By Nathan Speir
Call me the black sheep, or Jethro West, of the Speir family. Road Torque readers might recognise the name. Steve Speir, my father, has run Minishifts in Auckland for the past 25 years. Although he probably won’t admit it, Dad learned his trade from my grandfather, Dennis, who drove for himself and Stevenson for decades.
Bucking the trend, I became a lawyer.
I have acted both for and against many regulators in the past 10 years and have defended a number of transport companies and drivers for logbook offences, licencing issues and contractual disputes.
With all the publicity around NZTA’s performance issues and “new approach” to regulatory compliance, I thought it would be a good time to reach out to Truck & Driver to provide some insight on where NZTA is heading and what it might mean for transport operators and drivers.
NZTA’s regulatory shake-up in a nutshell
In September 2018 concerns were raised about the regulatory function of the New Zealand Transport Authority (NZTA). The main concern was the backlog of compliance cases, covering vehicle certification, training, licensing, transport operators and drivers. Prior to this, NZTA’s focus was supposedly on education rather than enforcement.
Review of NZTA by Minister of Transport
In September 2018 the Minister of Transport commenced a review of NZTA, led by an external consultant.
The topics for the review included whether the Ministry should have identified performance issues earlier and whether it was adequately resourced. The review is expected to be completed mid-April but it seems inevitable from Ministry of Transport and NZTA comments so far that the answer will be no.
Transport Agency announces it is “getting tough” on enforcement
In October 2018 NZTA announced an extensive review of its open compliance files, and that it was “getting tough” on enforcement. It said that the public could expect an increased number of enforcement actions to be taken.
At a cost of more than $5 million in taxpayer dollars, a law firm in Auckland was engaged to clear a backlog of more than 850 compliance cases that had built up under a model that prioritised education over enforcement.
As at 2 April 2019 there were 309 compliance actions currently underway, the bulk of them relating to transport services including 102 notices of the proposal to revoke/suspend licenses.
When a company or person has its appointment or approval revoked it can no longer perform the activities it was appointed to carry out unless the Court overturns the decision through the appeal process.
Some of the more notable revocations have of course included Stan Semenoff Logging Limited (SSL) and Boss Transport Limited (Boss). Both SSL and Boss have commenced Court proceedings against NZTA in the wake of their revocations and have sought interim relief while they await their day in Court.
In SSL’s case, the High Court on 22 March 2019 took the view that its application for judicial review is arguable and suspended the revocation until further order of the Court.
Similarly, on 21 March 2019, the High Court granted Boss interim relief and prohibited NZTA from taking any further action in relation to its decision to revoke Boss’s Transport Service Licence.
In Boss’ case, in particular, the Court passed comment on the strength of its argument. This must be concerning for NZTA. I also note from Tuesday’s paper that SSL has come out swinging at NZTA’s comments and actions.
Where is NZTA heading?
Comments from NZTA’s lawyer including “…we are going to build to make sure we really demonstrate to the New Zealand public that they can be confident we have this under control” say it all. We can expect NZTA to take more enforcement action in the coming months and years.
In some ways, NZTA needs to be seen taking active steps, in order to shrug a reputation for having “no teeth”.
There are currently 663 open cases and that number could double.
We don’t raise these numbers to scare readers, but rather as a reminder that it is important that transport operators and drivers be vigilant. In the next article in this series, I will outline a few tips and tricks to make sure your compliance performance thinking is up to date. I will also give my opinion on whether or not NZTA have overstepped the mark.
In the meantime, I am happy to take calls from any Road Torque reader who might have a legal compliance question - feel free to pick up the phone.
Nathan Speir is a Partner at Rice Speir, a legal firm specialising in regulatory compliance and performance.
Posted on Thursday 11th April 2019
Opinion:Where is NZTA heading?
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