When and how we use our corrective and enforcement tools
Introduction
As a risk-based regulator we prioritise taking action to prevent harm from occurring across the maritime domain.
When harm has occurred, or an unsafe situation or non-compliance is identified, we will first require that corrective action be taken to control the underlying risk so the potential harm, or further harm, is prevented. We may also, if proportionate to the circumstances, hold people to account for their non-compliance or the harm they have caused.
This policy sets out when and how we use our corrective and enforcement tools under the Maritime Transport Act 1994 (MTA) and the Health and Safety at Work Act 2015 (HSWA) to reduce the risk of harm across the maritime domain.
Exclusions
This policy does not apply to:
- foreign vessels in New Zealand ports, unless there are workers on board, such as pilots and stevedores, where HSWA applies
- New Zealand ships covered by the Safety of Life at Sea (SOLAS) Convention.
This policy also does not cover how we:
- perform our flag state and port state control inspections
- undertake our security role
- reduce the risk of harm from recreational craft use, which is set out in the Safer Boating Forum’s Recreational Craft Strategy
- decide when and how to carry out audits, inspections and investigations
- decide the specific actions we will take when prosecuting.
What is a corrective tool?
Corrective tools require a person or person conducting a business or undertaking (PCBU) to rectify unsafe circumstances they are responsible for or change their non-compliant behaviour. These tools are often accompanied by relevant education and guidance that supports the person or PCBU to clearly understand how to comply with their legal obligations under the MTA and/or HWSA.
Corrective tools are not intended to penalise, although a person or PCBU may incur costs to make the necessary changes so their operations are safe.
What is an enforcement tool?
Enforcement tools are used to:
- incentivise behaviour change by imposing penalties
- shine a light on health and safety issues that require a sector-wide focus, or
- hold people to account through a legal process.
Most enforcement tools we use are specified in legislation and include revoking maritime documents, enforceable undertakings, infringement notices, and prosecution.
Corrective tools used to address health and safety risks under HSWA
The main corrective tools we use to address health and safety risks under HSWA are prohibition and improvement notices. Where appropriate, we may also enter into voluntary agreements. Depending on the unsafe circumstance or non-compliance we may use these tools separately or concurrently.
Prohibition notice
A prohibition notice requires the PCBU with control over the unsafe circumstance or non-compliance to stop the activity entirely or in part, until we are satisfied that the underlying risk has been addressed.
We will issue a prohibition notice:
- if we reasonably believe that the situation poses, or may pose, a serious imminent or immediate risk to the health and safety of a person, and
- there are practicable steps available to control the risk.
We will not issue a prohibition notice if the unsafe circumstance or non-compliance is remedied immediately to our satisfaction.
If a person or PCBU to whom we have issued a prohibition notice fails to comply with the notice, we may:
- seek a court order to compel the person to comply, and/or
- commence a prosecution, potentially, for both the legislative failure to which the notice relates and the failure to comply with the notice.
As a regulator we may take remedial action to control the risk if:
- the urgency of the situation means seeking a court order would not be appropriate, or
- the person to whom a prohibition notice should be issued cannot be found.
When we are satisfied that the person or PCBU to whom we have issued a prohibition notice to has, so far as is reasonably practicable, controlled the risks the notice relates to, we will lift the notice.
Improvement notices
Improvement notices require a person or PCBU to make improvements to their business practices to address unsafe circumstances or ensure they comply with HSWA and its regulations. Improvement notices do not immediately prohibit a work activity.
We may issue an improvement notice where we reasonably believe there has been a failure to comply with HSWA or its regulations but this has not created a severe or immediate risk to justify using a prohibition notice.
The improvement notice may require the person to whom it is issued to resolve specific safety issues or improve risk management systems that are contributing to an unsafe circumstance or non-compliance in their workplace.
We may issue an improvement notice alongside issuing a prohibition notice. The prohibition notice is to address the immediate risk of serious harm, and the accompanying improvement notice will address the underlying risk management or system failures that have led to the unsafe circumstance or non-compliance.
