Adventure Tourism Regulations: "She'll be right" – will she?
Previously published in Inside Tourism, Issue 857, 3 November 2011
The Adventure Activities regulations have been gazetted. They require adventure tourism and outdoor education operators, who provide activities that are designed to deliberately expose participants to a risk of serious harm, to undergo a safety audit and be registered. From 1 November 2014, it will be an offence under section 50 Health and Safety in Employment Act 1992 to provide an adventure activity unless the operator is registered as an "adventure activity operator". Under this section, depending on the type of offence, fines can be up to $250,000.
The final form of the regulations has changed from the draft regulations that were released for consultation. There is a narrower definition, which means that fewer activities are covered. But some activities that were not in the illustrative schedule in the draft are now caught, such as high altitude trekking.
There will be a three year transition period before the regulations come into force. However, from 1 November 2011, adventure activity operators must notify (by email, fax, post or by the Department's website) the Department of Labour about their operation. The deadline for this notification is 30 April 2011.
What activities are covered?
The schedule to the regulations contains a list of examples of adventure activities. This includes quad biking, mountaineering, kayaking, bridge swinging etc. However appearing on this list does not mean that the activity is automatically covered. There are a number of factors as to whether the activity is an adventure activity under the regulations.
The regulations apply to land or water-based activities that are designed to deliberately expose the participant to a risk of serious harm. They must be provided in return for payment, involve the participant in being guided, taught how or assisted to participate in the activity and their main purpose must be recreational or educational. They are activities where a failure of the provider's management systems (such as operational procedures or failure to provide reliable equipment) is likely to result in serious harm or where the participant is deliberately exposed to dangerous waters or terrain.
What activities are not covered?
Some adventure activities are already covered by other regulations. It is proposed that hang gliding, sky diving and paragliding will be covered by the new Adventure Aviation Rule (Part 115), which will be regulated by the Civil Aviation Authority. The Maritime Transport Act will continue to apply to many boating activities. Abseiling, rappelling or rock climbing are exempt when they are indoor activities, as are ice skating on a human made surface, or a snow activity that is done indoors or in a patrolled ski area. Amusement devices (such as fairground rides etc) will continue to be controlled by the Machinery Act 1950. And passenger ropeways (for example, ski lifts and cable cars) are also excluded, having their own governing regulations.
Significantly, the definition of adventure activity excludes sports clubs, associations representing sports or recreation clubs and activities provided by schools and universities etc. And by tying the definition to offering the activity for payment, free schemes are not caught by the need for registration and audits. However this does not mean that normal health and safety regulations continue to apply and all organisations would be well advised to review these.
Safety audits
By November 2014 all operators will need to be registered and audited. From May 2012, some of the higher risk operators may be asked to obtain an audit and be registered before then. On receipt of the notice, the operator will have three months in which to initiate the audit and they must them pass the audit and become registered within six months of the date on which the audit begins. A change from the draft regulations is that the Department can recognise external safety audits passed before 31 December 2012. Operators of Department of Conservation concessions who have to obtain a safety audit for their concession will not therefore have to obtain a second safety audit during this time.
What now?
In February 2012, the Department of Labour is expecting to release a guidance document that will clarify who and what may be caught by the regulations. If you aren't sure whether you are affected by these regulations, the Department is encouraging operators to notify it anyway. The late release of the guidance document (three months into a six month notification period) may perhaps cause some operators to hesitate about notification. The first step is to identify if you think you may be covered by the regulations.
For more information, contact Ben Atkins.
Last updated: November 2011
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