Saturday, November 27

Explanation: Why a judge rejected the NZDF’s claims about exemptions from health and safety laws


A judge has rejected the New Zealand Defense Force’s claim that a training exercise in which a decorated soldier was killed was exempt from health and safety laws.

New Zealand Army soldiers inside an Australian Army vehicle during mission rehearsal exercise for Task Group Taji 3 at the Edinburgh RAAF, with some 300 Australian Soldiers, Sailors and Airmen prepared for deployment to Iraq in exercise at the Edinburgh RAAF in Adelaide, South Australia.

Archive image.
Photo: NZDF / Supplied

This is in part because the training cannot be considered “operational” because it used US Black Hawk helicopters, to which the New Zealand military normally does not have access. Therefore, Black Hawk helicopters would not be available for use by the New Zealand Defense Force in response to a domestic incident.

Corporal Nicholas Kahotea, a member of the SAS, was killed in May 2019 when he attempted to lower one of these helicopters onto a roof as part of a training exercise with the US Armed Forces. Instead of climbing onto the roof, Kahotea fell. eight meters from the helicopter on concrete and died in hospital shortly after.

Following an investigation, WorkSafe prosecuted the Defense Force (NZDF) under the Occupational Safety and Health Act of 2015.

At the Papakura District Court in June this year, the NZDF tried to have the charge dismissed. Much of the hearing was held behind closed doors without the presence of the media because it involved restricted information that could harm national defense and security.

On Tuesday, Judge Richard McIlraith ordered that a redacted version of Judge Jane Lovell-Smith’s decision be released.

He rejected the NZDF’s request to dismiss the charge, in part because the training exercise was not deemed high enough to be exempt from the health and safety law, and because he used helicopters that are not normally available to the NZDF for a response. national.

‘The Defense Force is sometimes exempt from health and safety laws’

The Occupational Health and Safety Act (HWSA) does not apply to members of the defense force while the worker is performing “operational activities.” The law applies to the daily activities of the NZDF.

While operational activities are often real life scenarios, the defense chief may declare a training to be an “operational activity” and therefore be exempt from the HWSA. They must do so in writing to the Minister of Defense. Usually this is high-level or dangerous training intended to reflect realistic scenarios, and such statements are very rare.

One of these statements was made by the defense chief 11 months before the incident. He said that the NZDF’s “counterterrorism response” was an operational activity and therefore any counterterrorism response and training to enable such a response were exempt from the law, Judge Lovell-Smith’s ruling showed.

This statement was in effect at the time of the incident in which Kahotea died.

However, the statement only covered specific training, technically referred to as “an operational level of capability” or OLOC.

NZDF claimed that the training was to achieve OLOC; WorkSafe questioned it. This was the critical decision for the judge: if this specific training exercise was to achieve OLOC.

Lower levels of capacity, including a basic level of capacity (BLOC) or a directed level of capacity (DLOC), are not covered by the declaration and therefore are not exempted from the HSWA. An activity is only exempt from HSWA if it is determined to achieve OLOC.

WorkSafe: ‘The exercise was not to achieve OLOC’

In the WorkSafe submission, which was ultimately accepted by the judge, the documents prepared prior to the exercise (the “Exercise Instructions”) do not specifically mention the “Operational Level of Capability” (OLOC).

In fact, WorkSafe said, the documents specifically mention the lower-level DLOC, or the targeted capacity level.

“DLOC stands for ‘Directed Level of Capability’ and is a lower standard of readiness than OLOC, demonstrating that the training exercise was not intended to achieve OLOC.”

Another NZDF document prepared prior to the exercise, the Operational Order, states: “The purpose of the exercise was” to prepare and deliver immediate readiness forces to carry out special operations in support of national objectives. “

“WorkSafe acknowledges that the Operational Order refers to” immediate preparation. “NZDF contends that it is a reference to OLOC. There is no specific reference to OLOC in the preparatory materials, but there is a specific reference to DLOC that confirms what was intended.” , it states. of WorkSafe on the ruling, he said.

NZDF said that this specific SAS drive needed to be constantly at OLOC, so much of its training, if not all, needed to be at that level.

“NZDF argues that it is not necessary to specify that the expected preparedness level was OLOC, because the relevant unit was always required to be in OLOC to respond to a terrorism incident.

“The exercise that night was training to respond to threats against terrorism and ensure OLOC is achieved. According to the NZDF presentation, there has been no evidence to refute that.”

Training of used helicopters to which NZDF does not have immediate access

The training used US Armed Forces Black Hawk helicopters, for what is called an emergency landing. The helicopter hovers over the edge of a building while those on board take to the roof of the building. During this exercise, Kahotea fell eight meters from the helicopter and died from his injuries.

WorkSafe said “emergency landing” skills have never been a requirement to meet OLOC (operational level of capability) because it is not possible to do so with the type of helicopters the NZDF uses.

“If the NZDF were required to respond urgently to a domestic terrorism incident, it would not do so using Black Hawk helicopters. Learning how to do or practice a crash drill is not something that NZDF operators would have to do to achieve or maintain OLOC. to respond in a situation of national terrorism, “said WorkSafe.

Judge Jane Lovell-Smith agreed with WorkSafe and denied NZDF’s request that the charges be dismissed.

“The NZDF stated that this training was intended to achieve an operational level of capability. However, I accept WorkSafe’s submission that … the exercise was intended to achieve a targeted level of capability,” its ruling stated.

The initial version of the statement referred to an “anti-terrorist response within New Zealand” rather than a foreign mission.

“This supports the view that the Declaration issue in this case was specifically intended to refer to national counter-terrorism response activities,” Justice Lovell-Smith wrote, rather than offshore mission training, as with the US Armed Forces, where these helicopters may be in use.

“I accept WorkSafe’s submission that the Statement was not intended and did not apply to the training exercise in question here, which was not conducted for the purpose of achieving OLOC for counterterrorism operations. HSWA applies to the exercise and Statement It is excluded by a particular training exercise from the scope of this statute.

“HSWA applies to the training exercise at issue in this case. NZDF’s request for dismissal of the charge is denied,” the judge wrote.

The case returns to court in December.


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