The time a recipient has to comply with an improvement notice will depend on the level of risk, and the nature and complexity of the corrective action required. When practicable, timeframes for compliance will be discussed with the recipient before we decide what length of time is appropriate.
If a recipient does not comply with an improvement notice within the period specified in the notice, we may:
- allow more time for compliance with the notice conditions, or
- seek a court order to compel the recipient to comply, or
- commence a prosecution, for both the legislative failure to which the improvement notice relates and the failure to comply with the improvement notice.
We may agree to allow additional time for the person or PCBU to implement the actions specified in the improvement notice, if there are genuine reasons for requiring extra time and they have made some progress towards complying. It is unlikely that additional time will be allowed if there is clear evidence the person or PCBU has not taken their obligation to comply with the improvement notice seriously.
Our approach to using our corrective and enforcement tools
We are focused on being a proactive and balanced risk-based regulator that supports the maritime sector to control risks that could cause or have caused harm to people, property and the marine environment.
This includes working with the maritime sector to have:
- a common understanding of risks (including the harm that could result from uncontrolled risks) from maritime activity, and
- the appropriate knowledge and skills to manage the risks that cause harm, in consistent and effective ways.
Through audits, inspections and investigations, we monitor compliance with legislation, maritime rules and legislative instruments, and seek assurance that the risks that cause harm across the maritime domain are understood and effectively managed.
For more information on how we audit, inspect and investigate see our policy “When and how we audit, inspect and investigate (OP 20)”. We also use Approved Codes of Practice (ACOPs) to determine whether, for work where an ACOP specifically applies, the risk controls are:
- consistent with the ACOP, or that the person or PCBU provides a standard of health and safety that is equivalent or higher than the standard required in the ACOP, and
- take into account any other relevant guidance.
When we become aware of an unsafe circumstance or non-compliance, we will first require the person or PCBU to take appropriate corrective action to address the harm that has occurred, or prevent further harm from occurring.
To identify what corrective action is needed and over what timeframe, we will assess the level and imminence of risk underlying the unsafe circumstance or non-compliance.
To assess the level of risk, we will consider the likelihood of an event occurring and the possible harm if the event occurs or continues to occur.
Our assessment of risk will be based on information we obtain through:
- conversations and information provided by a person or PCBU, workers and others
- observations we make in the course of our regulatory activity
- documentation provided to us
- our knowledge of available controls to manage the risk, and
- other information that may be available to us.
To ensure the right corrective action is taken and within an appropriate timeframe, we will use the tool or mix of tools that we believe will most effectively support sustained safe outcomes to be delivered.
Where we have entered into a voluntary agreement or issued a notice, imposed conditions or detained a vessel, we will follow-up and verify that the corrective action has been taken.
Once corrective actions are substantively underway, we will consider whether it is proportionate to use our enforcement tools to hold the person or PCBU to account.
If a non-compliance relates to both the requirements under the MTA and duties under HSWA, the actions we may take are set out in our position statement “How we regulate health and safety issues relating to both the Maritime Transport Act 1994 and the Health and Safety at Work Act 2015 (PS 06)”
If we decide to use a corrective or enforcement tool, we will:
- record information about:
- observations made and provide a copy of the record to the relevant person, and
- non-compliance that may, along with other information, inform any future action, should further non-compliance be identified
- ensure parties who are directly affected by potential enforcement action are informed of the action we will take, their rights and what our investigation process entails.
We may also:
- collect and analyse information about incidences of non-compliance and harmful activity to identify insights into the cause of harm with the aim of using this information to prevent further harm, and
- share any health and safety insights including those that have been gathered through reviewing publications and from media so that other parties can learn from the situation.
Corrective tools used to prevent risks from maritime activity under the MTA
The MTA provides a range of corrective tools to address the risks of harm from maritime
activity to people, property and the environment. These may be used by the Director of
Maritime New Zealand (the Director) or a person delegated to act for them.
