1  When do the RIA requirements apply?

The Regulatory Impact Analysis requirements apply to any policy initiative or review that:

• considers options that would involve creating, amending or repealing either primary legislation (via a government Bill or government support for a member's Bill), or delegated legislation that is a regulation for the purposes of the Regulations (Disallowance) Act 1989, and
• is expected to result in a paper being submitted to Cabinet[1].

This includes papers submitted to Cabinet seeking:

• the release of a discussion document that contains options that may lead to legislative or regulatory change
• “in principle” policy decisions and intermediate policy decisions, particularly those where policy options are narrowed down (eg, limiting options for further work/consideration)
• decisions to introduce legislative or regulatory changes that are merely enabling and the substantive decisions as to whether and what sort of intervention will be made later, and
• to inform Cabinet of a Minister's intention to make regulations under an enabling power given to that Minister in an Act.

Policy proposals with regulatory implications are normally submitted to Cabinet Committees for policy approval before legislation or regulations are drafted. In rare circumstances, the policy proposal and draft regulations may be submitted together. In these cases, the usual procedure is for the paper to be submitted to the relevant Cabinet Committee, rather than directly to Cabinet Legislation Committee (LEG).

1.1 Exemptions

The value of completing even a modest Regulatory Impact Statement (RIS) is likely to be limited in some circumstances, such as those where the potential proposals would result in little or no change to the status quo legislative position or would have no or very small impacts outside of government. Consequently, the RIA requirements do not apply to those aspects of proposals that:

• are technical “revisions” or consolidations that substantially re-enact the current law in order to improve legislative clarity or navigability (including the fixing of errors, the clarification of the existing legislative intent, and the reconciliation of inconsistencies)
• are suitable for inclusion in a Statutes Amendment Bill (if not already covered by the first bullet point)
• would repeal or remove redundant legislative provisions
• provide solely for the commencement of existing legislation or legislative provisions
• need to be authorised in an Appropriation Bill, an Imprest Supply Bill, or a Subordinate Legislation Confirmation and Validation Bill
• implement Deeds of Settlement for Treaty of Waitangi claims, other than those that would amend or affect existing regulatory arrangements
• are essential (the minimum necessary) in order to comply with existing international obligations that are binding on New Zealand, or
• have no or only minor impacts on businesses, individuals or not-for-profit entities (such as might be the case for certain changes to the internal administrative or governance arrangements of the New Zealand government, like the transfer of responsibilities, staff or assets between government agencies).

1.2 Discussion documents

The RIA requirements apply to discussion documents that include consideration of options with potential regulatory implications. It is usually most effective to incorporate the RIA elements within the body of the discussion document. This involves:

• Structuring the document around the RIA framework: explaining the current situation and the nature and size of the problem; setting out the policy objectives; identifying the range of feasible options, and providing preliminary analysis of the costs, benefits and risks of these options, and an indication as to how they will be implemented. The document may indicate a preferred option.
• Including suitable questions for stakeholders, that will prompt respondents to confirm and challenge the analysis, provide feedback on the assumptions, estimated magnitude of impacts etc and suggest additional options.

Other features of good consultation are summarised in the section on Consultation, and should be incorporated into discussion documents. For example, the purpose and scope of consultation should be made clear (explaining what is “on the table” and the nature of any decisions that have already been taken), and any assumptions made explicit.

1.3 Supplementary Order Papers

From time to time, policy changes may be made to draft legislation that are outside the scope of the original RIS. When these changes are sought through a Supplementary Order Paper (SOP) that is submitted to Cabinet, the original RIS must be updated (or a new RIS prepared) to indicate how the changes affect the impact analysis (eg, how they alter the nature and/or magnitude of the impacts).

1.4 International treaties

In some cases, there may be legislative or regulatory implications that arise as a result of the completion and implementation of an international treaty. The RIA requirements apply to any proposals that may lead to a paper being submitted to Cabinet, which, in the case of international treaties, may include papers seeking Cabinet approval to enter into negotiations (ie, a negotiating mandate), to sign the final text of a treaty, or for a treaty to enter into force for New Zealand.

In accordance with the Cabinet Manual and Standing Orders 388-391, all multilateral treaties or “major bilateral treaties of particular significance” concluded by New Zealand require the preparation of a National Interest Analysis (NIA). When preparing a NIA for a treaty with regulatory impacts, the Ministry of Foreign Affairs (MFAT) adheres to NIA drafting guidelines produced in collaboration with the RIAT. Those guidelines require that, for treaties with regulatory impacts, the NIA also includes all the requirements otherwise considered in a RIS (becoming an “extended NIA”). A separate, standalone RIS is therefore not required when an extended NIA is prepared.

The International Treaty Making booklet, which includes the NIA drafting instructions, is available online. To get access to this booklet or for any questions regarding international treaties and arrangements, please contact the Treaty Officer in the Legal Division of the Ministry of Foreign Affairs and Trade (treatyofficer@mfat.govt.nz).