Gordon Campbell on corporate manslaughter, French elections   4 Apr 2012

Gordon Campbell

Yesterday, the Pike River inquiry heard renewed calls for a criminal charge of corporate manslaughter to be put on the books in New Zealand. “Some of the issues canvassed in the evidence [about Pike River] once again raise feeling among the public,” Council of Trade Unions lawyer Rosas Wilson told the inquiry, “that the law should be able to fix criminal responsibility on the corporate person itself…” As Wilson indicated, the legislation that created a crime of corporate killing in the UK was passed by the British Parliament after a disaster that aroused similar levels of public outrage:

 

Wilson likened the charge to one introduced in the United Kingdom in 2006, after a car passenger ferry capsized near Belgium, killing nearly 200 people.

The inquiry following the incident showed disorder in the company, which fuelled moves to create the corporate manslaughter charge. Fines for the charge in the UK start at 5% of a company's turnover…

If monitoring and enforcement resources were now inadequate within the Department of Labour, Wilson also argued, the level of employer levies should be reviewed, given that the health and safety levy on employers had not increased since 1999.

 

The union also recommended a new Crown entity be established to cover health and safety for all high hazard industries. Commission chairman Justice Graham Panckhurst said evidence previously heard had highlighted it was 'the beginning of the end' of a specialist mines inspectorate when it merged into a government department in the 1990s. Wilson said the narrow scope of the Labour Department's high-hazards unit on mining and petroleum-geothermal industries should be broadened, to include 38 high-hazard industries.

The Crown Minerals Act required a fair financial return for the Crown for coal extraction, and the Resource Management Act required resource consents to protect the environment. It was bitterly ironic there was no similar process in the Health and Safety in Employment Act to protect workers' health and safety, he said. 'This is a bizarre order of priorities….'


The most comprehensive case for a charge of corporate manslaughter (along UK lines) being passed into law in New Zealand was made by Jonathan Wong in an article published in the Canterbury Law Review which is available here in full. Wong’s conclusion, written in 2006, makes chilling reading in the light of Pike River :

 

Public and workplace disasters 'graphically demonstrate the shattering impact of corporate misconduct upon human life.' However, the current law in New Zealand fails to hold accountable at-fault organisations in an effective way. It is obviously not ideal to await the occurrence of such disasters before pressing the case for law reform.

Wong’s article outlined the situation with respect to corporate killing in other jurisdictions, analysed the inadequacies of our own Health and Safety in Employment Act 1992, and noted the existence here of large, complex organizations where the chain of command has effectively obscured the lines of corporate responsibility and accountability:

 

The basis of liability for the proposed offence is a failure by senior management of a corporation to organise and develop its systems, arrangements and culture to avoid serious harm to others. The concept of management failure recognises the fact that death is rarely solely caused by individual operational negligence, and ideally reflects the complex decision making structures of organizations…. The proposed offence is designed to be a new and effective way to target the worst cases of management failure which cause death to workers, or members of the public.

Wong had hoped his article might stimulate discussion and place the issue of corporate killing on the legislative agenda in New Zealand. The arguments for that course of action, he wrote, reflect the view that the HSE Act fails to properly reflect the moral outrage that the community feels when a death occurs through the gross negligence of the employer – and the HSE Act also fails to adequately reinforce the notion that workplace fatalities are socially repugnant:

 

This is borne out by factors such as the offences not being indictable and, therefore, generally prosecuted in the lower courts; that prosecution is considered only a last resort; that the fines imposed by the courts are generally small; fines for large corporations are not sufficiently punitive and therefore lack the necessary deterrent and retributive effect; and the small number of proceedings against senior officers of corporations.

