Maritime Transport Amendment Bill
The departmental disclosure statement for a government Bill seeks to bring together in one place a range of information to support and enhance the Parliamentary and public scrutiny of that Bill.
It identifies:
- the general policy intent of the Bill and other background policy material;
- some of the key quality assurance products and processes used to develop and test the content of the Bill;
- the presence of certain significant powers or features in the Bill that might be of particular Parliamentary or public interest and warrant an explanation.
This disclosure statement was prepared by the Ministry of Transport. It revises the original department disclosure statement, available online at: www.transport.govt.nz/assets/Uploads/Sea/Documents/Maritime-Transport-Amendment-Bill-Departmental-Disclosure-Statement.pdf.
The Ministry of Transport certifies that, to the best of its knowledge and understanding, the information provided is complete and accurate at the date of finalisation below.
4 December 2017.
The Main Areas of Change to the Original Disclosures
Part 1: Drug and alcohol testing amendments
The Supplementary Order Paper (SOP) amends Clauses 4, 5, 6, 7, and 28 and Schedule 1 of the Bill which is concerned with new Schedule 1AA of the principal Act (transitional, savings, and related provisions) and new clause 7A is inserted. As the revised drug and alcohol testing scheme does not impose any obligation on an operator to prepare a drug and alcohol management plan (DAMP), the transitional provisions in new Schedule 1AA are no longer required.
Transitional provisions support the oil pollution compensation provisions of the Bill. Clauses 4 and 7 and the drug or alcohol testing provisions currently in new Schedule 1AA are deleted and that schedule is now provided for in new clauses 7A and 28.
Schedule 1 of the Bill, which contains new Schedule 1AA is amended, by removing the drug or alcohol testing transitional provisions and inserting the oil pollution compensation transitional provisions as a consequence of the change made to clause 28 of the Bill
Clause 5 amended
Clause 5 Section 36 amended (Maritime rules relating to other matters) expands the Minister of Transport’s rule-making powers to support the obligations and powers established by new Part B (as inserted by clause 6).
To reflect the removal of random testing and DAMP (drug and alcohol management plan) requirements from new Part B, the Supplementary Order Paper (SOP) amends clause 5:
- to no longer provide for rules to impose requirements relating to random testing
- to no longer provide for rules to impose requirements that a DAMP must comply with.
Because the Director’s testing power will no longer be carried out in accordance with testable drugs and/or alcohol or drug levels specified in an operator’s DAMP, the SOP amends clause 5 to enable rules to provide for a testing scheme for the purposes of new Part 4B, including:
- specification of testable drugs
- specification of permissible levels of alcohol or testable drugs
- testing processes and procedures.
This amendment will ensure that rules can provide certainty and clarity for operators about how the Director’s testing power will be implemented.
Clause 6 amended
Clause 6 replaces Part 4B of the Bill with a new Part 4B which provides for new sections 40X, 40Y, 40Z, 40ZA, 40ZB and 40ZC.
New section 40Y amended
To reflect removal of the requirements for operators to develop a DAMP and undertake random testing, the SOP amends Section 40Y (Interpretation) by deleting the definitions of:
- DAMP operator
- Prescribed safety system
- Response plan.
Rules under section 36 as amended by clause 5 will be able to specify any equivalent or similar definitions that may be needed for the purposes of Part 4B.
New section 40Z deleted
The SOP deletes and substitutes a new section 40Z (DAMP operator must develop a DAMP).
In the absence of a requirement under Part 4B for a drug and alcohol management plan to provide for random testing, existing rule-making powers under section 36 of the Act are already sufficient to require operators to have a drug and alcohol management plan.
Maritime rules already impose relevant obligations on operators under the Maritime Operator Safety System (MOSS) and under rules that regulate commercial jet boat and white water rafting operators.
The substitute section 40Z replaces section 40ZC, as below.
New section 40ZA deleted
The SOP deletes and substitutes new section 40ZA (Relationship between DAMP operator and DAMP operator’s maritime document) because removal of the concept of a DAMP operator from the Bill makes it redundant.
This does not affect the existing ability under the MTA and maritime rules to make an operator’s maritime document conditional on meeting drug and alcohol management requirements.
The substitute section 40ZA replaces section 40ZE, as below.
New section 40ZB deleted
The SOP deletes new Section 40ZB (Random testing by DAMP operator), which required DAMP operators to ensure the random testing of safety sensitive workers.
