River Royal Commission of Inquiry report. She was the “sacrificial lamb”, with the deliberate  objective to short-circuit media and public debate over National’s culpability in the de-regulation of the Mining Inspectorate in 1992.

Wilkinson’s “resignation” wasn’t taking responsibility – it was a carefully-crafted exercise in damage-control.

Note that Wilkinson retained her other portfolios (at the time), along with her $250,000-plus salary plus Ministerial perks and allowances  (see:  ‘What have I done wrong?‘).

Indeed, any attempt by National to  take responsibility was watered down when Key said,

Under successive governments, since 1992, the influence and reach of the mining inspectorate was eroded.”

[…]

Mr Key says the Government accepts there were systemic failures in the regulatory regime across successive governments.” – John Key, Govt responds to Pike River Royal Commission, 5 November 2012

So there you have it. Key’s comments attempts to spread responsibility as far as possible across twenty years of successive governments. Because, as we all know, if you spread responsibility – like margerine – as wide as possible, it becomes thinner and thinner until there’s bugger-all of it left.

The Nat’s spin doctors earned their tax-payer funded salaries that day.

Taking responsibility National style reminds me of that famous phrase from the 1970  movie, “Love Story“,

Love Means Never Having to Say Youre Sorry

For Dear Leader and his cronies, the sentiment is the same,

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John Key Power Means Never Having to Say I'm Responsible

“Power Means Never Having to Say I’m Responsible.”

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Previous related blogpost

It’s official: Key’s mind is someone elses’ responsibilty

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Citizen A – 10 November 2012 – Online now!

12 November 2012 1 comment

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Citizen A

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– 10 November 2012 –

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– Selwyn Manning & Phoebe Fletcher –

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– 7.3% unemployment – Pike River Mine – US Elections –

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Issue 1: Does the Pike River Mine report herald a change in the culture of self regulation and deregulation?

Issue 2: Big gay red shirts and David Beckham’s intelligence rated by the thickness of bat feces – is it Prime Ministerial?

and Issue 3: What can the world expect from an Obama win?

Citizen A broadcasts 7pm Thursday Triangle TV

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Acknowledgement (republished with kind permission)

Tumeke

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Heather Roy – head down the mine shaft?

5 November 2012 15 comments

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Both TVNZ’s “Q+A” and TV3’s “The Nation” today (4 November) carried interviews with Bernie Monk, regarding  the upcoming royal commission of inquiry report, due for release at 3.45pm this coming  Monday (5 November).

See: Pike River families to get first look at report

The Q+A interview was especially interesting, as the programme followed up with  panellists from the Left, Right, and a Political Scientist. In this case, the panellists were ex-ACT MP, Heather Roy; political pundit, Jon Johansson;  and ex-Labour Party President, Mike Williams.

The issue quickly shifted to the de-regulation of the mining industry, and the gutting of the Mines Inspectorate. All of which happened under the neo-liberal “reforms” of the Bolger-led government in the early 1990s.

As the Dept of Labour website stated (in a belated attempt to justify de-regulation, but which actually turned into a damning indictment of National in the early 1990s) regarding the backdrop to de-regulation,

The HSE Act 1992 and the Department’s role.

45. In broad terms, the HSE Act replaced heavily prescriptive standards (telling duty holders precisely what measures to take in a particular situation) with a performance-based approach, primarily by imposing general duties (sometimes referred to as goal setting regulation) such as to take ‘all practicable steps’ to ensure health and safety, leaving it to the discretion of the duty holder how they achieve that standard. This approach was coupled with greater use of performance standards that specify the outcome of the health and safety improvement or the desired level of performance but leave the concrete measures to achieve this end open for the duty holder to adapt to varying local circumstances. There was also a focus on systemsbased standards. These identify a particular process, or series of steps, to be followed in the pursuit of safety, and may include the use of formal health and safety management systems.

46. New Zealand embraced the Robens philosophy of self-regulation somewhat belatedly, but with particular enthusiasm and in the context of a political environment that was strongly supportive of deregulation. Indeed, in various forms, deregulation (and reducing the regulatory burden on industry more broadly) was strongly endorsed by the Labour Government that came into power in 1984 and by the National Government that succeeded it in 1990. The HSE Act was a product of this deregulatory environment and in its initial version was stripped of some of the key measures recommended by Robens, not least tripartism, worker participation and an independent executive. It was regarded, so we were told, as a ‘necessary evil’ at a time when the predominant public policy goal was to enhance business competitiveness…

[…]

50. Put differently, whereas under the previous legislation, inspectors had been expected to go into workplaces and direct duty holders as to what safety measures they should introduce (the expectation being that the inspector rather than the employer would take the initiative) under the HSE Act employers bear primary responsibility for health and safety while providing information and support, particularly when it comes to establishing and developing health and safety systems and processes and takes enforcement action where the employer fails to meet the practicability standard.”

See: Review of the Department of Labour’s interactions with Pike River Coal Limited

Alt. link: https://web.archive.org/web/20111122210429/http://www.dol.govt.nz/news/media/pikeriver/Pike-River-Mine-review/regulatory-role.asp

The up-shot of  the above report is that instead of actively policing mines and their safety standards, it was all left to individual companies to address. Instead of being “prescriptive” as the DoL laments, individual companies were to adopt a “a performance-based approach” and to “to take ‘all practicable steps’ to ensure health and safety, leaving it to the discretion of the duty holder how they achieve that standard“.

Well, we know how that turned out.

