WorkSafe New Zealand Welcomes Laurenson Review Recommendations

WorkSafe New Zealand has today welcomed the recommendations in the Review of WorkSafe New Zealand’s Performance of its Regulatory Functions in Relation to Activities on Whakaari White Island. This review was commissioned by the Minister for Workplace Relations and Safety through the Ministry of Business, Innovation and Employment (MBIE) and was carried out by David Laurenson QC.

“The tragic loss of 22 lives and the ongoing injuries and trauma sustained in the eruption of Whakaari White Island in December 2019 continue to affect us all, and in particular I acknowledge the ongoing impact on individuals and their whānau,” said Phil Parkes, WorkSafe NZ Chief Executive. “They remain in our thoughts and motivate our determination to do better.”

“WorkSafe accepts that there were significant shortcomings in our implementation and enforcement of the Adventure Activities Regulations in relation to adventure activities on Whakaari. We deeply regret that and I am fully committed to improving our performance by addressing the review’s recommendations.

“Most notably we accept the review finding that we should have moved faster to enforce the registration of a helicopter operator who was resisting registration under the Health and Safety at Work (Adventure Activities) Regulations. We particularly welcome the review’s recommendation to extend the existing regulatory scheme to introduce a group of independent technical experts, identified by an appropriate industry body, who would be available as an extra layer of assurance for the safety audits of adventure activity operators on Whakaari.

“When I announced WorkSafe was filing charges against 13 parties in relation to the eruption I said ‘this was an unexpected event, but that does not mean it was unforeseeable’.

“Adventure activities, by their very nature, carry risk. Operators have the primary legal duty to keep people as safe as they can while taking part in adventure activities. WorkSafe has the duty under the regulations to ensure that Operators apply for registration so they can be subjected to independent audit of their systems. We are committed to working with the adventure activities sector to improve how risks are being managed to ensure safety of workers and participants.

“WorkSafe has a vision of an Aotearoa New Zealand where everyone comes home from work healthy and safe. We will continue to work with businesses, workers and communities to achieve that vision,” Parkes said.

WorkSafe is unable to engage in public discussion on details of the review, to respect the right of all parties to a fair trial and ensure court processes are respected in the prosecutions which it has commenced following the Whakaari tragedy.

The independent review is available here.

FAQs About WorkSafe NZ and Adventure Activities in New Zealand

1. What is the role of WorkSafe in ensuring the safety of Adventure Activities?

WorkSafe has two roles: we’re both the Registrar and regulator for adventure activities.

As Registrar we register adventure activity operators, unless we decline to do so for reasons set out in the Adventure Activities Regulations; suspend registration, for a period we see fit; or cancel registration. We also keep and maintain the public register of all Adventure Activity Operators.

As the regulator we deliver the regulatory functions set out in section 10 of the WorkSafe New Zealand Act 2013, including monitoring and enforcing compliance with relevant health and safety legislation such as the Health and Safety at Work Act 2015 and the Adventure Activities Regulations.

WorkSafe collaborated with Joint Accreditation System of Australia and New Zealand (JAS-ANZ) to establish the New Zealand Adventure Activities Certification Scheme.

The Scheme was established to enable safety auditors to seek and maintain JAS-ANZ accreditation as the primary way to demonstrate to WorkSafe that the requirements in the Adventure Activity Regulations to be recognised, and to maintain recognition, as a safety auditor have been met. JAS-ANZ check that auditors have the capability to undertake audits of adventure activity operators.

1. What constitutes an ‘Adventure Activity’?

An Adventure Activity is an activity:

• that is provided to a participant in return for payment; and
• that is land-based or water-based; and
• that involves the participant being guided, taught how, or assisted to participate in the activity; and
• the main purpose of which is the recreational or educational experience of the participant; and
• that is designed to deliberately expose a participant to a serious risk to his or her health and safety that must be managed by the provider of the activity; and
• in which;
  • failure of the provider’s management systems (such as failure of operational procedures or failure to provide reliable equipment) is likely to result in a serious risk to the participant’s health and safety; or
  • the participant is deliberately exposed to dangerous terrain or dangerous waters.

For further information visit ‘What we mean by adventure activity’ on our website.

1. How are Adventure Activity Operators regulated?

Safety in the adventure activities sector is mainly regulated through the Health and Safety at Work Act 2015 and the Adventure Activities Regulations.

