Maritime Transport (Lifejackets on Recreational Craft) Amendment Bill

Committee of the whole House

There were just two definitions I wanted to ask about, if I could. The first one is the definition of “life jacket” itself. I’m thinking of what we used to wear, at least in the air force when we were flying, and I know some vessels will have the same thing. We called it a “May West” or a “Mk 15”. It was a life preserver vest that you would wear with a handle that you could pull—it’s got a small carbon dioxide cylinder. If you find yourself in the water, once you get back up to the surface, pull the handle, it will inflate and keep you afloat. It’s a great device but, obviously, a low and compact form.

I’ve seen a lot of similar—maybe not the Mk 15, but similar sort of “May West” - type vests being worn by boaties out fishing. It’s great; it keeps it out of the way and gives you lots of room. It’s maybe not so suitable for kids because they may not be able to activate it themselves, but it’s a great little device for people to wear—particularly if they’re working, if they’re active, on the boat itself.

I guess my question to the member is, given that we are targeting this to small craft under 6 metres, and it’s targeted not at those who are swimming; it’s not if you are anchored up or you’re tied up and you’re fishing; it really seems to be targeted at an inadvertent, accidental overboard - type scenario It could be that the boat gets flipped by a wave; it could be that there is just an accident and someone falls over. Often, a lot of the time in these sudden-impact events, it can lead to perhaps a head injury as you fall, as you get struck by the dinghy overturning, or you hit your head as you fall, or just the shock of it. Therefore, is there a consideration, if this is the context in which we’re doing this, that it needs to be either one that will automatically inflate—it’s got an impact device so, when it contacts the water, it will inflate by itself—or just a pure, old-fashioned life jacket that we think of. Is there any consideration to the type of life jacket it needs to be?

Just to be clear, I don’t want this to become over-prescriptive and onerous on bodies. At some point, my argument would be, we actually have to trust people to make a decision. We have to let them use their judgment. We have to provide the tools. We have to have policy and regulations, in this case, that illustrate, “Hey, we need to make safe decisions. We need to be thinking about this. We can do better. The current death rate on the water isn’t acceptable. There are easy solutions out there.” But where is the line between that and saying, “Well, actually, if the risk is about a sudden event, unexpected event, potentially causing head injury, potentially the person can’t inflate a device if it doesn’t automatically inflate itself, is there a requirement?” I look at the rules as they are stated here—I’m in the clause 7 definitions, which is rule 91.2, “lifejacket”, paragraph (c)—and it needs to meet a New Zealand standard for buoyancy aids. It needs to be serviceable, it needs to be designed to be worn on the body, but there are those “inflate”, “auto-inflate”, “non-inflate” categories, and I just wonder if there is consideration to that.

If I can ask my second question now, just in the interests of time, Madam Chair—I’m trying to help us get through this tonight; I’m trying to be cooperative. I just note—because the member has probably considered this—that we’ve gone, ultimately, with the definition of “underway”, not “making way”. I know this might be getting a little technical: “underway” meaning it is not tied to something, and the definition set out is “(a) at anchor; or (b) made fast to the shore; or (c) aground”, versus “making way”, where there is an intentional propulsion when it’s driving. The question would be: we’re saying “underway”, I presume, because, if it’s tied up, we’re saying, “Hey, that’s OK. You don’t need to do it. If you are making way, we think you need to have it on.” But what is the risk profile difference between a small craft that is anchored out in the ocean but is still going up and down over all the waves, is somewhat at the mercy of the tide and the swell and the waves, versus a vessel that is under way but not making way—so it is just, again, floating in the middle of a lake?

Are we really saying there is a risk difference if they’re tied up but, for whatever reason, they’re not able to anchor, but actually they’re just sitting in the middle of a lake fishing? Have we considered “underway” versus “making way”, being the operative point? I don’t want to labour that one, but I just want to know if that’s been considered or feedback was given. I know it’s a little bit fiddly, but “underway” versus “making way” could be important, and, secondly, the type of inflation device. Thank you.

Committee of the whole House

Thank you. As the member Tim Costley points out, clause 7 describes the various types of life jackets, but here’s what Maritime New Zealand and Water Safety New Zealand said to us, because we did contemplate all the various types of life jackets. They said to us, “Please God, let us do that. Don’t you guys step in and decide what’s fit for purpose: time, shape, place, all that sort of stuff. That’s what we’re good at, and our education component is going to focus on that amongst other things.” We were strongly advised, and we took that advice, not to be descriptive and prescriptive in our own hands—first point.

Secondly, this is underpinned by the mantra that Water Safety has: yes, there will be life jackets that are fit for purpose for various scenarios—and they will educate and describe that—but any life jacket is better than no life jacket. That is the underpinning safety part to this. Let’s also put it in the context that people are already required to carry a life jacket. What we’re doing is saying, for recreational craft under six metres, it needs to move from “carry” to “wear”. The life jacket is already there. Substantively, it’s an educational component, which will progress from here, around what is a fit-for-purpose life jacket.

To the member’s second point, yes, we had some significant discussion around “making way” and “underway”, and we were encouraged by several things. First of all, “underway” is already understood in maritime legislation. Secondly, it’s what has international precedent; it’s what other legislation of an identical type uses. It uses “underway”, not “making way”, and that influenced our decision making, but we did give some due thought to exactly what the member is describing.