The main corrective tools we use under the MTA are:
- detaining or imposing conditions on domestic commercial vessels (vessels) or maritime
products - suspending or imposing conditions in relation to maritime documents
- revoking maritime documents, and
- prohibiting or imposing conditions on the use or operation of port facilities.
Detaining or imposing conditions to ensure health and safety and to protect the environment
We may:
- detain any domestic commercial vessel (vessel)
- prohibit or impose conditions on the use of a vessel or maritime product
- stop a vessel from entering a port, or
- seize a maritime product.
We are likely to detain a vessel if:
- there is clear evidence that operating the vessel presents a serious danger to the vessel or other property, persons on board, or a significant threat to the marine environment, and
- we believe that detaining the vessel is necessary to mitigate or prevent the harm.
Any detention will be maintained for such time as is necessary to ensure the risk of harm to a
person, property or the environment is managed.
We will not detain a vessel if doing so would breach an international convention.
We may prohibit or impose conditions on the use of a vessel or maritime product, stop a
vessel from entering a port, or seize a maritime product if there is clear evidence that, during
the use of a maritime product or operation of a vessel:
- a person or property is endangered, or is likely to be endangered, or
- the appropriate maritime or marine protection document is not in force or has expired in
respect of:- the vessel
- the master or any member of the crew, or
- the maritime or marine protection product, or
- conditions relating to a maritime or marine protection document in respect of a vessel or maritime or marine protection product are not being met, or
- watch keeping requirements specified for a vessel by the state in which the vessel is
registered are not being met, or - the master or crew are not familiar with essential shipboard procedures for the safe
operation of the vessel, or - there is or will likely be a discharge of a harmful substance in breach of legislation or a discharge of ballast was in breach of the MTA.
We will use the corrective tool or mix of tools that we believe to be proportionate to mitigate or
prevent the level of harm or ongoing harm that could occur.
We may retain vessels, maritime products, marine protection products or any part of these for
the duration they are required as evidence in any prosecution.
Prohibitions or conditions may be temporary or permanent, as is proportionate to address the
danger posed in the circumstances.
We will not exercise these powers if the danger is immediately remedied to our satisfaction.
Where we are satisfied, we will document our observations and how the danger was resolved
for our records.
Suspending or imposing conditions on maritime or marine protection documents
We may suspend or impose conditions on any maritime or marine protection document issued
under the MTA. We may also suspend recognition of, or impose conditions in relation to, a
document issued by another person or organisation.
We may suspend or impose conditions in relation to a maritime or marine protection document
if we believe that such action is necessary to manage the risk of harm or if harm has occurred
and:
- the holder of the document:
- has failed to comply with its conditions, or
- has failed to meet the MTA’s general requirements for participation in the maritime
system, or - communicates fraudulent, misleading or false information contrary to the MTA, or
- such action is necessary to ensure compliance with the MTA or any regulations or
maritime rules made under the MTA, or - the privileges or duties of the document holder are being carried out in a careless or
incompetent manner, or - there is reasonable doubt as to the seaworthiness of the vessel or as to the quality or safety of the maritime product to which the document relates.
Any suspension or imposition of conditions will be lifted when we determine that:
- the required action has been taken to address the matters that led to the suspension or
conditions, or - the conditions imposed no longer apply.
Where there are no conditions, any suspension will be lifted on the close of the 14th day after
the date of the suspension unless the suspension period is extended.
Revoking maritime and marine protection documents
Following suspension of a maritime document, we may, if we believe it necessary and subject
to giving prior notice, revoke a maritime document or recognition of a document. We will
consider it necessary to revoke a maritime document or recognition of a document where
doing so is a proportionate response and required to mitigate the risk of harm to people,
property or the environment from maritime activity.
Any person who has had a decision taken against them may appeal that decision to the
District Court.
Prohibition or conditions on the use or operation of port facilities
We may prohibit the use or impose conditions on the operation of any port if we believe there
is, or is likely to be a risk of harm (including if harm has occurred) to:
- the manner or use or operation of that port has caused, or is likely to cause an accident
- port personnel are not familiar with procedures essential for ensuring maritime safety and
preventing marine pollution - conditions imposed on the port operation are not being met.
