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Consultation

25. Information on consultation that occurred in the lead-up to Cabinet's decision to introduce the present Regulatory Standards Bill can be found in our 2011 RIS.

Treasury discussion document with indicative legislation

26. In mid August 2012, Treasury circulated a discussion document, together with indicative legislative provisions, for a targeted consultation process. It sought early views on the merits and workability of a set of possible provisions for a revised Bill, to help inform Treasury advice. Feedback was sought from:

  • key regulatory or legal contacts in departments and in the Office of the Clerk of the House of Representatives;
  • a variety of external public law experts, including Law Society committees and lawyers from several major law firms,
  • former Regulatory Responsibility Taskforce members, and
  • several bodies representing business interests that have previously shown a strong interest in the Regulatory Standards Bill.

27. Treasury also sought the cooperation of a few departments to attempt test disclosures for a few of their recent Bills or disallowable instruments, and give us feedback on any problems they identified and on the level of effort required.

28. Feedback provided by officials and public law experts elicited a lot of useful comments on the form or scope of suggested provisions. These have influenced the selection, and will inform any drafting, of the legislative provisions suggested. On the whole, the feedback suggested to us that a Bill requiring a set of core disclosures for government Bills and significant delegated legislation is workable, and should impose only small additional compliance costs.

29. Among the public law experts, there was also a general consensus that a Bill along these lines had the potential to establish a useful impact, and was worth progressing. By contrast, former Taskforce members and business bodies made few comments on particular disclosures but, in general, thought the proposal was far too weak and indicated their continued preference for the current Bill.

30. Interestingly, the matters most likely to attract suggestions from external parties for greater disclosure (the LAC guidelines, NZ's international obligations, rights and interests affirmed by the Treaty of Waitangi, and regulatory takings) were basically of the same type – that is, existing quality assurance expectations lacking a specific process or product (though in the case of regulatory takings, not even an existing expectation). As noted in Annex 4, we believe that this type of matter does not make a great disclosure requirement because their scope is broad and often not widely understood, which creates a high risk of either idiosyncratic interpretations or carefully worded, limited responses designed solely to minimise reputational risk.

31. Nonetheless, since they are clearly seen as important, we have made a margin call to include basic disclosures relating to the first two matters – consistency with NZ's international obligations and with the principles of the Treaty of Waitangi – and a disclosure relating to material economic losses, which would cover regulatory takings. But we still reject a disclosure relating to consistency with the LAC guidelines because we think the advisory nature and extremely wide scope of the LAC guidelines means there is no prospect of receiving either a meaningful Yes/No response, or a meaningful description of the process gone through to assess consistency. If a specific quality assurance process or product were to be agreed and introduced by a future government for any of these matters, the likelihood of providing more useful disclosures would be greatly increased.

Formal departmental consultation

32. Formal departmental feedback was sought on a draft Cabinet paper and an earlier version of this RIS. Departments did not identify any substantive concerns with the proposed measures, which contrasts with their earlier comments on the Taskforce's Bill. However, a number of departments noted that the proposals would add to pressure on their resources and, in the absence of additional funding, it will either take departments more time to prepare regulatory advice or require greater prioritisation of their regulatory work.

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