The chief executive of the Pike River Recovery Agency will be held responsible if anything goes wrong with the re-entry of the drift.

Last month, the Prime Minister and Andrew Little - the Minister Responsible for the Pike River Re-entry, announced the Government would establish a government department by the end of January 2018 to assess the risk associated with a manned re-entry, and the best way to carry out the entry.

The entry of the mine's drift, and the recovery of any remains of the 29 men killed in 2010, would be completed by March 2019.

DASHA KUPRIENKO/STUFF Pike River Re-entry Minister Andrew Little will decide whether to send people back into Pike River on a recovery mission, but if anything goes wrong, he's not the one legally liable.

Both Jacinda Ardern and Little said there would be risk involved with a manned re-entry, but it was up to the agency to assess the risk and to mitigate it, and if the level of risk was acceptable, go forward with the re-entry.

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They also said anyone tasked with carrying out the re-entry had the right to refuse to take part in the job, if they deemed it unsafe.

JOSEPH JOHNSON/STUFF Family members of the Pike River victims, like Sonya Rockhouse, have been involved with the establishment of the agency, so far, and will continue to be part of the process. They say they don't want anyone taking undue risks as part of the re-entry.

At the time of the announcement, Little said the agency - Te Kahui Whakamana Rua Tekau ma Iwa (The Empowering Voice for the Pike 29) - would answer to him, and as the minister in charge, he would have the final decision.

He refused to respond to questions on who would be held liable, under New Zealand health and safety laws, if something went wrong.

However, documents relating to the establishment of the agency show the chief executive of the agency would be held legally responsible if something went wrong.

A ministerial briefing paper from November 3, said the liability would rest with those instructed by the minister, not the minister.

In order to remove that legal liability, health and safety laws would have to be changed - something the Government decided not to do.

The briefing papers show the Government also considered creating an autonomous Crown entity, which would mean it could make a decision, independent of the minister responsible. This option was rejected, in favour of a Government department.

Establishing an independent decision maker from the outset, would provide clarity on who was accountable for the decisions around safety, the briefing document said.

"It sets a clearer level of expectation around single focus and impartial decision making.

"If you wished to retain a departmental model to keep the entity closer to government, then the chief executive ... could be given the statutorily independent role of determining whether re-entry should go ahead.

"In addition, without legislation, the Minister could potentially be exposed to accessorial liability in the event that something goes wrong in the course of re-entry activities."

And a briefing document from the Ministry of Business, Innovation and Employment to the minister on October 26, said the decision maker should be independent.

Any decision about manned re-entry must be based on a technical assessment of the risks and advice that risks could be sufficiently mitigated, it said.

"A decision about safe re-entry will be best achieved by ensuring the decision-maker is independent," the document said.

The decision-maker should be responsible for developing "a robust and credible plan" for safe recovery of the drift, including engaging fully with the Pike River families and their experts, and then charged with implementing this plan.

"This provides clear lines of accountability, with the decision maker and implementer of the decision being the holder of the key duties of care around ensuring health and safety."

The Government has budgeted $7.6 million a year for three years, up to $23m, for the agency and re-entry.

NOT FAIR FOR CHIEF EXECUTIVE TO BEAR THE BURDEN - NATIONAL

National workplace relations spokesperson Amy Adams said placing the health and safety legal liability on the agency's chief executive was "patently wrong".

"While there's been lots of talk about how Mr Little will be responsible for his decisions, it will be some poor senior public servant who carries the can."

Adams said it was wrong to put a chief executive in a position where the minister had the final say, but the responsibility rested with someone else.

"Why would any sensible person put their hand up for that job?"

Adams said the Government should have established an autonomous agency, to give the decision maker independence from politicians.

"That would have been the responsible approach which fairly reflected the dangers of re-entering the mine. This undermines the very health and safety laws which were strengthened in the wake of the Pike River disaster to try and ensure it never happens again."

When Little released the documents, he said Government was committed to being open and accountable, and there would be continued transparency as work progresses on the manned re-entry of the drift.

On Monday, Ardern was asked whether she was comfortable with the legal liability resting on the shoulders of the chief executive.

"I'm confident that we're going to go through a process that means we're going to dot all of our i's and cross all of our t's," she said.

"We've given ourselves enough lead time to make sure we do this properly.

"But the point ultimately is whether or not we're doing right by families and that's what we've undertaken to do."

Little said the Government had proven its commitment to working with the Pike River families on a plan to safely explore the drift.

"The Pike River Recovery Agency's re-entry plan will mitigate risks in compliance with the existing health and safety legislation passed by the last government.

"Doing what can be safely done is nothing less than what Amy Adams' own government promised," he said.

"These are crocodile tears from a National Party that withheld information from the families and treated them appallingly."

The Labour-led Government had made it clear it would involve the families throughout the process, which included a weekly meeting between the family representatives and officials, after the families said they felt excluded from the decision-making process in the past.