Functional definitions
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Susy Frankel and John Yeabsley “Introduction” in Susy Frankel Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis 2011). Regulation takes many forms. Regulation includes legislation, legal rules, codes of practice (both formal and informal), and a combination of these. As such, it includes government regulation, regional and local government regulation and self-regulation. Any regulation must comply with domestic laws and international treaty commitments. Those commitments include multilateral agreements and free trade agreements. Regulation is an all pervasive part of any modern society. Its design and operation, therefore, is influential in the kind of lives citizens live, and their rights and reasonable expectations as consumers, including their safety. Regulation is also a key element in shaping the framework within which commercial activity takes place. The regulatory structure, therefore, is a vital factor in the well-being of all New Zealanders and consequently should be logical and effective.
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Ryan Malone and Tim Miller Regulations Review Committee Digest (3rd ed, New Zealand Centre for Public Law, Wellington, 2009) at 64. This Digest contains two definitions, the definition of regulations and the definition of deemed regulations. It should be noted that the definition of regulations in the Regulations (Disallowance) Act above includes deemed regulations. - Regulations are: “drafted by the PCO. Approved by Cabinet. Made by the Governor-General in Executive Council. Notified in the Gazette. Published in the Statutory Regulations (SR) series.” - By contrast, deemed regulations are: “not drafted by the PCO but are instead the responsibility of the organisation making them. Generally made by a single authority such as a Minister or other official. Not usually subject to Cabinet approval or submitted to the Governor-General in Executive Council. Infrequently published in the Statutory Regulations series.”
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Ministry of Economic Development “NZ Regulatory System Overview” (2010)
. The Ministry website says: “[r]egulation for products and services are structured to meet performance requirements and around the risk they pose to human health and safety or environmental impacts. Regulations are typically performance based as opposed to being prescriptive and tend to specify the expectation of how a product should perform”. Under the “Definitions” page on the website the Ministry further states that: “Regulations are laws made by the Governor-General, Ministers of the Crown, and certain other bodies under powers conferred by an Act of Parliament. Regulations generally deal with matters of detail or administration, or matters that are subject to frequent change. Regulations may also be known as Orders in Council, rules, notices, determinations, proclamations, or warrants.” -
David L Weimer and Aidan R Vining Policy Analysis: Concepts and Practice (3rd ed, Prentice Hall, Upper Saddle River (New Jersey), 1999) at 225-236: specific regulation can include: “Price regulations through rate of return regulation, price caps or price controls; direct regulation of quantity and quality through performance-based (such as the current New Zealand Building Code) or technology-specific standards (such as the prescriptive building code replaced in 1992); direct information provision such as labelling requirements, disclosure and standards, such as energy efficiency labelling requirements; and indirect information provision through the licensing and certification of professions.” “Guide to Regulation in New Zealand”, the Regulations Review Committee adopts the definition of regulations from the Regulations (Disallowance) Act 1989, s 2. This definition means: “(a) regulations, rules or bylaws made under an Act by the Governor-General in Council or by a Minister of the Crown: (b) an Order in Council, Proclamation, notice, Warrant, or instrument made under an enactment that varies or extends the scope or provisions of an enactment: (c) an Order in Council that brings into force, repeals, or suspends an enactment: (d) regulations, rules, or an instrument made under an Imperial Act or the Royal prerogative and having the force of law in New Zealand: (e) an instrument that is a regulation or that is required to be treated as a regulation for the purposes of the Regulations Act 1936 or Acts and Regulations Publication Act 1989 or this Act: (f) an instrument that revokes regulations, rules, bylaws, an Order in Council, a Proclamation, a notice, a Warrant, or an instrument, referred to in paragraphs (a) to (e).”