We will maintain the prohibition or conditions for so long as is necessary in the interest of
maritime safety and the prevention of marine pollution.
We may take these corrective actions at any New Zealand port, not just at the 13 designated
ports covered by our HSWA Designation.
Other corrective tools
Voluntary agreements
While voluntary agreements are not provided for in legislation, we may enter into them for
corrective actions to be taken, rather than use a corrective tool under HSWA or the MTA.
We believe that the best health and safety outcomes are achieved when a person or PCBU
takes ownership for managing the risks that arise from their operations. This includes the
person or PCBU acknowledging and acting on improvements that are necessary to ensure
health and safety or to rectify non-compliance. Voluntary agreements recognise when there is
a genuine commitment to make the appropriate changes in a timely way.
We are likely to enter into voluntary agreements where:
- we are confident, based on our experience, that the person or PCBU entering into the
agreement has the appropriate authority and is likely to meet their commitments in the
timeframe agreed, and - the unsafe situation or non-compliance is not significant enough for us to prohibit an
activity, detain a vessel, or place conditions on a document or on a port operation.
For more information on voluntary agreements see our policy “When and how we use
Voluntary Agreements (OP 19)”.
Director’s letter
Through investigations, inspections, audits and other insights, we may detect patterns of
incidents or behaviours which give us cause for concern that the actions of a person or PCBU
indicate a wider health and safety system issue.
In such circumstances we may write to the person or PCBU to ensure they are:
- aware of the emerging pattern or trend, and our concerns about what could occur, and
- sufficiently informed to implement or strengthen their controls to effectively manage the
risk.
How we decide to enforce under MTA and HSWA
We will consider using an enforcement tool where we believe a person or PCBU needs to be
held to account. A decision on whether or not use an enforcement tool will always be made
when we are satisfied the person or PCBU has corrective action substantively underway to
address the unsafe circumstance or non-compliance.
The enforcement tools we use are:
- infringement notices
- prosecutions
- warnings
- enforceable undertakings.
In some circumstances, despite there being evidence that could support a decision to
prosecute, we may choose to take other action to ensure that lessons have been learnt and
that the offending is unlikely to be repeated. This may include sharing investigation findings so
that other sector participants can learn from what occurred and are deterred from similar
offending.
When we are likely to issue an infringement notice
Matters for which an infringement notice may be issued are specified in legislation (Including
maritime and marine protection rules). We may issue an infringement if, in the circumstances,
a prosecution would be disproportionate and:
- a person or PCBU has knowingly and wilfully failed to comply, or
- the parties should reasonably have been aware of the requirements and their obligations, or
- there have been repeated instances of non-compliance of the same or a similar nature, or
- we have communicated our clear expectations about the particular compliance requirements.
Generally, we will not issue an infringement notice under HSWA when a victim has been
seriously harmed. Taking an infringement action may prevent a person other than Maritime
New Zealand (Maritime NZ) from taking a private prosecution.
When we are likely to prosecute
When we have obtained sufficient evidence of a failure to comply with the MTA or HSWA we
will consider whether a prosecution is proportionate in the circumstances.
We are more likely to prosecute when one or more of the following apply:
- the non-compliance has seriously harmed, or put people, property or the environment at
serious risk of harm - the behaviour involved was reckless, wilful or negligent
- there has been a failure to comply with a corrective compliance action, and
- there is public interest in doing so.
We will also consider one or more of the following when making our decision to prosecute:
- the recent and relevant compliance history (both positive and negative) of the person or PCBU
- the combination of breaches involved in the incident. For example, the health and safety event and whether it was notified and the scene held
- whether non-compliance relates to a critical risk area identified by one or more of our Harm Prevention programmes.
For more information on prosecution, see our policy “How we make decisions about and
conduct prosecutions (OP 18)”.
