Good regulatory decisions in the making
Safe Seas Clean Seas Issue 51, December 2016
Keith’s opening address at the Government Regulatory Practice (G-Reg) conference meetings in Auckland and Wellington outlined what good decision-making should look like in individual compliance cases, across industries and sectors, and across regulatory systems.
G-Reg was established last year with the aim of further professionalising the regulatory community in New Zealand. A large number of the country’s central and local government agencies are regulators; there to support, encourage and require compliance with the laws and regulations that address safety, security, environmental and economic issues for the well-being of people and communities.
Keith told the large audiences of regulators that decision- makers need to be clearly identified and have powers properly delegated to them under the laws and regulations they are dealing with.
Even while considering advice from a wide range of sources, it is individuals with the final responsibility that need to make the actual decision about whether to prosecute or take other compliance action - “all the while exercising objectivity and discretion”.
These decision-makers are informed by the robust work of investigators and other regulatory staff who weave together the picture, or tapestry, of the facts, evidence and testimony involved in a compliance incident.
Keith says an example in the maritime sector is the work by personnel from across Maritime NZ to draw together the information and considerations needed in regard to the Easy Rider case a few years ago - when eight people died on a muttonbirding trip near Steward Island in 2012, after the overloaded vessel capsized. Maritime NZ took a prosecution against the sole director of the company that owned the vessel because of serious safety transgressions. Such cases reinforce understanding of the obligations of those involved in commercial activites to ensure the safety of their operations.
Keith told the conference that good decision-making is enabled by robust regulatory frameworks and a professional regulatory workforce. He shared the example of Maritime NZ’s regulatory framework which includes a group process, in the form of a Compliance Intervention Panel, which weighs the merits of each case, and considers options for interventions - from education through to improvement notices, or prosecution under the Health and Safety at Work Act, or the Maritime Transport Act.
“This helps create the conditions in which good regulatory decision making can occur,” says Keith. “But the delegated decision maker in the organisation needs to make the final decision.”
G-Reg’s focus on regulatory practice and capability initiatives is intended to improve leadership, and the culture and workforce capability in the sector. Chief executives have established a steering group, comprising senior officials from regulatory agencies and local government, to oversee the initiative.
A common qualifications framework is being developed, with the first NZ Certificate in Regulatory Compliance already being undertaken by regulatory staff across multiple Government departments and agencies, including the Ministry of Business, Innovation and Employment, which houses the secretariat for G-Reg. The five new qualifications, which will be at levels 3-6 on the New Zealand Qualifications Framework, range from core knowledge to specialist investigations practice, and aim to help embed regulatory compliance work as a profession in New Zealand.
Other speakers at the conference covered subjects such as creating the conditions for good regulatory decision making, and a case study on the 2014 court case in response to the grounding of the bulk carrier MV Triview off the coast of New Plymouth. The successful prosecution created new case law under section 12 of the Resource Management Act, and helped change shipping navigation and safety attitudes and practices in New Zealand.
This case study also demonstrates a successful multi- agency approach involving innovative evidence gathering and presentation methods, including a partnership approach with local iwi, Keith says.
“This was an example of good regulatory decision- making, which requires discretion and a focus on overall outcomes, rather than being framed by specific or narrowly defined perspectives.
“The development of a more formalised regulatory profession in New Zealand will under-pin good practice across the regulatory sector, and consistent, high-quality decision-making.”