The RSTA Bill is the first in a series of regulatory Bills to ensure the transport regulatory system is fit for purpose, and that regulatory functions are modern and effective.
Regulatory stewardship involves developing appropriate regulatory tools to use and identifying who is best placed to operate them.
The Bill includes a proposal for the Minister of Transport (the Minister) to delegate some of their rule making power to a lower level through the creation of transport instruments.
The Bill also has five minor and non-controversial updates to transport legislation to ensure certain provisions are well maintained and fit-for-purpose. The minor matters are:
- clarify and modernise the powers of exemption and revocation in land and maritime legislation
- increase the maximum fine on conviction penalty limits for offence regulations in maritime legislation to match those in land and aviation
- increase the length of time that vehicles can be impounded after a vehicle crash to ensure the Police and investigators have sufficient time to examine the vehicle
- reinstate regional council status for the Chatham Island Council as this was removed unintentionally in a previous legislative change
- increasing in the board sizes for the transport agencies for voting purposes and allowing for flexibility
What are transport instruments?
Transport instruments are a delegated form of legislation. Transport instruments will provide a more efficient way to update detailed or frequently changing information.
Here is where transport instruments sit in terms of other legislative means:
Types of Legislation
What is it for?
Who makes the decision?
Set out the substantive policy of a law
Secondary legislation (legislative instrument)
Sets out specific matters in-line with an empowering provision in an Act
Goes through Executive Council and signed by the Governor General
Secondary legislation (other instruments)
Sets out requirements or standards in-line with an empowering provision in an Act
Minister of Transport – but Cabinet notes Minister’s decision and may approve policy
Tertiary (Transport) Instruments
Other instruments –but treated as part of the Regulation or Rule it is enabled by
Prescribes technical detail of how to comply with a rule or regulation
Minister of Transport –enables the creation of the instrument
Agency / Director - decides the content
Transport instruments can only be created with Ministerial approval. The design and management of a transport instrument would be delegated to a specified official (such as the Director of the relevant transport regulator).
Once the transport instrument is created, the specified official can amend, change or update the information within that transport instrument without further consideration from the Minister.
For example, a transport rule may describe the need to carry certain safety equipment on a vessel. The related transport instrument could then set out what safety equipment is required and where it should be placed.
What issues will be delegated down?
Frequently updated, detailed and/or technical requirements in the Rules.
What is the difference between transport instruments and Rules or Regulations?
Rules and Regulations are secondary legislation. Proposed amendments, additions or removal or Rules or Regulations can be approved by the Minister or Cabinet (respectively).
Transport instruments, on the other hand, are created by the Minister of Transport, but the design, maintenance and any amendments to the transport instrument is delegated to a specific official (i.e. a Director or Agency Board).
Could the Minister still overrule a decision made through a transport instrument?
Yes, transport instruments will be disallowable by the Minister.
How will transport instruments affect everyday people?
It will ease compliance, ensure systems and requirements are updated, and support innovation.
For example, some transport users may currently face unnecessary barriers or compliance costs such as needing to get a vehicle exemption, simply because the legislation is not up to date.
Why has this not been consulted on?
The exposure draft of the Civil Aviation Bill has a transport instrument proposal which has been consulted on. We have incorporated the feedback received from that consultation on transport instrument proposals included in this Bill.
There is also an opportunity through the Select Committee for the public and interested groups to comment on the proposal.
Additionally, the Bill will require that each individual transport instrument will have to be consulted on by all affected parties before being created.
Which Acts will include a provision empowering transport instruments?
The main Acts include:
- Land Transport Act 1998
- Land Transport Management Act 2003
- Railways Act 2005
- Maritime Transport Act 1994.
However, other Acts have empowering provisions including:
- Maritime Security Act 2004
- Road User Charges Act 2012
- Government Roading Powers Act 1989
- Port Companies Act 1988
- Ship Registration Act 1992
- Shipping Act 1987
- Submarine Cables and Pipelines Act 1996.
What is an exemption?
An exemption is tool that a regulator can use to allow non-compliance with a specified part of a Rule or Regulation. This tool is used when an individual or group’s circumstances mean that the intent of the Rule or Regulation is better complied with in another manner or where the Rule or Regulation is unnecessarily burdensome.
