NZTA has been in the news lately, talking about “getting tough” on compliance. While the news reports have focussed on certifying engineers, we are also seeing an increase in other compliance-related proposals from NZTA, particularly in relation to Transport (Goods) Service Licences, or TSLs.

NZTA has the power to revoke a TSL if it is satisfied that the TSL-holder, or someone in control of the transport service operated by the TSL-holder, is not “fit and proper”. NZTA must give advance notice of a proposal to revoke, and give the recipient at least 21 days to respond to the proposal. NZTA must let the recipient know anything that it will be talking into account against the recipient of the proposal, and give the recipient an opportunity to comment.

Revocation of a TSL will usually have extreme consequences for an operator. Without a TSL, an operator must stop operating immediately. The fines for continuing to operate after revocation are significant.

What does it mean to be a “fit and proper” person?

The term “fit and proper” is a relatively common phrase in New Zealand legislation. The Land Transport Act 1998 sets out in more detail the matters that NZTA can take into account when considering whether an individual is “fit and proper”. The main consideration is public safety, but NZTA can also take into account any complaints received, an operator’s infringement and conviction history, and any other matters it sees fit in the public interest.

What do I do if I receive a proposal?

If you receive a proposal to revoke, don’t ignore it. If you don’t take any steps, the proposal will become a reality. Make sure that you:

• carefully read the proposal and any documents annexed to it so that you understand the basis for the proposal;
• remember that the proposal is just one side of the story, and don’t be afraid to ask for clarification or further details;
• seek legal advice as soon as possible – don’t leave things to the last minute.

Help! My TSL has been revoked!

If worse comes to worst and your TSL is revoked, you must stop operating from the date and time that the decision comes into effect. If you haven’t already done so, it is imperative that you take legal advice at this point. Decisions to revoke can be appealed to the District Court, but any appeal does not put the decision on hold while it winds its way through the Court. There are strict timeframes for appeals that must be complied with.

The only way to ensure you are able to keep operating while appealing a decision is to ask the High Court to judicially review the NZTA’s decision, and grant an interim injunction allowing you to operate until that decision has been made.

How do I avoid getting to this point?

While sometimes proposals to revoke come “out of the blue”, usually they will not be a surprise and will follow an unsatisfactory audit outcome or a particularly poor ORS rating. As with most things, prevention is the best cure. Ensuring robust maintenance and compliance regimes in your business, and seeking assistance from the industry experts at NRC will always help.

Questions? Need more information?

Fortune Manning advises the transport industry on all aspects of the law, including licensing issues, legislative changes, privacy and employment matters. If you would like to find out more about the issues discussed above, or any other legal issue, give the team at Fortune Manning a call on 0800 4FM LAW (0800 436 529).