This is the pivotal change to new Part 4B, and all other amendments that the SOP makes to this Part are consequential to the deletion of new section 40ZB.
Removal of this provision will not in any way affect the conduct of random testing that many maritime operators already have in place at their own initiative, for the purpose of meeting their workplace safety obligations.
The substitute section 40ZB replaces section 40ZD, as below.
New section 40ZC amended
The SOP amends new Section 40ZC (Director testing) and renumbers this provision as new section 40Z, consequential to deletion of new sections 40ZA and 40ZB.
Because DAMP testing provisions will not now exist to serve as the basis for exercising the Director’s power to test a safety sensitive worker, the SOP amends the Director’s power by providing discretion to carry out testing in relation to:
- testable drugs and any permissible alcohol or drug levels specified in an operator’s safety system; or
- testable drugs and any permissible alcohol or drug levels specified by the maritime rules.
This will accommodate situations where an operator already has a testing scheme in place, while providing clear criteria for Director testing if an operator does not have a testing scheme or the Director decides not to rely on an operator’s scheme.
Retention of Director testing provides a mechanism to accumulate data through systematic testing and the conduct of tests after accidents or incidents or in circumstances where the conduct of a safety-sensitive worker or operator raises safety concerns.
New section 40ZD amended
The SOP amends new Section 40ZD (What happens if a worker refuses consent or the test result is not negative) and renumbers it as section 40ZB. An amendment to subsection (3) and a new subsection (4) clarify that the operator must prohibit a worker from performing safety-sensitive activities until they reasonably believe that the worker is able to safety perform those activities.
With the removal of the requirement for operators to have a DAMP, those provisions become redundant. The SOP therefore deletes clauses 2 to 6 from Schedule 1AA.
New section 40ZE amended
The SOP amends new Section 40ZE (Worker may require second Director Test) and renumbers it section 40ZA. A new subsection (3) clarifies that the results of the second test replace the results of the first test for the purposes of new Part 4B.
New section 40ZF amended
The SOP amends new Section 40ZF (Test results to be used in civil proceedings and certain prosecutions) to ensure that the use of test results obtained by the Director is subject to the same limitation as applied to test results from random testing under the now deleted new section 40ZB.
Clause 7A replaces Clause 7
The SOP deletes Clause 7, replacing it with Clause 7A that outlines inserts a new Schedule 1AA Transitional, savings and related provisions. Clauses 2 to 6 of this Schedule contain interpretation, savings and other provisions relating to DAMPs.
Clause 28 revised
The SOP revises Clause 28, which inserts the Schedule 1AA set out in Schedule 1 of the Act as the first schedule to appear after the last section of the principal Act.
Part 3: Miscellaneous provisions
Clause 34 is deleted, which would have amended section 198 of the Act by changing the definition of ‘coastal cargo’ in section 198(6). Section 198 requires that passengers and goods may be carried between New Zealand ports only by a New Zealand ship or a foreign ship that is either chartered to a New Zealand-based operator or passing through New Zealand waters on a continuous international journey.
Part One: General Policy Statement
The Maritime Transport Amendment Bill 2016 (the Bill) makes amendments to the Maritime Transport Act 1994 (the Act) that address policy objectives, the flexibility of rule-making and improve the serviceability of the Act into the future.
Part 1 of the Bill contains provisions that will increase the level of compensation available to meet claims for oil pollution damage caused by a spill from an oil tanker in New Zealand waters. The Bill will enable New Zealand to accede to the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992. The Protocol establishes an additional tier of compensation that can be called upon in the event of a major oil tanker spill in the waters of a contracting State.
Part 2 of the Bill l inserts, as new Part 4B to the Act, amendments that establish measure to more effectively manage the risks associated with alcohol and drug use in the commercial maritime sector.
The Bill, as amended by the Supplementary Order Paper (SOP), excludes from new Part 4B the requirement for maritime operators to carry out random drug and alcohol testing of workers in accordance with drug and alcohol management plans (DAMPs) to be established by operators as part of their safety management systems.
The Bill retains provision for the Director of Maritime NZ (the Director) to undertake non-notified testing of safety-sensitive workers at reasonable time and in reasonable circumstances. Retention of this power will provide a mechanism to accumulate data through systematic testing and the conduct of tests after accidents or incident or in circumstances where the conduct of a safety sensitive worker or operator raises safety concerns.
