Adventure Activities Regulation 2011

Freediving NZ Review

Introduction: The Health and Safety (adventure activities) Act 2011 was aimed to address safety gaps identified in the Adventure Tourism Review. These regulations require adventure activity operators in New Zealand to be safety audited by 1 December 2014. AIDA NZ has reviewed the regulations in relation to competitive freediving in New Zealand to inform its members of their legal requirements under the act.
This review has been completed after consulting an adviser at Worksafe NZ. It must be considered a guide to AIDA NZ members and not the final word.

Scope: The scope of the AIDA NZ review was considering competitive freediving activities excluding spearfishing and recreational snorkelling that is conducted by:

  • clubs or associations of clubs
  • individuals or businesses providing activities outside of clubs or
  • individuals or businesses providing activities for a club or association or clubs

Where the activity was provided in:

  • a pool for static or dynamic training, or
  •  the open sea or lakes for depth training.

Resources: Worksafe New Zealand provides the following resources available from their Worksafe website to allow easier interpretation of the act:

Discussion: The Operator decision tree above provides the easiest means of discerning our legal requirements. This tree is also provided in the Guidance for operators. This guidance for operators is referred to below by topic numbers. However this is a guide and only the regulations can provide the legally binding definitions.

Sports clubs or associations: In the case of activities being provided by one of the freediving clubs or AIDA NZ as an association of clubs, the regulations are clear that an audit is not required (topic 21). Even if it is provided in what is considered ‘dangerous waters’ (topic 12).

Individuals or businesses providing activities in a pool outside a club: Individuals who provide an adventure activity in return for payment (topic 8) in a pool are not required to be audited as a pool is not considered ‘dangerous waters’ (topic 12). This is also interpreted for Scuba diving in topic 16.

Individuals or businesses providing activities outside of a club, in the open ocean or lake: In the case of freediving in lakes or open ocean, an audit is required where the activity is provided in ‘dangerous waters’ (topic 12). The guide considers dangerous waters to be:

  • more than 100m from shore excluding an island, and
  • without supervision with a boat that can rescue all participants.

This is just a guide and conducting freediving to significant depth within 100m of shore would still be considered dangerous waters. Individual cases would have to be reviewed by Worksafe to determine what is considered significant depth. Worksafe is developing an assessment guide for breath hold which will better define the level of risk. Key to assessing this is the wording of regulation 4(1)(v) that an Adventure activity “….is designed to deliberately expose participants to a risk of serious harm that must be managed by the provider…” Based on this anything past 10m could involve serious risk if not managed correctly.

Individuals or businesses providing expertise to a club: This is where the regulations start to grey. The key to this is who is taking ultimate responsibility for the safety of the participants? If it is a club activity under the clubs safety plan and the club has accepted responsibility for the welfare of participants and the individual is just providing expertise, then an audit is not required. If this is the case a formal acknowledgement of this responsibility should be recorded between the club and individual as part of the agreement. A simple email will suffice. If the safety responsibility is with the individual or business providing the expertise than an audit is required.

Conclusion: Generally the clubs and members of AIDA NZ are exempt from the requirement for an audit. Specifically in the case of any freediving activity conducted by club or AIDA NZ where the club is taking responsibility for the safety of participants, an audit is not required. This is also the case for any freediving activity conducted by anyone in a pool or other waters not considered dangerous.

Paul Smillie
March 2015