The Easy Rider sank in the Foveaux Strait in 2012 after being hit by a rogue wave. One child and seven men, including the skipper, Rewai Karetai, drowned.
Faced with this tragedy, the government decided it needed to prosecute the partner of the skipper, Gloria Davis, in order to send a message to fishing vessel operators of the risks of ignoring government regulations.
Whether or not the message has been heard by the intended audience, it is not the only message to come out of the tragedy, especially when the event is considered in conjunction with the Pike River disaster.
The classic and immediate message to be read from the Easy Rider tragedy is one of human vulnerability to the power and fickleness of natural forces. As one of the bereaved relatives noted the ‘sinking had a natural cause. It was one of those things that happen. Foveaux Strait is an iffy strait.’ The tragedy was therefore one more story of the great dangers of the seas around the coast of New Zealand, the frailty of human life, the coldness of the southern waters, even the determination but always the risks of keeping up old ways, the accepted risks of continuing to exercise Treaty rights.
Nevertheless, the government in the form of Maritime New Zealand charged Rewai Karetai’s partner, Gloria Davis, the sole director of the company that owned the vessel, under the Maritime Transport Act and the Health and Safety in Employment Act. A nominal director of a small business, and of modest means, she defended herself. She was found guilty but is yet to be sentenced. The maximum penalties include 12 months in prison and fines of up to $250,000.
The local view was that Rewai Karetai ‘was his own person’’ and ‘no-one could have told him what to do if he did not want to do it’. The judge recognised this and accepted Rewai Karetai skippered the boat and made the relevant decisions in regard to the operation of the boat. But he still found that Gloria Davis should have prevented Rewai Karetai from taking the actions he did.
The message the government conveyed, regardless of the realities of the power relationship within the family and the suffering of the bereaved partner, was that its regulations, passed to ensure the safety of all, must always be obeyed. If not, it would punish without fear or favour.
The story was different for Pike River.
The Pike River disaster needs no introduction at all. Nor do the main characters, including the corporate Department of Labour, and Peter Whittall, the initial white knight who eventually fell from grace once the facts started to emerge.
To compare, the Department of Labour laid 12 charges against Peter Whittall in November 2011 under Health and Safety in Employment Act, each charge carrying a maximum fine of $250,000.
The number who died at Pike River was of course significantly greater and the event significantly more notorious. The government ascribed a commercial aspect to the sinking of the Easy Rider but certainly acquisitive corporate action to obtain massive monetary gain was at the heart of the Pike River operation.
No issue has ever been raised that Maritime New Zealand’s administration of maritime regulations were lax in the case of the Easy Rider. But this was a central issue in relation to the Department of Labour’s administration of health and safety regulations in relation to Pike River. After the Pike River disaster, the shattered Department of Labour was incorporated into the Ministry of Business Innovation and Enterprise (MBIE).
Given the facts of Pike River, the public were of course shocked when the charges against Whittall were dropped by MBIE and Whittall’s lawyer’s proposed payment of $3.41 million to the families of the 29 victims of the disaster was announced.
Despite all appearances to the contrary, the parties to the announcements and the judge denied this was a ‘back room deal’ to end the prosecution. MBIE insisted that its case against Whittall was dropped only because it was unlikely to result in a conviction.
But a letter from Whittall’s lawyer, later released, revealed a proposal to MBIE relating the dropping of charges and the payment, before the charges were dropped. The letter included the claim that the Department of Labour’s investigation of the disaster had been defective.
With this information in the public domain, MBIE issued a strong denial about the quality of its investigation saying ‘that a very good legal investigation was done by one of our most experienced officers’. MBIE also noted that respondents to such legal action would of course always claim that the case against them was inadequate and flawed.
The mess of the Pike River legal action conveyed several messages. It spoke of a government unwilling to bring perpetrators to account or to allow the public to see justice done. The public was left wondering if the prospect of further scrutiny of the Department of Labour’s regulation of safety and health up to the disaster had influenced the decision to drop the case. Most profoundly, it conveyed the message that money could bully and buy its escape from prosecution and that our system of justice was tainted.
Together the two actions revealed a government eager to prosecute the weak and vulnerable, reluctant to deal with the wrongs of the wealthy and powerful; the existence of one law for the rich and one for poor; and a glimpse of the reality of a corporate government working for the corporate interest. They also provide further evidence of the structural racism of the justice system in New Zealand in which Maori are not only more likely to be prosecuted, but also convicted.