As a result of removing the random the random testing and DAMP obligations, the Bill as amended by the SOP includes consequential, minor and technical changes. These include an amendment to ensure that the Director’s non-notified testing power will be subject to the same restrictions existing restriction on the use of testing results in criminal proceedings as applied to testing by maritime operators und
Part 3 of the Bill comprises miscellaneous measures intended to improve the operation of existing provisions of the Act and address minor anomalies.
The SOP removes clause 34 from Part 3. Clause 34 amended section 198 of the Act by changing the definition of ‘coastal cargo’ in section 198(6) to exclude passengers and goods carried between New Zealand ports. The amendment has been removed due to concerns from submitters that by allowing foreign ships more access to the Chatham Islands trade, it could affect investment decisions on a future replacement for the 30-tear old ship that presently serves the trade.
The remaining provisions of Part 3 are retained, and include amendments to:
- amend a number of the Minister of Transport’s maritime rule making powers in section 36(1) of the Act to provide more flexibility for rules to “provide for” rather than to “prescribe” matters in respect of which the Minister may make maritime rules. The effect, in conjunction with s451(4) of the Act, is to make maritime rules more flexible in what they can require or provide:
- allow regional councils to retain fees from infringement offence notices issued for breaches of maritime rules, to provide an incentive for councils to enforce the national rules directly rather than replicate them in local bylaws:
- amend section 452(5) of the Act so that only the Head Office of Maritime NZ is required to hold copies of all documents incorporated in maritime and marine protection rules:
- amend section 33X(1) of the Act to enable territorial authorities to transfer responsibilities in relation to maritime activity to council-controlled organisations and port operators:
- clarify that powers transferred to a public authority under section 33X of the Act can be varied or withdrawn, by mirroring the relevant process from the Local Government Act 2002:
- enable territorial authorities to transfer their powers to carry out harbour works under section 33I(1)(b) to another public authority:
- clarify the wording of subsection 388(n) of the Act to enable the Director to issue guidelines consistent with requirements and procedures under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004:
- clarify the definition of ‘marine protection product’ in section 225 of the Act, for the purposes of marine protection rules.
Part Two: Background Material and Policy Information
Published reviews or evaluations
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2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill? |
YES |
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Consultation document: New Zealand’s accession to the Supplementary Fund Protocol – provides background information about the Supplementary Fund Protocol, Ministry of Transport, May 2014. Discussion paper: Clear heads: options to reduce the risks of alcohol-and drug-related impairment in aviation, maritime and rail, Ministry of Transport, March 2015. |
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Relevant international treaties
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2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty? |
YES |
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The Bill is intended to give effect to the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992.
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2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty? |
YES |
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National Interest Analysis: Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (Supplementary Fund Protocol), Ministry of Transport, May 2014. |
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Regulatory impact analysis
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2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill? |
YES |
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2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements? |
NO |
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The regulatory impact statement did not meet the threshold for RIA Team assessment. |
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2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements? |
NO |
Extent of impact analysis available
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2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill? |
NO |
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For drug and alcohol management, more analysis is available in the NZIER report. The report provides an assessment of the relative risk of fatalities across transport modes, where alcohol and drug impairment are contributing factors in accidents. |
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2.5. For the policy to be given effect by this Bill, is there analysis available on: |
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(a) the size of the potential costs and benefits? |
YES |
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(b) the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth? |
NO |
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For the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 refer: For the drug and alcohol work, the Cabinet paper “Reducing the Risks of Alcohol and Drug Impairment in Aviation, Maritime and Rail” can be found on the Ministry’s website http://www.transport.govt.nz/assets/Uploads/Our-Work/Documents/Release-of-the-draft-discussion-paper-Clear-heads-Options-to-reduce-the-risks-of-alcohol-and-drug-related-impairment-in-aviation-maritime-and-rail.pdf The RIS can be found at http://www.transport.govt.nz/assets/Uploads/About/Documents/RIS-Options-to-reduce-the-risks-of-alcohol-and-drug-related-impairment-in-aviation-maritime-and-rail.pdf No measures in this Bill have the potential to cause a substantial unavoidable loss of income or wealth for any group of persons. |
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2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by: |
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(a) the level of effective compliance or non-compliance with applicable obligations or standards? |
YES |
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(b) the nature and level of regulator effort put into encouraging or securing compliance? |
YES |
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For the drug and alcohol work, the Cabinet paper “Reducing the Risks of Alcohol and Drug Impairment in Aviation, Maritime and Rail” can be on the Ministry’s website http://www.transport.govt.nz/assets/Uploads/Our-Work/Documents/Release-of-the-draft-discussion-paper-Clear-heads-Options-to-reduce-the-risks-of-alcohol-and-drug-related-impairment-in-aviation-maritime-and-rail.pdf
The RIS can be found at http://www.transport.govt.nz/assets/Uploads/About/Documents/RIS-Options-to-reduce-the-risks-of-alcohol-and-drug-related-impairment-in-aviation-maritime-and-rail.pdf
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Part Three: Testing of Legislative Content
