A law lecturer says the failure of one of the Whakaari White island tragedy prosecutions erodes another charge against a government agency.
Whakaari White Island like 'Chernobyl' - helicopter paramedic Photo: RNZ / YouTube
A judge last week dismissed a health and safety charge against the National Emergency Management Agency (NEMA).
The charge said NEMA should have coordinated with GNS Science about the implications of volcanic activity. GNS itself faces two charges, and one of those says GNS should have coordinated with NEMA.
The district court was told NEMA did not have a role at the coalface.
Otago University law professor Dr Simon Connell said the failed prosecution had not resolved the question of whether any agency dropped the ball.
"This case can only resolve the question of, 'was NEMA meeting their obligations under the Health and Safety at Work Act?' and now that had been answered, it did not necessarily mean 'that everything was being done properly'.
"There is an argument that NEMA wasn't doing enough. Is there somebody asking that question and giving us a satisfactory answer?"
The GNS charge was eroded by the dismissal of the charge, and might reflect that WorkSafe was "drawing a long bow" to go after NEMA in the first place, he said.
"The dismissal of the charges against NEMA certainly don't mean that it automatically follows that the charges against GNS Science will fail, although the dismissal of the charges ... are important for the charges against GNS Science," he said.
The prosecution of both agencies "raises the question of how far workplace health and safety obligations go, in terms of sort of remoteness from an organisation's work".
It was easier to make health and safety charges stick to a company directly engaged at the scene of an incident.
"It's important to note that GNS Science has a different role from NEMA, and they also have a relationship with providers of transport to and from the island," Connell said.
"So WorkSafe charges against GNS Science were partly based on their interaction with NEMA, but there was more to it than that."
It had been appropriate for WorkSafe to test how far the relatively new provisions in the HSWA 2015 laws might extend, but the NEMA prosecution had struck him as "ambitious", Connell said.
"WorkSafe had formed the view that GNS Science and NEMA ought to have been working together around providing alerts."
The judge disagreed.