2 Preparing consultation material
This guidance for preparing discussion documents follows the same framework as the general RIA guidance in the previous section, but it is directed at eliciting good quality feedback from respondents through targeted questions in consultation material.
The quality of a discussion document will affect not just subsequent policy work and decision-making, but also the public's trust in officials to provide good policy advice based on reliable evidence. Consultation from a discussion document can and often will be the richest source of information and ideas available to officials in the course of policy development. They can start or challenge policy debates and, more importantly, they can provide officials with an opportunity to test analysis and to collect information to assess the likely impacts of alternative policy and regulatory options.
A discussion document should outline any (preliminary) conclusions from previous consultation exercises. If there has been substantial prior consultation (eg, workshops, international meetings etc.), then respondents should be advised and the outcomes summarised.
Using the RIA framework in structuring discussion documents should help to ensure that they provide a clear articulation of proposed regulatory changes to stakeholders, experts and the general public. Where there is potential for significant regulatory proposals, the Regulatory Impact Analysis Team (RIAT) must be provided with draft consultation material for comment before publication, but RIAT does not provide formal QA of discussion documents. This is the responsibility of agencies themselves.
TheRIA requirements apply to discussion documents that include options that may lead to legislative or regulatory changes, and where Cabinet approval is sought for the release of the document. However, unless options are being narrowed down for consultation, there is no formal Cabinet requirement for independent quality assurance of discussion documents. Where explicit decisions are being sought in order to narrow down the options presented in a discussion document, then a RIS is required for those decisions.
As set out above, the RIS that accompanies final policy proposals will be assessed against the RIA quality assurance criteria. The quality of the consultation via a discussion document will therefore weigh heavily in this assessment.
2.1 How are RISs and discussion documents different?
A RIS is the department's document, but a discussion document need not be - discussion documents can be issued in the name of Ministers. Because a discussion document may be issued by a Minister, it does not require an Agency Disclosure Statement (ADS). It will, however, be necessary to discuss in the document any gaps in information or any limitations on the scope of potential policy decisions. It may therefore be important to make explicit any matters on which submissions are specifically not invited
A RIS is not an advocacy document - but a discussion document can be. A RIS should be officials' best advice on impacts, presented dispassionately and without prejudice. A discussion document, on the other hand, can (and sometimes ought to) be more provocative, more leading.
If assertions are used to justify particular positions or analysis in a discussion document, it is important that respondents are explicitly invited to challenge the assumptions, analysis and conclusions supporting the options being advocated. These submissions and challenges should be received and considered in good faith. The major feedback from consultation, and the Agency's responses, should be summarised in the RIS that accompanies final Cabinet in-principle recommendations.
Depending on the intended audience, a discussion document can be more or less technical than a RIS. A RIS should be written for an informed, but non-expert decision-maker. By default, RIAT recommends that discussion documents be pitched at around the same level, unless the intended audience is:
- Broader, in which case respondents might need a more basic introduction to the policy question being discussed, or
- Narrower (say, a small population of experts), in which case respondents are likely to possess some degree of technical knowledge.
2.2 Questions that work
Questions should serve at least two functions: to invite challenge and to improve information. The best discussion documents keep questions as open as possible but are explicit about what is being sought.
Ideally, questions appear immediately after any assertion or hypothesis that can be challenged or augmented, and officials' analytical frameworks may be summarised with a flow chart linking key questions and decision points to the different stages in the policy process. For longer documents, it might be useful to also include a consolidated list of question (eg, as an appendix), so that it is clear which parts of the document the individual questions relate to.
The rest of this section is structured to follow a general RIA framework, as found in a RIS. Each section concludes with some recommended questions.
2.3 What is a good description of the status quo for a discussion document?
A good discussion document should include a description of the current arrangements and how they are likely to evolve without further regulatory change. In other words, document should outline a base case (or a ‘do-nothing' scenario) that says, “Suppose we took none of the regulatory options considered here: what would happen?”
Examples of possible questions for the status quo section:
- Do you agree with this characterisation of the status quo? If not, please provide evidence to support your views.
- How would you describe the status quo? What other factors should be considered?
2.4 Problem definitions in discussion documents
The problem definition needs to do more than identify the gap: it should discuss its size and importance. If uncertain about the reality or size of the problem, Agencies should use questions to test thinking:
- Do you agree with this characterisation of the problem? If not, why not?
- In your view, what are the problems with the current regulatory settings?
- How important are these problems?
- How important are they to the New Zealand public?
- What are the consequences of continuing to follow (or not follow) international practice in terms of New Zealand's public interests?
- What evidence should we examine to inform further analysis of the problems?
2.5 Objectives
The objectives should be clear and should have the potential to be observable; stating what evidence would suggest a particular objective or desired outcome had been achieved. Following a clear statement of the relevant objectives, a discussion document should ask:
- Have we identified the correct objectives?
- What objectives should we use to assess and rank options?
