Pike River call may beget backlash

Many books will be written about the Pike River mining disaster. Few of them are likely to be as poignant or as gripping as the royal commission of inquiry into the event.

From its opening headline, A Tragedy Unfolds, the commission chronicles in a matter-of-fact way how 29 men were let down, not just by the mine owners but by the government agencies charged with protecting them.

Culpability may lie squarely with Pike River Coal. But the fallout from the report - the resignation of the minister, Kate Wilkinson, and the overhaul of workplace safety laws - is an acknowledgement that the state also failed at its most basic level.

Maybe the report should have been required reading ahead of Cabinet's decision last week not to pay out compensation to the Pike River families. It may not have changed Cabinet's decision. But it might have caused ministers to spend at least as much time debating the Government's moral obligations as they did its legal obligations, which was apparently about as far as their cursory examination of the issue went.

The discussion around Attorney-General Chris Finlayson's report to Cabinet appears to have been brief. His report seems to have troubled itself largely with the dangers of setting a legal precedent should the Government step in to pick up the tab on behalf of the now defunct Pike River Coal for the $3.41 million in reparations ordered by the courts.

Presumably one consideration was the fact the families still have open the option of suing the Government for negligence and any payout now might be an admission of fault.

Parallels with the multiple failures surrounding the CTV building collapse in Christchurch may also have been a factor.

But Cabinet seems to have got so hung up on legal precedent it did not bother to consider the desirability of the Crown using its unlimited resources to force the Pike River families to drag their claim for compensation through the courts for years.

Of course governments make choices all the time and never trouble themselves with precedent when that is outweighed by the politics of an issue.

The most striking parallels are with the 1995 Cave Creek tragedy, where the families of the 14 victims were paid $2.6m in compensation. Of course in that case it was the Government, through the Department of Conservation, which was directly responsible for the deaths through negligence. But the compensation was paid despite there being no legal ruling forcing the Government to make good.

As public law specialist Mai Chen points out, the Government also paid out in the Susan Couch case, to settle her case for exemplary damages from the Crown.

Ms Couch, the sole survivor of the RSA killings 11 years ago, got $300,000, with no admission of wrongdoing by the Corrections Department after she accused it of negligence in its handling of killer William Bell, who was on probation at the time.

Ms Chen notes that there are other examples of the Crown making ex-gratia payments in cases where it accepts it has a moral responsibility - including payouts to Agent Orange veterans, who battled for years for compensation. Veterans who suffered certain medical conditions, which they blamed on their exposure to Agent Orange, got up to $40,000.

But for every case of compensation, there is one where the Government rejects the claim.

Ms Chen suggests there is no coherent policy or guiding principle - the question really is more political than legal. As in the case of the $5m found for the next America's Cup challenge, money is the one thing governments have plenty of when it comes to scratching political itches.

The Government can pick apart Labour Party leader David Cunliffe as an opportunist all it likes after he wrong-footed them this week by promising to pay out the Pike River families. But it takes one to know one.

In the case of Pike River, Cabinet may have been sufficiently blinded by its own prejudices that it failed to sense the potential backlash.

Acting Prime Minister Bill English let that slip when he remarked that other families touched by tragedy might have reason to feel aggrieved that the Government had been less generous with them because they were not so "high profile or politicised". He may as well have said that the families had received more than their fair share.

It may have been a reference to the $7m in public donations to the Pike River families, after an outpouring of public sympathy.

But it is hardly surprising the public dug deep after days of clinging to hope that the miners had survived. And it is an odd logic that thanks to public generosity, the state is absolved of any moral obligation to make good on its own failure.

Mr English was also at pains to point out the amount received in ACC payments by the families - $20m over time. But there is nothing extraordinary about the ACC payments received by the families - they are no more nor less than what would be paid in any other workplace tragedy.

It would be wrong to say the Government has ducked out on its moral obligations. It is spending millions to investigate whether the miners' bodies can be brought out. But it could hardly do otherwise after Prime Minister John Key promised when emotions were at their highest to do everything in his power to bring out the miners, whatever the cost.

Aside from the memorials and the anniversary speeches, however, the Government's response to the families seems to be "see you in court". But it may have already lost in the court of public opinion.

Fairfax Media