When we will issue a warning
We issue warnings in situations where we are satisfied that there is evidential sufficiency of an
offence to support a prosecution, but we do not consider it is proportionate and in the public
interest to prosecute. Our prosecution policy sets out when we are satisfied it is proportionate
and in the public interest to prosecute.
We issue warnings
- to hold people to account in situations where we believe there has been criminal conduct, but have decided it is not proportionate or in the public interest to prosecute
- to incentivise behaviour change, that will mitigate the risk of the unsafe situation or non-
compliance recurring in the future - to recognise that the PCBU has investigated the harm that has occurred, or the unsafe
situation or non-compliance, learnt from it and corrected the situation - where it is in the public interest to do so.
We do not issue informal warnings.
For more information about warnings, see our policy “How we make decisions on issuing
warnings (OP 26)”.
When we are likely to accept an enforceable undertaking
A person or PCBU can apply for an enforceable undertaking for any contravention of HSWA
that may lead to, or has resulted in, a prosecution under the Act.
We are not compelled to accept an application for an enforceable undertaking but we are
likely to accept one if we consider it will be a proportionate enforcement outcome.
We will not accept an enforceable undertaking for any contravention that we believe would
amount to an offence against section 47 of HSWA (the offence of reckless conduct in respect
of duty).
For more information on enforceable undertakings, see our policy “How we make decisions
relating to Enforceable Undertakings (OP 13)”.
| Term | Definition |
|---|---|
|
Approved Code of Practice (ACOP) |
For the purposes of this policy, means practical guidelines approved by a Minister to help people in specific sectors comply with legal duties imposed by HSWA and its regulations. |
|
Designated port |
For the purposes of this policy means a port operated by a port company within the meaning of the Port Companies Act 1988 and includes the following ports:
The definition also includes:
|
|
Director’s letter |
For the purposes of this policy, means a letter from the Director to a person or PCBU outlining expectations around health and safety and compliance with the law. The letter may include any concerns or emerging trends that have been noted in the course of our work. |
|
Informal warning |
For the purposes of this policy, an informal warning is a warning that is not recorded or is used in place of issuing an infringement notice or other enforcement tool. |
|
Marine protection document |
For the purposes of this policy, means:
|
|
Maritime document |
For the purposes of this policy, a maritime document means:
|
|
Maritime domain |
For the purposes of this policy, refers to maritime activities related to maritime commercial operators, maritime security for ports and shipping, recreational boating, and national and Pacific search and rescue coordination within New Zealand’s marine waters. |
|
Maritime product |
For the purposes of this policy, means anything that comprises or is intended to comprise any part of a ship or that is or is intended to be installed in or fitted or supplied to a ship, and includes:
|
|
Maritime sector |
For the purposes of this policy, means all people, operations and vessels that come under our mandate to regulate, or by association we have a level of responsibility for or to. This includes the shipbuilding industry, ships, ports, port services, marine tourism and yachting, living and non-living natural resources and the environment. |
|
PCBU |
Means a person conducting a business or undertaking and is defined in detail in section 17 of HSWA. Most New Zealand businesses, whether large corporates, sole traders, or self-employed, are classed as PCBUs. |
|
Reasonably practicable |
Is defined in detail in section 22 of HSWA. It refers to something that is, or was, reasonably able to be done in relation to ensuring health and safety. |
|
Substantively underway |
For the purposes of this policy, means we are satisfied that corrective action is being undertaken by the person or PCBU that meets our expectations. |
|
Vessel |
For the purposes of this policy, means vessel, ship, or boat and is a generic term that is not associated with the size of the craft. |
|
Voluntary agreements |
A voluntary agreement is a non-legislative tool by which Maritime NZ accepts a commitment from a person or PCBU to take corrective |
Disclaimer
This policy provides information on when and how we use our corrective and enforcement
tools under the Maritime Transport Act 1994 and the Health and Safety at Work Act 2015. It
does not substitute for legislation. This might not be the most current version of the policy so
please check our website maritimenz.govt.nz to ensure that you are referring to the current
version of this publication.