This is often the case when technology progresses faster than the Rule or Regulation change process, and an exemption is used to allow land transport participants to take advantage of the new, safer technology (even though it does not comply with the text of the Rule).
Exemptions are part of a wider range of regulatory tools that the regulator (Waka Kotahi NZ Transport Agency (NZTA)) can use to best manage the land transport system. Other regulatory tools include, but are not limited to, certification, licensing, inspection and speed management.
What changes are made to exemptions through this Bill?
The proposal will ensure that the legislation will allow for class and individual exemptions, expiry and revocation.
The Ministry has become aware that the exemption, revocation and expiry powers in the land and maritime Acts, lack some necessary features, are unclear, and are not modern best practice.
The Bill proposes that:
- Class exemptions will include things like vehicles and be based on current criteria to grant exemptions.
- The power to revoke or amend exemptions will be clarified and be based on criteria developed under the relevant Act.
- Expiry dates on land transport exemptions will be more flexible.
What are individual and class exemptions?
An individual exemption (called an “other exemption” in the Bill) only applies to a named person or people. For example, the NZTA could grant an exemption to a restricted drivers licence holder who works an evening shift, and would otherwise be breaching the 10pm curfew that is currently set out in the Driver Licensing Rule (the exemption could be only for the drive home from the workplace to their residence).
A class exemption is where a category of thing or person is defined. For example, stand up paddle boarders, who are attached to the board by means of a rope, are exempt from the requirement to have a personal flotation device on board. The exemption then applies to any thing or person that fits that definition. This is an ‘open exemption’ where new people or things that fit the definition benefit from the exemption without having to apply themselves.
Will these exemption and revocation powers be extended to civil aviation?
No. A similar proposal has been included in the Civil Aviation Bill which will be introduced to the House in mid-2020.
What will happen to my current exemption?
Nothing will change for current exemptions.
Which offences will have the higher penalty limits?
No offences will be changed at this stage.
How long will the time be extended for Police investigating crashed vehicles?
The Land Transport Act 1998 allows enforcement officers to seize and impound vehicles for up to seven days, following serious traffic crashes or ‘hit-and-run’ offences resulting in injury or death. This is to preserve or examine evidence, or establish the cause of the crash.
Investigations are led by New Zealand Police (Police) Serious Crash units. NZTA vehicle specialists are also sometimes involved in inspections of heavy motor vehicle crashes.
In many cases the seven-day period is inadequate, or puts unreasonably tight time constraints on inspectors to properly examine and return the vehicle. Some detailed scene examinations take time to process, by which time the existing seven-day impoundment period may have passed.
In particular, crashes that take place during a holiday period (often high-crash periods), mean that the seven-day impoundment period can include very few working days. This can result in difficulties in obtaining the expertise needed to inspect the vehicle.
The Bill proposes to extend the time from 7 days to 10 working days. Police can also apply for an extension of this time, which will also increase from 7 days to 10 working days.
Why are the current time limits being extended?
To ensure that Police and investigators have sufficient time to examine the vehicle. The time limit is particularly an issue around public holidays as the timing is in normal days rather than working days.
Why does Chatham Island Council not have regional council status?
This was an oversight, and was unintentionally removed by the Local Government Act 2002.
Why does the Chatham Island Council need regional council status?
Without regional council status, the Chatham Island Council does not have particular maritime powers including creating maritime bylaws and appointing a harbourmaster.
Why do the Transport Agency Board sizes need to increase?
There is undesirable rigidity in the permitted number of board members among the three transport Crown agents. NZTA’s board size is also undesirable for voting purposes.
- NZTA’s board is required to have at least 6, but no more than 8 board members
- Maritime NZ’s board is required to have 5 members
- Civil Aviation Authority’s board is required to have 5 members.
What will the Board sizes increase to?
The NZTA board will increase to at least 7 but no more than 9 members. The Maritime NZ and Civil Aviation Authority boards will be amended to at least 5 but no more than 7 members.
Why does NZTA have a higher Board size compared with Civil Aviation Authority and Maritime NZ?
This reflects the size and workload of the agency, and the subsequent capability and capacity required by a board.