Consistency with New Zealand’s international obligations
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3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations? |
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The Ministry of Transport’s drafting instructions to the Parliamentary Counsel Office for measures to give effect to the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 were designed to ensure that the new measures did not alter the Act’s implementation of obligations under the 1992 Convention. |
Consistency with the government’s Treaty of Waitangi obligations
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3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi? |
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The Ministry of Justice (Treaty of Waitangi Negotiations) was consulted on the amendment to section 33X of the Act to allow the transfer of power from a regional or unitary council to a public authority be varied or withdrawn. The need for this amendment was identified in discussions with the Department of Internal Affairs and the Office of Treaty Settlements around a proposal that Treaty of Waitangi settlement legislation (which will give effect to the Whanganui River Deed of Settlement, signed on 5 August 2014) deem Te Awa Tupua (the Whanganui River) a public authority for the purposes of section 33X of the Act. |
Consistency with the New Zealand Bill of Rights Act 1990
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3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990? |
NO |
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The drug and alcohol management plan proposals are consistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. There are no gender or disability implications. The drug and alcohol management plans sit exclusively within the employment relationship. Any prosecutions by the Crown Agencies are unlikely to have new New Zealand Bill of Rights Act 1990 implications as the prosecutions would be for existing offences.
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Offences, penalties and court jurisdictions
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3.4. Does this Bill create, amend, or remove: |
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(a) offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)? |
NO |
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(b) the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)? |
NO |
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3.4.1. Was the Ministry of Justice consulted about these provisions? |
YES |
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The Ministry of Justice was consulted during the policy process for drug and alcohol management policy. The Ministry of Justice (Treaty of Waitangi Negotiations) was consulted on the amendment to section 33X of the Act, as discussed in relation to question 3.2
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Privacy issues
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3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information? |
NO |
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The Bill complies with principles and guidelines set out in the Privacy Act 1993. Test results obtained from Director of Maritime NZ testing are not admissible in any criminal proceedings other than the prosecution of an offence against any of the following:
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3.5.1. Was the Privacy Commissioner consulted about these provisions? |
NO |
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The ability of the Director to obtain and hold personal data and will require engagement with the Privacy Commissioner. |
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External consultation
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3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill? |
YES |
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Refer to Appendix Two for details No disclosure draft of this Bill has been released.
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Other testing of proposals
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3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? |
YES |
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The provisions of the Bill that give effect to theProtocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 follow the approach that Part 25 of the Act already applies to implementation of the 1992 Convention. For the drug and alcohol management policy, a number of operators are already undertaking the drug and alcohol requirements successfully. This policy will bring all operators into line with best practice. Other jurisdictions, such as Australia, have successfully implemented similar proposals. Secondary legislation (maritime rules) will complete policy and implementation details concerning such matters as application of Director drug and alcohol testing, identification of safety sensitive activities and procedural requirements for random testing. |
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Part Four: Significant Legislative Features
Compulsory acquisition of private property
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4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property? |
NO |
Charges in the nature of a tax
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4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax? |
YES |
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The Bill establishes the mechanism for receivers of oil imported into New Zealand to pay any levy relating to the International Oil Pollution Compensation Supplementary Fund. The levy funds a second tier of additional compensation available for damage caused by an oil spill from an oil tanker, in the waters of any State party to the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992. The Act already employs the same type of mechanism in relation to levies payable by oil importers to fund compensation payable under the 1992 Convention that provides for compensation over and above the costs of pollution damage for which the ship owner is directly liable. |
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Retrospective effect
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4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively? |
NO |
Strict liability or reversal of the usual burden of proof for offences
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4.4. Does this Bill: |
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(a) create or amend a strict or absolute liability offence? |
NO |
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(b) reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding? |
NO |
Civil or criminal immunity
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4.5. Does this Bill create or amend a civil or criminal immunity for any person? |
NO |
Significant decision-making powers
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4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests? |
YES |
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The Bill provides for an individual who has returned a drug or alcohol test with a result other than negative, or has declined to take a test, to be stood down from any safety sensitive activity until such time as the individual is again safe to undertake such activity.
