By Brad Alcorn & Hannah Piggin

The Government has recently confirmed changes to the oversight of port safety, with the expansion of Maritime New Zealand’s role beyond regulation at sea to become the designated regulator of on-land port operations. The intention is to ensure a more uniform standard for port workers’ health and safety. But is it necessary? And does this mean that Maritime New Zealand will become the regulator for inland ports as well?

Background

Following the tragic deaths of two port workers last year, the then Workplace Relations and Safety Minister, Michael Wood, asked the Port Health and Safety Leadership Group to inquire into port safety and provide recommendations to reduce harm at ports.

In March 2023, the Group issued a Port Sector Insights Picture and Action Plan. Its vision is to deliver “A high performing, resilient port sector where people thrive and worker health and safety is prioritised through high-trust, tripartite collaboration”. The Group recommended implementing six priority actions, including shifting health and safety regulator arrangements from WorkSafe NZ to Maritime New Zealand.[1]

Changes to the regulatory arrangements for ports

WorkSafe NZ is the primary regulator under the Health and Safety at Work Act 2015. However, under section 191 of that Act, the Prime Minister may designate other agencies to regulate particular industries or sectors. In the maritime industry, there is currently a dual regulatory presence where Maritime New Zealand regulates “work on board ships” and “ships as workplaces” and WorkSafe New Zealand regulates land-based activities, including ports. This leaves a possible grey area at the point where operations cross from vessels on the water to the wharf.

The Group recommended extending Maritime New Zealand’s health and safety designation to cover not just ships but the entire port environment. The reasons for this were the need to avoid the confusion and inefficiency of there being two safety regulators on port, a risk of inconsistent messages from the two regulators, and to assist the regulators in establishing a more holistic view of the safety systems developed and implemented by ports and those organisations focused on port activities.

It was also noted that workers and organisations had expressed a desire for Maritime New Zealand to be more proactive and visible on ports, with more attention being given to the safety standards of arriving vessels (although this does not require any extension of Maritime New Zealand’s designation). Further, WorkSafe New Zealand is required to use its resources across several high-risk industries, which Maritime New Zealand does not.

The Group concluded that the change should first be implemented at seaports, before inland ports are considered. Inland ports are logistically more complex. They can include “a rail or barge terminal linked to a maritime terminal with regular inland transport services”,[2] ports connected to a river or lake, or even “an inland logistics centre with no direct relationship to ships or water”.[3] Although some inland ports in New Zealand are closely linked to seaports (and their associated risks), this is not always the case.

The growing number of inland freight hubs with no connection to seaports, may make it difficult to extend Maritime New Zealand’s health and safety designation to such hubs. The Group recommended that this should be further reviewed 18 months after Maritime New Zealand takes over regulation of seaports. In the meantime, Maritime New Zealand should work closely with WorkSafe New Zealand when developing health and safety standards at ports, to maintain consistency with inland ports.

The extension will cover those working at New Zealand’s 13 commercial trade ports. The aim is to provide a more port-focused approach to health and safety and to develop systems and safety operations for port workers across the board. WorkSafe New Zealand will remain responsible for some specific areas and processes, including major hazard facilities and permitting and licensing regimes. Maritime New Zealand will monitor and enforce compliance with duties for workplaces, work, workers or things to be authorised. Maritime New Zealand’s designation will include the area of ports inside their boundary fence where access is restricted by a security gate, and adjacent buildings, installations, structures, or equipment used in connection with the port’s operation or administration. The extension of Maritime New Zealand’s designation will take effect on 1 July 2024.

Comment by Brad Alcorn

Streamlining the regulation of safety in ports and creating a more uniform regulatory environment is commendable and the idea of Maritime New Zealand being the sole regulator for ports makes sense. However, we question whether the changes that have been made were necessary or could have been implemented differently.

The amendments to Maritime New Zealand’s designation have not eliminated the confusion, inefficiencies and inconsistencies that the Group identified. Instead, they have shifted them further away from the wharf edge and on to other workers and organisations involved in work at ports.

As an example, transport companies and their workers work within port areas, but much of the work they perform is outside port areas and so will be outside Maritime New Zealand’s designation. Having previously only dealt with one regulator, WorkSafe New Zealand, companies will now need to deal with two. What does Maritime New Zealand know about operating procedures for loading and securing cargo on a truck? How is Maritime New Zealand better placed to address and analyse such procedures than WorkSafe New Zealand?

This issue will be magnified if Maritime New Zealand’s designation is further expanded to inland ports, particularly those with no link to maritime activities, a change which, in our view, makes no sense at all.

To address these issues, the Group recommended that Maritime New Zealand and WorkSafe New Zealand should work closely to create standards and policies that align across their respective areas of control, but it is unclear why this was not being done adequately already. The Group also conceded that there is “a risk, no matter how aligned the two regulators are, that inconsistent messages are given.”[4]

It is difficult to create a perfect system, especially when dealing with activities that span such divergent environments as the sea and the land. However, it is uncertain how the change in designations will address the overlaps in the regulators’ authorities that will continue to exist and in turn how the confusion, inefficiencies and inconsistencies created by that overlap (these being triggers for the designation change in the first place) will be addressed.

Close co-operation, appropriate resourcing and clear communication from Maritime New Zealand and WorkSafe New Zealand come to mind as a potential solution to these concerns. It seems to us that this would have addressed the original concerns regarding Maritime New Zealand’s and WorkSafe New Zealand’s designations.

Bradley alcorn is a special counsel at fee langstone

hannah piggin is an associate at fee langstone

[1] https://www.maritimenz.govt.nz/media/do0dz0vs/port-sector-insights-picture-action-plan.pdf

[2] Theo Notteboom, Athanasios Pallis and Jean-Paul Rodrigue (2022) Port Economics, Management and Policy: Chapter 2.3 – Inland Ports / Dry Ports, New York: Routledge 218.

[3] Port Sector Insights Picture Action Plan – 2.3 Regulator Arrangements, Page 23.

[4] Port Sector Insights Picture Action Plan – 2.3 Regulator Arrangements, Page 22.