The National Emergency Management Agency (NEMA) has won its appeal for a dismissal of charges in relation to the 2019 Whakaari/White Island volcanic eruption.

Judge Evangelos Thomas revealed his decision at Auckland District Court on Wednesday morning following a pre-trial hearing in Whakatāne last week.

During submissions, Crown agency NEMA, via defence lawyer Victoria Casey QC, successfully argued that the application of section 36(2) of the Health and Safety at Work Act 2015 would lead to “absurd” outcomes.

Announcing his decision, Judge Thomas said: “We have not yet reached the point where parliament or higher courts have extended the duty under section 36(2) beyond what parliament intended. That means I must grant NEMA’s application. The charge against it is dismissed.”

Its section 147 dismissal of charge claim was triggered after charges were laid by WorkSafe following the disaster which claimed 22 lives and left a further 25 injured.

“Many people would agree that if a person or organisation has failed in its job, and that has placed people seriously at risk, that there should be a way to investigate and if necessary hold that person or organisation accountable,” said Judge Thomas.

“There are different laws that allow you to do that, and one is section 36(2) of the Health and Safety at Work Act 2015.

“NEMA did not carry out any work physically on Whakaari, it did not send workers to Whakaari, it never placed any person on Whakaari.

“Today’s hearing is not about whether NEMA did its job properly – it may have, it may not have – it is only about whether WorkSafe can use this particular law to prosecute NEMA.”

The section in question reads: “A person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”

NEMA, who stood accused of failing to take measures to eliminate or reduce the likelihood of exposing individuals to a risk of death or serious injury from volcanic activity, was one of 13 organisations charged with failing in their duty to ensure the safety of tourists on Whakaari/White Island between April 4, 2016 and December 10, 2019 – the day after the eruption.

WorkSafe alleged that between these dates, NEMA had a duty under the act to ensure the health and safety of tourists and tour operators on Whakaari was not put at risk from work carried out, and its alleged “failings” included not communicating the risk posed by volcanic activity to the public.

“Do these allegations against NEMA engage section 36(2)?” asked Judge Thomas. “No,” he answered.

During the hearing Ms Casey argued that WorkSafe’s view was “dangerous”, and questioned why WorkSafe had “pegged” the allegation on the national body instead of the civil defence emergency management group, who she claimed had “operational function”.

Ms Casey said: “Justice is important to my client – a small agency of around 60 staff who between them have responded to dozens of emergencies over this charge period, including earthquakes, cyclones, floods, fires, infrastructure failings and the appalling shootings in March 2019.

“The accusation that these staff are responsible for the death and serious injury of 47 people (on Whakaari/White Island) weighs very heavily.

“NEMA are arguing that this charge is so wholly misconceived, that it is simply not feasible that a conviction could be achieved at trial. It is not right for NEMA and its staff to be put through that trial process.”

Of the 13 defendants originally charged, the remaining 12 individuals and organisations have all lodged pleas of not guilty ahead of a lengthy trial which is set to begin in July 2023.

Whakaari owners Andrew, James and Peter Buttle and Whakaari Management Ltd, the Institute of Geological and Nuclear Sciences, the National Emergency Management Agency, White Island Tours, Volcanic Air Safaris, Aerius Ltd, Kahu NZ, Inflite Charters, ID Tours New Zealand and Tauranga Tourism Services were all charged after WorkSafe filed a total of 20 charges.

GNS Science is alleged to have failed to ensure the safety of pilots travelling to and remaining on the island.

Prior to announcing his decision, Judge Thomas acknowledged all the victims of the disaster, as well as their families, their whānau, their communities here and around the world, and many others he said were likely to have been “profoundly affected” by the eruption.

Credit: Stuff.co.nz