Under the Act, adventure activity operators and all other people conducting a business or undertaking are required to ensure, so far as reasonably practicable, that their work does not put at risk the safety of their workers or other persons. This includes, for example, ensuring the right equipment is provided and that workers have the necessary training to manage the risks from their work.

The regulations require all adventure activity operators to be registered with the NZ Adventure Activities Certification Scheme (refer FAQ 1) and pass a safety audit at least once every three years. Audits are conducted by independent safety auditors against a safety audit standard for adventure activities published by WorkSafe.

In addition to these health and safety requirements, transport legislation establishes safety

requirements for the land, air, and marine transport aspects of operations. Certain activities, such as adventure aviation and jet boating, are regulated under transport rules rather than the Adventure Activities Regulations.

1. What steps are required for an Adventure Activity Operator to be registered?

The process includes preparing paperwork that details their safety management system and operating procedures, then working with a recognised safety auditor who checks that paperwork and follows it up with an onsite field-audit.

Once an operator passes this audit, the safety auditor will then provide a copy of the safety audit certificate to WorkSafe. The WorkSafe Registrar will then register the operator unless we decline to do so for reasons set out in the Adventure Activities Regulations.

Having passed an audit, it is the operator’s responsibility to continue to comply with this standard. They must ensure the approved safety management system is followed, and good practice is maintained. Additionally, they must review their safety management system in response to new information or as their business changes.

1. What period of WorkSafe does the review cover?

The Review of WorkSafe New Zealand’s Regulatory Functions in Relation to Activities on Whakaari White Island covers a five-year period, from November 2014, when the adventure activity regulations were fully in place, to 9 December 2019, the day of the eruption.

Phil Parkes was appointed Chief Executive of WorkSafe in 2020 and is responsible for implementing the improvements recommended by the review.

1. What improvements has WorkSafe made to the way it manages Adventure Activities since Whakaari/White Island?

In June 2020 we reviewed our operational performance as the Registrar and regulator for adventure activities. Actions taken from that review include:

• identifying areas where we consider the Adventure Activities Regulations could be strengthened and have provided that information to MBIE – the government agency responsible for administering, monitoring, and evaluating the Regulations
• improving our regulatory approach and how we administer the adventure activities regime
• increasing of the number of inspections carried out in the adventure activity sector each year
• improving capability within our Inspectorate for carrying out more effective adventure activities related inspections and coaching other inspectors in this area.
• introducing extra training to provide our operational staff with a better understanding of WorkSafe's role in the regulation of adventure activities
• increasing the number positions that carry out our role as Registrar for adventure activities
• improving the way we record information relating to registration, monitoring, and enforcement of adventure activity operators so it is easier to access by our people.
• establishing new ways of working to make it easier for WorkSafe’s different operational functions (including the Registrar and the Inspectorate) to take a combined and coordinated approach to our compliance monitoring and enforcement activities across the adventure activities sector.

1. What further improvements will you be making?

In addition to recommendations listed in today’s report, we also intend to make the following improvements:

• reviewing the NZ Adventure Activities Certification Scheme to consider the suggested improvements from MBIE’s targeted review of the adventure activities regulatory regime. The Scheme enables audit bodies to seek and maintain accreditation as a way to demonstrate to WorkSafe that they meet the requirements of the Adventure Activities Regulations
• reviewing the Safety Audit Standard for Adventure Activities to consider the suggested improvements from MBIE’s targeted review of the adventure activities regulatory regime
• strengthening our Memorandum of Understanding with JAS-ANZ (the Joint Accreditation Scheme of Australia and New Zealand). JAS-ANZ accreditation is the primary way that a safety auditor can demonstrate to WorkSafe that it meets, and continues to meet, the criteria in the Adventure Activities Regulations
• improving activity safety guidelines, which have been developed by industry technical experts in partnership with WorkSafe and provide detailed information about how to identify and manage risks for particular adventure activities
• developing new natural hazards guidance in consultation with industry and the public, to ensure operators of adventure activities are effectively managing risks posed by things like flooding, rockfalls, landslides, avalanches, and eruptions.

1. What should I look for when choosing an Adventure Activity operator to know that I will be safe?

Check the register of Adventure Activity Operators. Registered operators have passed a safety audit and are authorised to provide the stated activities for the stated period.

Please note that not all adventure activities fall within the scope of the Adventure Activities Regulations, and absence from the register does not automatically imply unsafe practices or failure to meet them.

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