Committee of the whole House

Kia orana, Madam Chair. I thank the member the Hon Dr Shane Reti for his response, and I just also add to the comments made previously by my colleague Dr McLellan around the member’s engagement with the committee through this process.

I’d like to ask the member—just picking up from his response around the definition there in clause 7, around “underway”—he’s indicated that that is a definition that is well understood in maritime circles. That was certainly what the committee heard. Can I just check: is that definition, though, basically a lift and shift from other maritime legislation elsewhere on the book? It might be understood as defined there, but is that something that has, effectively, been transferred from a definition elsewhere in maritime legislation?

Committee of the whole House

Thank you, Madam Chair. My understanding is that that is the case—that is as it’s understood in other maritime legislation. It’s nothing that we’ve created as a nuance to ourselves.

Committee of the whole House

The conversation is going a bit further and faster than I’d expected, to get to something that’s at the end of clause 7—ahead of its time, I think, because there is a lot more before that to be talked about—but, since it has been brought up and the member the Hon Dr Shane Reti has had an attempt at addressing it, “underway” versus “making way” has caused me a great deal of concern, it has to be said. The reason for that is that the “underway” definition is, as the member has said, understood; however, it also has some issues around it.

When you are out in very deep water—and it goes to some other parts of the bill about “reasonable” tests, which I hope we can get to—anchoring might not always be the most appropriate way to stop a vessel. If you’re out in 90 metres of water and you want to, for some purpose, on a safe, calm day when the winds have gone from one direction to the other and there has been a complete die-off of the wind—it’s a great experience, actually, when you get 10 knots going from the east and then all of a sudden it goes 10 knots from the west and the whole place goes still. No one would think it was a dangerous moment when you were drift fishing, perhaps for a hāpuku or the more and more elusive tarakihi, to say that that moment is more dangerous than anchoring in, say, a high-knot current in a harbour entrance.

The Tauranga harbour has got a great deal of current flowing through it. If you’re anchored, being in the water is the dangerous part, for sure, but also it’s the relativity of the water. If there is two or three knots of current going under your boat and you’re anchored, it makes not a lot of sense that that’s considered more safe than on a flat, calm, beautiful, gorgeous day out in the Bay of Plenty when, relative to the water, you’re not moving at all. The reason that “making way” makes sense is that it also implies a sense of action, as in the operator of the vessel has taken a step to move the boat. “Underway” can mean a lot of things, but it all implies stopping. I think the Transport and Infrastructure Committee has had to struggle a bit with some “reasonable” tests about this, and I think “making way” would make a lot more sense logically, about the way humans and boats actually interact with the water. I hope the member would readdress my concerns in light of that contribution.

Going back to the part earlier in the clause talking about what life jackets are or are not—“personal flotation device” being replaced with the more commonly used term “lifejackets”. I understand it’s a novel term, believe it or not. We’ve gone from “life jacket” to “lifejacket”. That is something that I hope the member can talk to. There are a great deal of regulations being laid out here and standards of flotation. I’m assuming a kapok—the old life jackets for which, if anybody at home is listening, if they ever find a kapok, the advice is to chop it up and make sure no one can ever use it. That was considered a life jacket for a long time and is no longer, as it is unsafe. The inflatable life jackets, ones that you pull tag and it inflates and get something blow up around you to keep you at the surface. Well, if you’re near sharp surfaces, like rocks or something like that, is that a safe outcome if you end up being washed up against the shore and you get the barnacles or the blue mussels and green-lipped mussels cutting that open? It is a serious concern.

But my bigger concern is: what’s going to happen? Are we going to get a bunch of overzealous regulators putting ever-increasing restrictions on life jackets? It started out that you bought a compliant life jacket—that’s fine—but, oh no, an inflatable life jacket needs regular servicing, but all life jackets could need servicing, and all of a sudden we’re going to end up with a situation where people thought they were complying with this, I think, regulation-come-law, but, actually, they wouldn’t because the regulator has come up with the idea that, actually, we need to have all life jackets checked every five years. I think that would be an imposition that would be an unfortunate thing to happen. With this new, novel term of “lifejacket”—one word—is that a possibility? Are we giving the power to the regulators, as the member has said, to start ever-increasing the restrictions on what people consider lifejackets?

Committee of the whole House

Thank you. Look, I agree with the member Cameron Luxton. How I think of this around “making way” is that it requires some sort of energy, some sort of propulsion. “Drifting” does not. “Drifting” would not be “making way” potentially, but it would be “underway”. I would contest that drifting is fatality free. I’m not convinced that that is the case, nor was the Transport and Infrastructure Committee. I think that “lifejacket” as a term was encouraged by officials because that’s better understood. That’s why we’ve moved away from “personal flotation device”. It’s better understood by the public. Lifejackets, “fit for purpose”—we’ve talked about how that will be a large education component. The member talks about if that should strike rocks, and, of course, inflatable life jackets could be at risk of that, and there is certainly no suggestion that lifejackets require a warrant of fitness. Remember that the underpinning to lifejackets is that any life jacket is better than no life jacket.

Part 2 agreed to.

Schedule agreed to.

Committee of the whole House

Clauses 1 and 2

CHAIRPERSON (Maureen Pugh): Members, we come now to our final debate, which is the debate on clauses 1 and 2, “Title” and “Commencement”.