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Following an independent review of the New Zealand Transport Agency’s performance, the Government is considering designating the Transport Agency as a regulator under the Health and Safety at Work Act 2015 (HSWA).

Such a move would significantly increase the Transport Agency’s regulatory powers and allow it to take criminal prosecutions for health and safety breaches arising across the transport network.

Review by the Ministry of Transport

Earlier this year concerns were raised about the effectiveness of the Transport Agency’s regulatory functions, including concerns about a backlog of around 850 regulatory compliance cases. The Minister of Transport, the Hon Phil Twyford, responded by making changes to the Board of the Transport Agency and instructing the Ministry of Transport to review the regulatory capability and performance of the Transport Agency.

The review report was published in October 2019. The Ministry of Transport concluded there are significant deficiencies in the Transport Agency’s regulatory capabilities and that over time these have led to regulatory failure within the Transport Agency. The report found that the Transport Agency’s recent priorities have focused on building roads and not on the safety of road-users.

The Ministry of Transport has recommended various ways to improve the Transport Agency’s performance, and the Government has committed to adopting and implementing those recommendations as soon as possible.

Responsibility for health and safety

One recommendation is for consideration to be given to designating the Transport Agency as a health and safety regulator under the HSWA.

Critics have previously argued there is an incoherent and uncoordinated approach to regulation and enforcement of health and safety in the land transport sector, with a lack of clarity in relation to the extent and boundaries of different agencies’ responsibilities. The Ministry of Transport has cautiously endorsed this concern and given the example of the enforcement role regularly undertaken by the New Zealand Police after traffic accidents, as this contributes to the Transport Agency not being able to operate as “an effective end-to-end regulator”.

Designating the Transport Agency as a regulator under the HSWA would give it additional powers and encourage it to usurp (or, at least, co-exist with) the Police and WorkSafe New Zealand by enforcing health and safety law in the land transport sector. The Ministry of Transport believes this move will remove the overlap and jurisdictional question marks that often arise between the Police and WorkSafe when work related vehicle incidents occur.

It is not yet certain that the suggested new designation will be made. The Ministry of Transport and the Ministry of Business, Innovation and Employment have been asked to assess the merits of the proposed designation and to report back to Minister Twyford and his colleague the Hon Ian Lees-Galloway, the Minister for Workplace Relations and Safety, in the new year. As 2020 is an election year, time will tell if the Government makes a change or leaves this until after the election.

Do we really need another health and safety regulator?

New Zealand has many incidents involving motor vehicles and issues around vehicle licencing, maintenance, and safety that are not currently investigated through a “workplace health and safety” lens. Designating the Transport Agency as a regulator under the HSWA and encouraging it to look at these issues accordingly makes sense. The Transport Agency already does this for incidents on the rail network, and bringing the logistics supply chain together has merit. It is also consistent with the approach in other sectors. The Civil Aviation Authority and Maritime New Zealand are designated as regulators under the HSWA to regulate health and safety in the aviation and maritime sectors, and despite occasional jurisdictional hiccups, the system usually works well.

The current Chief Executive of WorkSafe, Nicole Rosie, has been appointed as the Transport Agency’s new Chief Executive from February 2020. This will give the Transport Agency considerable support and experience for the transition into an enhanced regulatory role if Ministers Twyford and Lees-Galloway make the proposed designation.

We have two concerns with the proposal:

  • Firstly, there is a natural conflict in making the Transport Agency the regulator when it is the principal client on many large infrastructure projects. Can we have comfort in the Transport Agency investigating its own oversight of projects? Can contractors working for the Transport Agency have confidence regulatory investigations will not be used for collateral contract related purposes? Operational separation will be an important means to mitigate these risks, but governance direction will be harder to manage.
  • Secondly, the scope and structure of any designation will need to be determined with care to ensure the Transport Agency can operate as an effective regulator in the land transport space. It will be important for the inevitable jurisdictional overlap and inefficiencies between multiple agencies to be eliminated (or, at least minimised).

Clear communication with transport operators will also be needed to signal regulatory expectations and the approach the Transport Agency will take to enforcement.

Any businesses involved in transportation or with people travelling on the roads will need to take note of the Government’s next moves, and watch to see what 2020 brings.

Please contact our team of health and safety lawyers and let us know if you are interested in updates on this issue once the Government decides how to proceed.

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