Police announced late last year they would not be bringing charges in the death of the 115 people killed in the collapse of the CTV Building during the February 2011 Christchurch earthquake.
Key to that decision was that, under section 162 of the Crimes Act, no one can be held criminally responsible for the killing of another more than a year and a day after its cause. Owing to the fact the building was designed and constructed in the mid-1980s and collapsed around 25 years later, the law, in the words of the Deputy Solicitor-General, was likely to be a “complete bar” to prosecuting the two engineers who designed the building.
Justice Minister Andrew Little has now committed to repeal the “year-and-a-day” law as part of the Crimes Amendment Bill, which is currently in select committee, having had its first reading earlier this year.
Despite this law change, it will still be the case that only individuals can be charged with manslaughter. While repeal of section 162 of the Crimes Act is a necessary step in the right direction, it does not in itself open the door to extending criminal liability to corporations in cases of negligence leading to a death.
That will take further legislation along the lines of the UK’s Corporate Manslaughter and Corporate Homicide Act 2007, which sets out that an organisation is guilty of manslaughter “if the way in which its activities are managed or organised causes a person’s death”.
Conviction carries an unlimited fine, and courts can order companies to take out adverts publicising the fact they have been convicted.
Introducing an offence of ‘corporate manslaughter’ in New Zealand would, as it has in the UK, enable a prosecutor to charge a company or other ‘legal person’ with manslaughter. It allows a company or group of people acting as a single entity to be punished for conduct resulting in at least one fatality.
It took a series of workplace tragedies and various government inquiries, both similar to what has taken place here over the past decade, before the British Parliament felt compelled to act.
Prior to enactment of the UK law, although companies could be prosecuted for a range of health and safety offences, it was nigh impossible for an organisation‘s executives to be held responsible for any death caused by a gross breach of their duty of care toward employees and others.
Organisations could in principle face the same manslaughter charges as individuals, but the prosecution would have to demonstrate that a senior individual within it was personally guilty of gross negligence manslaughter. This, in fact, is the status quo here.
Following the police’s announcement that they would not be seeking to prosecute anyone over the collapse of the CTV Building, Little proclaimed that the Government was looking at introducing a corporate manslaughter law. Eight months into the current legislative session, however, parliament has yet to act.
The Health and Safety at Work Act 2015 did, in fact, substantially increase the penalties organisations face for failing to maintain appropriate standards. The law imposes a maximum fine of $3 million and a term of up to five years’ imprisonment if they fail to comply with their individual obligations.
But a workplace death will only be sufficiently serious to result in a manslaughter conviction, with notably much higher maximum penalties, when an identifiable individual is found to have caused the death by way of an unlawful act or omission that amounted to a major departure from the standard of care expected.
When the select committee reported back to parliament on the Health and Safety Reform Bill in 2015, it identified the increased penalties available under the new law as sufficient to ensure employers would meet their duty of care and that a corporate manslaughter offence was, therefore, unnecessary.
Hence, there is still no serious criminal sanction for work-related death at the hands of corporations.
A charge of corporate manslaughter, though, could recognise and punish serious organisational failings without necessarily having to identify an individual who was largely to blame for the death.
Creation of the offence would hold organisations and executives at the highest level accountable for deaths resulting from management failings. It would bridge the culpability gap between manslaughter and breaches of health and safety legislation.
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