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Australian National Audit Office “Administering Regulation: Better Practice Guide” (Canberra, Australian National Audit Office, March 2007). “What is regulation? Regulation is a term covering a diverse set of instruments used by government to influence or control the way people and businesses behave in order to achieve economic, social or environmental policy objectives. Regulation includes any laws or other rules that govern the conduct of people or businesses. It is not limited to primary or delegated legislation; it also includes quasi-regulation (such as codes of conduct or advisory instruments) where there is a reasonable expectation by government of compliance. Examples of regulatory functions that may be used to achieve policy objectives include: - Allocation and protection of rights - Certification or licensing of a product, service, person or business - Registration of professionals and non-professionals - Setting and/or imposing industry standards - Collection of taxes, fees or other revenue” The above was based on the Office of Best Practice Regulation’s definition of regulation, which was used by the Australian Government Taskforce on Reducing Regulatory Burdens on Business (2006).
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HM Government Impact Assessment Guidance: When to do an Impact Assessment (Crown Copyright, London, 2011) at 19: regulation is defined as “A rule with which failure to comply would result in coming into conflict with the law or being ineligible for funding and other applied for schemes. This includes: EU Regulations; Acts of Parliament; Statutory Instruments; rules, orders, schemes, regulations etc. made under statutory powers by Ministers or agencies; licences and permits under Government authority; codes of practice with statutory force; guidance with statutory force; codes of practice, guidance, self-regulation, partnership agreements with Government backing; approved codes of practice; by-laws made by Government.”
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Petra Butler “Rights and Regulations” in Susy Frankel Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis2011). “Regulation” for the purposes of this chapter is understood as primary and secondary legislation[2] and the lack thereof.[3] Derek Gill in his chapter “Regulatory Management in New Zealand: What, Why and How?” describes the policy objectives of regulatory reform as including:[4] Both “better quality” regulation through more effective alignment of “regulatory means” to achieve policy goals, as well a “regulatory relief” through administrative simplification and deregulation to reduce the perceived burden of regulation.
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Dean Knight and Rayner Thwaites Review and Appeal of Regulatory Decisions: the tension between Supervision and Performance chapter in Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis 2011) We approach the definition of regulatory decision by first defining the field, regulation, and then providing illustrative examples of decisions made in that context. Regulation has both narrow and broad connotations.[9] Regulation has been defined broadly as the “legal rules which seek to steer the behaviour of mainly private citizens and companies”,[10] or the implementation or enforcement of “prescriptive controls over particular kinds of social and economic activities, if necessary through the application of sanctions”.[11] We have adopted a similarly broad conception of regulation,[12] rather than focusing solely on rule-making or application in a particular regulatory sphere, such as economic or commercial regulation.[13] Similarly, our focus is not confined to the application of rules by regulators, but also includes rule-making where the regulator has been delegated or has assumed that function. The performance-supervision dynamic is also engaged in the promulgation of regimes of rules by regulators, albeit that it may operate slightly differently in relation to the review of a law-making function. This wide brief means the examination of the performance-supervision relationship needs to recognise the broad range of decisions being made and reviewed. This may include the promulgation by a regulator of specific rules or codes which regulate social or economic activity, or specific decisions made by a regulator approving or declining such activities. Some illustrative examples include decisions such as: • authorisation of restrictive trade practices or clearance of mergers;[14] • promulgation of price controls; • approval of the use or release of genetically-modified organisms; • development of plans regulating land-use and other activities; • consenting of developments, including assessment against established codes; • promulgation of bylaws regulating land-use and other activities; • development and application of rules restricting land-ownership or overseas investment;[15] • development of broadcasting standards and application of those standards to complaints; • licensing of primary industries and any associated domestic quota allocation;[16] • development, and application, of immigration entry criteria; • licensing of insalubrious trades, such as the sale of liquor and gambling; • promulgation of entry requirements and standards for certain professions and subsequent enforcement of requirements through disciplinary proceedings. The list makes evident the diverse nature of regulatory decisions.