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Powers to make delegated legislation
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4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation? |
NO |
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4.8. Does this Bill create or amend any other powers to make delegated legislation? |
YES |
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Clause 6 amends a number of the Minister of Transport’s rule making powers in section 36(1) of the Act to provide more flexibility for rules to “provide for” rather than to “prescribe” requirements concerning the matters in respect of which the Minister may make maritime rules. Clause 29 amends section 388(n) of the Act, as amended by section 86(10) of the Biosecurity Law Reform Act 2012, to align the rule-making power more closely with the relevant international convention provision. The Bill does not create or amend a delegated law-making power for the purpose of implementing drug and alcohol measures. However, as the current rule-making powers are sufficient rules for that purpose, such rules could in effect expand the scope of powers contained in delegated legislation. |
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Any other unusual provisions or features
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4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment? |
NO |
Appendix One: Further Information Relating to Part Two
Extent of impact analysis available – question 2.5(a)
Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992
The Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (Supplementary Fund Protocol) establishes a third tier of compensation under international conventions for pollution damage caused by oil spills from oil tankers. This raises the total compensation available for a tanker spill to $NZ 1.540 billion.
New Zealand has acceded to the international conventions that establish the first two tiers of compensation, but not the Supplementary Fund Protocol.
The Supplementary Fund provides access to compensation to bring the combined total of compensation available under the International Convention on Civil Liability for Oil Pollution Damage 1992 (the CLC), the International Oil Pollution Fund (the IOPC) and the Supplementary Fund to $NZ1.540 billion.
Like the IOPC, the Supplementary Fund is funded by levies on oil importers.
The Supplementary Fund will collect levies only when the cost of an oil spill in a contracting state exceeds the $NZ411 million compensation payable under the CLC and IOPC. Funds are not built up from regular annual levies.
Tier 1 comprises compensation of up to $NZ182 million, payable by the tanker owner or its insurer under the CLC.
Tier 2 comprises compensation from the IOPC established by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992.
The IOPC ‘tops up’ compensation provided under the CLC to a combined total of $NZD411 million, funded by levies collected from oil importers in contracting states.
Accession to the Supplementary Fund would provide New Zealand with access to a relatively inexpensive global insurance scheme. The potential levy costs in the event of a claim on the Supplementary Fund are considered appropriate to the level of risk that New Zealand is exposed to from the transport of oil.
Appendix Two: Further Information Relating to Part Three
External consultation – question 3.6
Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992
National Interest Analysis
Public consultation was undertaken with interested parties, which included the oil importing companies, oil cargo carriers, and local authorities, and direct discussions were held with some respondents.
Consultation was undertaken with the Ministry of Business, Innovation and Employment; the Environmental Protection Authority; Te Puni Kōkiri; Maritime New Zealand; the Treasury; the Ministry for the Environment; the Department of Conservation; the Ministry of Foreign Affairs and Trade. The Department of the Prime Minister and Cabinet was informed.
Options for Management of Drug and Alcohol impairment
Public consultation was undertaken on the discussion document Clear heads: options to reduce the risks of alcohol-and drug-related impairment in aviation, maritime and rail (see http://www.transport.govt.nz/ourwork/clear-heads/).
The Ministry received 37 submissions and held 10 face-to-face meetings with 14 organisations. The organisations represented large firms, small and medium enterprises, industry representative groups and members of the public.
The Ministry of Transport worked with Maritime New Zealand, the Civil Aviation Authority the Transport Accident Investigation Commission and the New Zealand Police in developing the policy proposal.
The Treasury, the Ministry of Business, Innovation and Employment, WorkSafe New Zealand, the Ministry of Justice and the Department of Internal Affairs were consulted on the policy to be given effect by this Bill. The Department of the Prime Minister and Cabinet was informed.
Appendix Three: Further Information Relating to Part Four
Powers to make delegated legislation – question 4.8
The Director of Maritime NZ’s power to undertake drug and alcohol testing in reasonable circumstances will be retained in the Bill. With the removal of mandatory random testing from the Bill, Director testing can no longer be carried out according to the testing requirements of an operator’s DAMP. Director testing will instead be carried out in accordance with requirements specified by or under maritime rules, and in line with section 36 as amended by clause 5.