High Court dismisses charge brought by WorkSafe against the NZ Defence Force
The High Court’s recent decision in New Zealand Defence Force v District Court of New Zealand & WorkSafe New Zealand  NZHC 3559 provides important guidance on the extent to which dangerous activities by New Zealand’s Armed Forces may be exempted from health and safety laws.
Lance Corporal Nicholas Kahotea, an experienced member of the New Zealand Special Air Service (NZSAS), died on 8 May 2019 during Counter Terrorism training at the Ardmore Military Training Area with US Armed Forces. Lance Corporal Kahotea fell to his death from a US Black Hawk helicopter while participating in a ‘bump landing’ exercise intended to insert Special Forces’ operators onto the roof of a second story building.
Following an investigation, WorkSafe laid a charge against the New Zealand Defence Force (NZDF) under s 48 of the Health and Safety at Work Act 2015 (HSWA). The charge alleged that NZDF had breached its primary duty of care under s 36 of HSWA by failing to ensure the health and safety of its workers so far as reasonably practicable.
The District Court’s decision
NZDF sought to have the charge dismissed under s 147 of the Criminal Procedure Act 2011 on the basis that HSWA did not apply to the training. This is because s 7 of HSWA provides the Chief of Defence Force (CDF) the ability to declare certain activities by the armed forces to be “operational activities”. NZDF operational activities are exempt from HSWA.
The declaration in question exempted “Counter Terrorism Response”, including “collective training to achieve operational level of capability for Counter Terrorism Response undertaken by members of the Armed Forces”.
The District Court declined NZDF’s application on the basis that the declaration did not apply to the training, because the training was not to achieve an “operational level of capability” and, in any event, the declaration only applied to Counter Terrorism Response within New Zealand, whereas the training concerned a potential overseas response.
The judicial review
In response, NZDF applied to the High Court for judicial review of the District Court’s decision, arguing it was afflicted by several errors of law relating to the interpretation and application of Armed Forces doctrine. This was an unorthodox step, as judicial review is not usually available in respect of pre-trial decisions in criminal matters except in rare cases involving jurisdictional errors.
In response, WorkSafe argued the Declaration itself was unlawful - not an argument advanced before the District Court. In consequence, the focus of the judicial review was strictly on the lawfulness of the declaration.
Assessing the lawfulness of secondary legislation - which the declaration is - involves a three-step test: analysing the provision under which the regulation is made to ascertain the scope of the regulation-making power, determining the meaning of the regulation, and deciding whether the regulation complies with the empowering provision.
While HSWA is a safety-focused statute, the High Court noted it cannot apply entirely to the Armed Forces as they exist to do “dangerous things in dangerous environments, in New Zealand and overseas", which requires training for those activities. This is reflected in s 7 of HSWA which automatically exempts certain operational activities, including certain training, from the Act.
Parliament intended HSWA to apply to members of the Armed Forces so far as it does not prejudice the defence of New Zealand and a declaration may be made under s 7 HSWA to exempt members who carry out operational activities to exempt activities not already listed in s 7 where doing so is consistent with that purpose.
WorkSafe’s argument that the declaration’s reference to “Counter Terrorism Response” was “hopelessly vague and inappropriately broad, disconnected to legitimate purpose” and could not sensibly be read down to mean “Counter Terrorism operations” was rejected by the High Court. The High Court considered that, while some background knowledge is needed to understand the terminology and the context in which those terms are used, the wording is not “unacceptably broad or vague” because the declaration must “after all… be understood, and applied, by members of the Armed Forces”.
In making a declaration, CDF is permitted to use terms that have a particular meaning for members of the Armed Forces, to be understood and applied by the Armed Forces. It follows that the Court determined that the Declaration was within the purpose of the delegated power and lawful. Accordingly, the District Court’s decision was quashed.
The charge was ultimately dismissed in open Court on 2 March 2023.
This decision demonstrates the high threshold WorkSafe must reach when satisfying the Court of a breach of duty under the HSWA when laying charges against the Armed Forces in respect of training for NZDF operational activities. While HSWA is intended to apply to members of the Armed Forces, this is only in so far that it “does not prejudice the defence of New Zealand”.
While serious health and safety-related accidents are deeply regrettable and members of the Armed Forces are required to minimise safety risks, NZDF operations are inherently dangerous and the Court has recognised that the NZSAS exists to do “dangerous things” and “to train effectively to do dangerous (sometimes, very dangerous) things, or to operate in dangerous (sometimes, very dangerous) environments, the training itself will have inherent dangers”.
As such, exempting counter terrorism response from HSWA fit “comfortably within the intention of Parliament that” health and safety legislation did not prejudice the defence of New Zealand.
Simpson Grierson Partner Sally McKechnie, along with Mike Mercer and Tim Bremner, acted for NZDF, advising on strategy for responding to the District Court’s decision. Sally and Tim appeared in the judicial review. Mike appeared in the successful application to dismiss in the High Court, along with instructing counsel Colonel James Kennedy-Good.
Special thanks to Tim Bremner for his assistance in writing this article.