Whakaari-White Island: the bureaucrats are untouchable

WorkSafe NZ hasn’t exactly emerged covered in glory after its four-month court action over the Whakaari-White Island disaster of 2019. In fact quite the reverse.

In the District Court at Auckland yesterday, Judge Evangelos Thomas found Whakaari Management Ltd (WML) guilty on one health and safety charge.

This was after Worksafe’s case against six other defendants had collapsed, leaving its big prosecution push “hanging by a thread”, in the words of 1News.

Six defendants had earlier pleaded guilty to the charges against them, leaving WML – the holding company of the Buttle brothers, who own the island – the sole remaining defendant.

GNS Science, the Inflite tourism group, White Island Tours and three helicopter tour operators pleaded guilty. Judge Thomas dismissed charges against Tauranga Tourism Services, ID Tours and the three Buttle brothers as individuals.

The dismissal of those charges indicates WorkSafe’s case was not well-founded and raises the possibility that some of the other parties might have got off too had they put up a fight. But infinitely more damning than that was the judge’s scathing criticism – largely ignored by the media, other than by Newshub – of the government agency itself.

In what veteran Newshub reporter Adam Hollingworth described as a “huge serve” to WorkSafe, Thomas noted that the agency had given WML a tick of approval in an adventure activity audit.

That audit, the judge said, did not cover White Island Tours’ processes for assessing the risk of an eruption while tourists were on the island. He described this as “an astonishing failure”.

Not surprisingly, WorkSafe didn’t want to be interviewed. Quelle surprise.

The judge’s comment followed an independent review in 2021 which found that WorkSafe “fell short of good practice in its regulation of activities on Whakaari White Island over the 2014-19 period” and called for improvements in WorkSafe's management of adventure activities. It was the gentlest of raps across the knuckles.

All this serves to reinforce the view that WorkSafe should itself have been in the dock for its abject failure to foresee the potentially catastrophic consequences of an eruption on New Zealand’s most active volcano, which tourist parties visited as if it were some sort of theme park. The eruption on December 9 2019 killed 22 people and injured 25 others.

High-profile Christchurch lawyer Nigel Hampton KC said in a 2020 interview that it could be argued WorkSafe bore some responsibility for what happened on Whakaari. He drew a comparison with the former Department of Labour, which brought charges at Pike River despite having failed in its own duty as the regulator responsible for mining safety.

Plus ça change, plus c’est la même chose, as the French would say.

WorkSafe surely has an obligation to explain why it left itself off the hook. At the very least it should apologise to the victims and their families for its dereliction in failing to act on a very obvious risk to public safety. But no one’s holding their breath. The bureaucrats are untouchable.

Why no royal commission on the Whakaari disaster?

It’s three years today since Whakaari/White Island erupted, killing 22 people. Netflix has made a documentary on the disaster that will screen next week.

In the meantime, a former IT manager with the New Zealand Fire Service has posed an important question: why no public inquiry?

In a column published in the New Zealand Herald, Alan Thompson pointed out that similar catastrophes in the past (Mt Erebus, Pike River, the Ballantyne’s fire and the Christchurch mosque atrocities are obvious examples) were the subject of royal commissions that examined their causes, established fault where appropriate and came up with recommendations on how similar events might be avoided in future.

The official explanation for the government’s inaction over the Whakaari disaster was that Worksafe and the Chief Coroner were both conducting inquiries, the latter of which apparently won’t proceed until the former has been completed.

But as Thompson points out, both inquiries are limited in their scope. The big questions – what went wrong, why it went wrong and how a recurrence might be avoided – won’t necessarily be answered.

Thompson doesn’t attempt to explain the government’s reluctance to lift the lid on Whakaari, but we can form our own conclusions. The obvious one is that the tragedy was a major international embarrassment and the government doesn’t want to risk making things worse by drawing attention to whatever factors caused it.

