(Bread, rice, potatoes and) Regulation – the staff of life, by Keith Manch

The following post was written by Keith Manch, the Chief Executive and Director of Maritime New Zealand. He has worked in the public sector since 1977 and brings extensive leadership experience in a number of policy and operational senior leadership positions in regulation, compliance and response.

Regulation is a necessary part of our lives, just like staple foods – and if you live in a country or community where you have good quality staple foods its most likely that regulation has played a part in that.

Regulation is all around us – take a simple ‘street scene’ like the one included in the Government Regulatory Practice Initiative (G-REG) Regulatory Compliance Core Knowledge qualification, that many more than 2000 regulators across New Zealand have enrolled in or completed so far. Believe it or not there are more than 50 individual examples of regulatory standards in such a scene. The obvious examples easily come to mind; the cars need registration plates and WOFs, the buildings must be built to withstand earthquakes, the traffic lights must be set to a certain time sequence . There are also cafes in the Old Bank Shopping Arcade. I am pretty sure they all have bread products and some probably sell food including rice and potatoes as well. Food quality and safety is subject to quite rigorous regulation in New Zealand.

The other pervasive thing about regulation is that everyone has a view of how regulators can do their job (better, more efficiently, more effectively… put your adjective here).

The ‘regulation is red tape’ brigade will advise that there is too much regulation and it is stifling innovation; the ‘light-handed’ brigade will advocate that ‘education’ is the answer; the ‘heavy-handed’ brigade will assert that ‘enforcement’ is the answer. The thing is, they can all be right – some of the time.

The people and businesses being regulated might think they are the customers of the regulator – but they are not. If a regulator starts thinking that they are there to serve the people they are regulating, on the basis that the customer is always right, then the regulator starts its work with one hand tied behind its back and the other with fractured fingers that can’t grasp anything significant.

On the contrary, if the regulator fails to understand that even those people and businesses being regulated must be treated fairly, with respect and engaged with in a timely fashion, free hands and strong fingers won’t help it to do its job effectively beyond first contact with the regulated parties.

Regulated parties will ask for consistency in the way that regulators deal with them – this is absolutely fair enough. For a regulator, being consistent means making sure that all of the relevant factors are weighed up according to the same criteria (typical factors are level of harm caused or likely, attitude to compliance, public interest). In weighing up such factors, things that look similar on the face of it can actually be quite different. Consistency is sometimes in the eye of the beholder.

Certainty is another desired quality of regulation – regulated parties often assert that they simply want to know what they have to do (whether they like it or not), and what will happen if they don’t. To a regulator working with performance based regulation the answer to the first question will be – ‘don’t mislead your customer’; ‘operate safely’; ‘make your food safe’ – or similar, depending on the area of regulation concerned. The regulated party may well consider this doesn’t provide enough certainty.

To a regulator working with prescriptive regulation the answer will be – do exactly what the law/regulation/rule says (although there may be options for exemptions – that’s another story on its own). The regulated party may well consider this is a nonsense because it doesn’t take account of their particular circumstances (they might be right – see the comment above about potential exemptions).

In respect to the ‘what will happen if I don’t?’ question regulators will say – it depends: mostly because the response of a regulator typically depends on the facts of the case and the significance of the ‘problem’ the regulated party has created; and also because pre-determining specific regulatory responses isn’t appropriate from an administrative law perspective.

Probably no-one, or at least not everyone, will be happy with much of this. And regulators don’t just make this stuff up, its driven by the laws, conventions and standards that they have to follow.

It’s this kind of context that makes being a regulator such an interesting thing to do – if it wasn’t already interesting enough doing work that is genuinely focussed on preventing harm (whether that’s social, economic, or health and safety related) and improving outcomes for the people and communities who are actually the customers of the regulation.

So, next time you are

  • browsing advertisements (that are regulated to ensure there is accurate consumer information);
  • on the internet (regulated to ensure that there is no objectionable material being shared);
  • to determine what food to order (regulated so it’s safe);
  • for delivery to your house by a vehicle (regulated to ensure safety);
  • with a student driver (licensed to ensure safety and earning the regulated minimum wage)

take a moment to reflect on the challenges of getting all of that right, and the task that regulators have in doing so.

The issues touched on in this article are just some of those that are common sources of debate between policy makers, regulators, regulated parties and the beneficiaries of regulation as regulations are developed and improved – to make it possible for you to, amongst other things, get your dinner.

Keep an eye out for further articles in the “Regulation – staff of life” series for practical insights into common regulatory issues.

By necessity the issues discussed in this bite sized article have been addressed at a very high level. Got any comments or questions? Feel free to raise them by commenting on this article.

Keith Manch April 2019

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