“The time has come,” Wong wrote six years ago, “for organisations that have paid little regard to the safety of their workers and members of the public to be held accountable in New Zealand in an effective and meaningful way.” In his view, an offence of corporate manslaughter would have this effect. Finally, some people may argue that the HSE Act 1992 already covers off the issue of corporate responsibility. See for instance the wording of section 56 of that Act available here:

However this section, as worded, presents major difficulties in mounting a successful prosecution. Thus, section 56 is a rarely-used platform for HSE prosecutions, as reflected in the small-to-non-existent number of proceedings taken against senior officers of negligent corporations. As things stand, it seems clear that fines alone have not provided a sufficient deterrent to lessen the rate of fatalities and serious injury that occur in New Zealand workplaces. (In some industries, the risk of such fines appear to be treated as an affordable cost of doing business.) Hopefully, the Royal Commission findings on the Pike River disaster will go some way to transforming the ‘unsafety culture’ that has taken root in New Zealand.

 

***

Midnight in Paris

With three weeks still to go until the first round of voting in the French presidential elections, it still seems a pretty good bet that the final run-off between the top two contenders on May 6th will bring down the curtain on Nicolas Sarkozy’s political career. Only a remarkably low turnout can save Sarkozy – that, or the unlikely prospect that the current surge of support for the hard left candidate Jean-Luc Melenchon will continue, and propel Melenchon into the second round. Currently, that seems to be the only situation likely to induce centrist voters to think again and flock to the incumbent.

Neither outcome is likely. Turnout looks like being low, but not low enough to save Sarkozy’s hide. And although Melenchon’s rise has been one of the few talking points of this lacklustre election campaign, it still seems far more likely that the run-off battle on May 6th will be between Sarkozy and Francois Hollande of the Socialist Party.

Obviously, not all of Melenchon’s ardent supporters would turn around on May 6th and vote for Hollande – mainly because on the stump, Melenchon has been devastating about the cozy arrangements that exist between the elites on both the right and the left. Yet at this point, the combined forces of the left still enjoy a comfortable six to ten point lead over Sarkozy and his allies on the centre right. Sarkozy will certainly get the support of Marine Le Pen’s ultra rightists, but most of the supporters of Francois Bayrou, the centrist candidate, will be voting for Hollande in the second round.

The bland M. Hollande has been given a few nervous moments in recent days though. Both major candidates have all but ignored the electorate’s major concerns about the state of the economy and unemployment, leaving that field almost entirely to Melenchon, who has been running very successfully on what the Independent has called “an anti-EU, anti-American, anti-big finance” platform:

 

Mr Mélenchon, an ex-Trotskyist and ex-Socialist, has swept up most of the support that normally scatters in the first round over candidates of the "further left". His call for a people's revolution, overturning existing financial and political institutions, has united – unexpectedly – some Greens, the remaining Communists, various Trotskyists, and the anti-globalist "alternative" left.

Mr Mélenchon has also started in recent weeks to take blue-collar votes away from the far right National Front and – significantly – from the Socialist candidate, Mr Hollande. Other polls in recent days have shown him neck and neck with the far-right candidate, Marine Le Pen, and the centrist François Bayrou. [One recent poll] showed Mr Mélenchon emerging clearly as the campaign's "third man" for the first time.

Instead, Sarkozy has been running a diversionary campaign on Islamic terrorism – presumably in the hope of shoring up his ultra right flank, provoking Hollande into a gaffe that will alienate his moderate support or at the very least – since Melenchon is sure to respond - dividing the left vote and making it less likely that Melenchon’s supporters will turn out for Hollande on May 6th. Meanwhile, the actual people in the impoverished poor suburbs (banlieues) on the outskirts of Paris that harbour the alleged Islamic threat will continue to be ignored, and will steadily be radicalized as a result.

While the clamour about Islamic terrorism is garnering headlines it won’t help Sarkozy enough. Even though he may still eke out a narrow victory in the first round, the numbers falling into place for the May 6th run-off still look terminal for him. With her days as France’s First Lady numbered, Carla Bruni may have been very wise to try and launch an acting career in that recent Woody Allen film about Paris.

 

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