29 men paid dearly for the liberalisation of safety regulations, in one of the most dangerous fields of  work on this planet.

The current state of our mines inspectorate is now so bad that even state-owned coal-mining company, Solid Energy publicly expressed it’s dis-satisfaction and called for the process to be handed over to Queensland for safety oversight,

Solid Energy has called for New Zealand’s mines’ inspectorate to be run out of Queensland, saying the lack of resource at the Department of Labour was partly to blame for the Pike River tragedy.

The state-owned power company is hoping to be the new owner of Pike River Coal, and said the best option to ensure the mine’s safety is to align New Zealand’s framework with that of Queensland.

“We are suggesting Queensland because we believe it is at the forefront of safety in Australia,” said chief executive Dr Don Elder.

“The industry needs research capability to look at the best advances overseas and evaluate how those might be applied locally.”

[…]

However, Elder said because New Zealand mining is a small industry, it would be too expensive to provide all of those services, so the most sustainable option is to contract inspectorate and support services to Australia.”

See: Solid Energy wants Australia to run mines inspectorate

So what was ex-ACT MP, Heather Roy’s, response in the discussion, that followed the interview with Bernie Monk, who lost in son in the Pike River Mine disaster?

Her response, to put it mildly, was eye-opening and jaw-dropping. In what should have been a crystal-clear message to worshippers of  Neo Liberalism, that de-regulation does not always work as intended, she managed to totally ignore the lessons of the Pike River tragedy and deflected the conversation elsewhere,

HEATHER ROY:  Well, in part, but I think Bernie was right when he said the New Zealand public haven’t forgotten about Pike River mine. Things like the Royal Commission are gonna highlight that. The real thing, the tragedy for the families is always going to be ongoing for them. The thing is what lessons can we learn from this, and Mike was outlining some of the things that he thinks should be done. This might be a bit of a watershed for OSH, and that would probably be a good thing in the mining sector. Another thing that needs to be examined is New Zealand’s environmental policies. Should this have been an open cast mine? Should it have been closed? All of those things need to be discussed, not just for Pike River mine, but across the board.

[…]

HEATHER ROY:  I think it’s a red hearing to blame deregulation for everything, though. What is actually important is the accountability that follows on from that. Deregulation in itself is not a bad thing. It’s what checks and balances are put in place so that accountability exists beyond that point– “

Source: TVNZ Q+A The panel

I’ve usually found Heather Roy to be the most rational of the right-wing nutjobs that pass for ACT MPs and supporters. She voices views – even if one disagreed with them – with a measure of coherency and logic that elicited a thoughtful response, rather than a gritting of teeth.

On this occassion, I gritted my teeth.

Right wingers make a fetish of demanding a high degree of personal responsibility from us, the Great Unwashed Masses.

See: ACT – Principles

But right wing political parties rarely (actually, never) take responsibility for their own actions.

It is fairly clear to everyone by now that the de-regulation of the mines inspectorates in the early ’90s was a grave mistake. 29 graves, to be precise.

So for Heather Roy to try to shift the blame onto OSH, when legislative “reforms” specifically stated that mines safety had devolved to individual companies, and was no longer the “prescriptive”  responsibility of the State is more than a little disingenous – it’s downright dishonest and insulting to all New Zealanders.

How can Roy say with a straight face, “I think it’s a red hearing to blame deregulation for everything, though. What is actually important is the accountability that follows on from that. Deregulation in itself is not a bad thing. It’s what checks and balances are put in place so that accountability exists beyond that point” – is beyond comprehension.

One can only assume she is relying on collective brainfade as to what National did in the early 1990s, and public lack of knowledge on this issue,  to try to get away with such bullshit.

How else does one explain her incredible statements,

I think it’s a red hearing to blame deregulation for everything, though.” – What else would one blame, when we went from seven mines inspectors in 1992 to 1, currently? When prescriptive safety regulations were replaced with companies taking voluntary “‘all practicable steps’ to ensure health and safety“?

What is actually important is the accountability that follows on from that. ” – It’s a bit too late for accountability after people have been killed in a disaster that need never have happened had stringent safety regulations not been removed.

Deregulation in itself is not a bad thing. ” – It is a bad thing when de-regulation results in injury or death, that was wholly preventable.

Perhaps Ms Roy would approve of de-regulating road safety rules? Would she endorse removing the speed limit, for example?

It’s what checks and balances are put in place so that accountability exists beyond that point” – At this point I had ground my teeth to nothing.  This comment contradicted her previous statement, “Deregulation in itself is not a bad thing“.

How can we ensure that “checks and balances are put in place so that accountability exists ” – when no regulation exists requiring “checks and balances“?!?!

Nothing Roy has said made any sense, and her assertions defy common sense understanding.

For an educated, articulate woman, she has allowed her natural intelligence to be clouded by the braindead dogma of neo-liberalism, which demands de-regulation and “small government” at any cost.

But there is always a cost.

Just ask 29 families on the West Coast.

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Other blogs

Tumeke: The myth of over-regulation and the delusion of self-regulation

The Standard: Two faced John Key on Pike River

Additional

Q+A: Transcript of Bernie Monk interview

Ministry of Labour: A Guide to the Health and Safety in Employment Act 1992

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3 things we will never see in our lifetime…

18 August 2011 3 comments

There are some things that are simply impossible, according to the laws of physics…

(Oh, ok, I was wrong about #1. It is possible for aliens to travel to Earth and land in front of the White House… )