On the basis of what we know already, complacency – the “she’ll be right” mentality – would be one of those factors.

What distinguishes Whakaari from the other disasters mentioned above is the potential harm to the image of the New Zealand tourist industry. Of the 47 people caught in the eruption, 41 were from overseas. Many of the survivors were left with appalling injuries that left them permanently scarred. That means there would be international interest in the findings of a royal commission.

Pre-Covid, international tourism vied with dairying as our biggest income earner. Adventure tourism is a big part of the country’s appeal and the last thing the industry needs, just when it’s starting to recover from the pandemic, is an official report that presents the country as an unsafe destination.

Unfortunately, it’s hard to see how a commission could reach any conclusion other than that the risk to tourists visiting Whakaari was gravely understated by everyone involved and that emergency planning - assuming an eruption could be planned for at all - was hopelessly inadequate.

To make matters worse, the official response to the eruption was hesitant and indecisive. It was only due to the prompt action and extraordinary heroism of volunteer rescuers, including helicopter pilots, that more lives weren’t lost.

We are now left with the unedifying spectacle of Worksafe, the government agency charged with ensuring health and safety in the workplace, appearing to absolve itself of any blame for the deaths and injuries and making itself unpopular by prosecuting some of the people who put their lives on the line to save others. A royal commission might not let Worksafe off the hook so easily.

 

 

 

WorkSafe lets itself off the hook

 It intrigues me that WorkSafe has apparently let itself off the hook with its decision to prosecute those it holds responsible for the Whakaari-White Island tragedy.

Surely WorkSafe, as the government’s workplace safety regulator, must bear some responsibility for the accident? It must have known tourists were visiting an active volcano. I mean, it was hardly a secret. So why is it prosecuting GNS Science and Civil Defence, among others, while ignoring its own apparent culpability?

According to its website, WorkSafe’s roles include “targeting critical risks at all levels (sector and system-wide) using intelligence” (whatever that might mean) and “delivering targeted interventions to address harm drivers”.

Notwithstanding the predictably flatulent bureaucrat-speak, I would have thought that broad brief included scanning the landscape for possible risks – such as a smouldering volcanic island where boat-loads of unprotected tourists wander among sulphurous steam vents – and taking action to mitigate them.

As WorkSafe CEO Phil Parkes said yesterday, “This deeply tragic event was unexpected, but that does not mean it was unforeseeable”. Exactly. So should we assume WorkSafe regards its function as to be wise after the event rather than pro-active in promoting safety and managing risk?

Admittedly there’s a much bigger issue here. New Zealand is full of potentially hazardous tourist experiences, and there would rightly be an outcry if the government tried to shut them down or even limit access. The Tongariro Crossing (through a volcanic landscape subject to extreme weather) and the trip to Cape Kidnappers (beneath unstable cliffs) are two where the risks seem to be understated. Those just happen to be ones I’m particularly aware of because I’ve done both of them relatively recently, but of course New Zealand is full of tourist attractions where the risk is part of the appeal.

Perhaps the answer is for adventure tourism operators to be much more up-front about potential hazards so that their customers can make a properly informed decision on whether they want to take the risk. If they give fully informed consent, that must surely remove some of the onus from the operators (while obviously not removing their obligation to take sensible precautions). But I suspect that familiarity breeds contempt. If an operator has been running incident-free tours for years, as at Whakaari, you can understand them growing blasé.

Perhaps that should be part of WorkSafe’s role: monitoring risky tourism ventures to ensure that they tell their customers exactly what risks they’re taking. At that point individual choice and responsibility should kick in. But for the government agency to conveniently absolve itself of any responsibility for what happened at Whakaari seems fundamentally unfair, and a bit gutless.

Footnote: Immediately after posting this blog, I played a Morning Report interview with Nigel Hampton QC in which he seemed to express much the same view. To paraphrase my late former colleague Frank Haden, he agrees with me so we must both be right.