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Derek Gill “Regulatory Management in New Zealand : What, How and Why?” in Susy Frankel Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis2011). Regulation in this context includes: • primary legislation through statutes;and • secondary legislation through statutory regulations by Ministers or public agencies under the authority of statute or by Orders in Council;and • tertiary regulations, which include a wide range of standards and guidelines issued by public agencies or self-regulatory bodies.
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Derek Gill “Regulatory Management in New Zealand : What, How and Why?” in Susy Frankel Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis2011). Regulatory management: …[c]ould be described as a set of rules and constraints (formal and informal) that structure the processes of proposing, developing, implementing, administering, enforcing and evaluating the performance of legislation (primary, secondary and tertiary). That “structuring”will include the allocation of powers, functions and duties of the different participants. It will include both centrally determined and generic rules and processes, and decentralised and tailored rules and processes.
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Derek Gill “Regulatory Management in New Zealand : What, How and Why?” in Susy Frankel Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand (LexisNexis2011). The vast bulk of regulation takes the form of specific prohibitions and privileges. Specific regulation according to Weiner and Vining can include:[15] •price regulations through rate of return regulation, price caps or price controls; •direct regulation of quantity and quality through performance-based (such as the current New Zealand building code) or technology-specific standards (such as the prescriptive building code replaced in 1992); •direct information provision such as labelling requirements, disclosure and standards, such as energy efficiency labelling requirements;and ·indirect information provision through the licensing and certification of professions. An important difference between specific regulations and fiscal interventions such as grants, subsidies and specific taxes is how they might change behaviour. Whereas other interventions, such as transfers, involve the state in an enabling role, regulation involves the coercive power of the state in reducing choices by citizens and businesses. The importance of this will become apparent in the discussion of the special characteristics of regulation at [7.7] on the public policy rationale for regulatory management.
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James Zuccollo, Mike Hensen and John Yeabsley “Weathertight Buildings and Performance-based Regulation: What Lessons can be Drawn from a Complicated and Evolving Situation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Regulations define processes and standards, or roles and responsibilities, in the exchange of goods and services. They narrow the range of possibilities of what can be exchanged, how it can be exchanged and what buyers, sellers and potentially other stakeholders can expect from that exchange.[43]
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Dean Knight and Rayner Thwaites Administrative Law through a Regulatory Lens: situating judicial adjudication within a wider accountability framework chapter in Recalibrating Behaviour: Smarter Regulation in a Global World” in Recalibrating Behaviour: Smarter Regulation in a Global World (Lexis Nexis 2013). Regulation is first and foremost about the achievement of social goals; for example, the efficient and affordable provision of electricity or of telecommunications,[4] the optimum level and type of foreign direct investment,[5] or a fit-for-purpose consumer credit regime.[6]
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Derek Gill “Applying the Logic of Regulatory Management to Regulatory Management in New Zealand” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). [8] The term "regulation" will be used in this chapter in the economists' sense of an economic instrument using primary, secondary and tertiary rule-making. This is consistent with the instrumental definition used by the Treasury: Regulatory Impact Analysis Handbook (The Treasury, 2009), available at <www.treasury.govt.nz/publications/guidance/regulatory/impactanalysis/ria-handbk-nov09.pdf>. For a discussion of alternative definitions of regulation see David Levi-Faur "Jerusalem Papers on Regulation & Governance" (JPRG, Working Paper No 1, Februrary 2010) at 4–9, available at <www.regulation.huji.ac.il/dp.php>.
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Alec Mladenovic “Networked Industries: Electricity and Telecommunications” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). [1] More specifically, the chapter mainly considers regulation that is purported as being primarily concerned with promoting economic efficiency and that typically falls within the ambit of competition policy, law and regulation (thus, regulations dealing with, for instance, safety, measurement, and work standards are not covered in this paper). That being said, it is recognised that economic regulation may have other objectives unrelated to efficiency, such as addressing equity concerns by reallocating wealth distributions.