Regulation in other jurisdictions: Australia and
New Zealand
Research supporting the VCEC inquiry into Victoria’s regulatory
framework
1
Introduction
How regulation, and initiatives to improve regulation, are approached in
Australia and New Zealand varies and the Commission is aware of the value that
experiences in other jurisdictions can provide. This paper outlines some of the
distinctive features of the regulatory systems in other Australian states and
territories, at the federal level and in New Zealand. It is not a comprehensive
description of each jurisdiction; rather it highlights key processes and
developments in regulatory reform that have been adopted. Each jurisdiction
overview has been reviewed by the appropriate regulatory policy unit to check
for factual accuracy. The Commission welcomes feedback from each of the
jurisdictions and thanks them for the time and effort involved.
2
Regulation in Australia (Commonwealth)
At the Australian federal level, the Minister for Finance and Deregulation and the
Minister Assisting on Deregulation, through the Department of Finance and
Deregulation (DFD), are responsible for better regulation and red tape reduction
policies, as part of the Australian Government’s commitment to microeconomic
reform. The better regulation agenda is implemented in the Department by the
Deregulation Policy Division and the Office of Best Practice Regulation (OBPR)
(DFD (Australian Government) 2010e; DFD (Australian Government) 2010c).
Deregulation Policy Division
The Deregulation Policy Division supports the responsible Ministers through the
provision of policy advice and support, aimed at reforming poorly performing
regulation and government operations. This includes an emphasis on reform to
Commonwealth regulation and cross-jurisdictional (Commonwealth-state)
regulation (DFD (Australian Government) 2010e).
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Office of Best Practice Regulation
The OBPR ‘promotes the Government’s objective of improving the
effectiveness and efficiency of regulation’ (DFD (Australian Government)
2010a). The OBPR assists Australian Government departments and agencies to
comply with the Australian Government’s Regulatory Impact Analysis (RIA)
requirements contained in the Best Practice Regulation Handbook (June 2010). The
OBPR plays a similar role in national regulatory proposals considered by the
Council of Australian Governments (COAG), ministerial councils or national
standard-setting bodies. While a division within the DFD, the OBPR has
independence from the DFD and portfolio Ministers in assessing and reporting
on whether best practice regulation requirements contained in the Handbook
have been complied with (DFD (Australian Government) 2010a).
Some of the main functions of the OBPR, outlined in its Charter, include:



2.1
advising government agencies on appropriate quality control mechanisms in
the development of regulatory proposals and review of existing regulation,
including whether a Regulatory Impact Statement (RIS) is required
examining RISs and advising decision-makers on their adequacy
managing Post-implementation Reviews and Annual Regulatory Plans (DFD
(Australian Government) 2010d).
Regulatory Impact Analysis (RIA) processes
The Best Practice Regulation Handbook requires that a RIS be prepared for all
proposed decisions made by the Australian Government and its agencies, that
are likely to have a regulatory impact on business or the not-for-profit sector,
unless that impact is only minor or machinery in nature and will not substantially
alter existing arrangements (Australian Government 2010, p. 8). How the impact
of the regulatory decision is classified is crucial in determining whether the
Australian Government’s best practice regulation policy mandates the
preparation of a RIS (Australian Government 2010, pp. 9-10). The RIS
requirements apply to all Australian Government departments, agencies,
statutory authorities and boards that make or review regulations that have an
impact on business or the not-for-profit sector. This includes decisions by
boards or agencies that have administrative or statutory independence.
‘Regulation’ is defined very broadly at the federal level, to include ‘any “rule”
endorsed by government where there is an expectation of compliance’
(Australian Government 2010, p. 9). This includes primary legislation, legislative
instruments (disallowable and non-disallowable) and international treaties.
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2
Industry codes of practice, accreditation schemes, industry-government
agreements and guidance notes are also considered ‘regulation’.1 ‘Legislative
instruments’ are a form of secondary legislation and are governed by the
Legislative Instruments Act 2003 (Cth). A ‘legislative instrument’ is defined as an
instrument in writing that is of legislative character and is or was made under the
exercise of power delegated by Parliament (s 5(1)). Instruments can also be
declared ‘legislative instruments’ under the Legislative Instruments Act (s 6). This
means that both primary and secondary legislation can be subject to the
Commonwealth RIS process (Australian Government 2010, p. 9).
2.2
Consultation requirements
Best Practice Consultation Principles
The Australian Government also requires public consultation. Each RIS must
demonstrate that consultation, appropriate to the magnitude of the problem
being addressed and the significance of the potential impact, has occurred
(Australian Government 2010, p. 51). The consultation undertaken and reported
in the RIS should comply with the Australian Government’s Best Practice
Principles and Consultation Policy, outlined in appendix C of the Handbook
(Australian Government 2010, p. 18).
However, note that grant programs, government agreements and government procurement of specific
goods or services are not ‘regulation’, unless they impose more general regulatory requirements on the
organisations receiving the funding or providing the goods or services (Australian Government 2010, p. 9).
1
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Box 1
Australian Government’s Best Practice
Consultation Principles
When developing regulation, all government agencies should consider the following
principles in planning and managing consultation:







‘Continuity: consultation should be a continuous process that starts early in the
policy development process.
Targeting: consultation should be widely based to ensure it captures the diversity
of stakeholders affected by the proposed changes. This includes State, Territory
and local governments, as appropriate, and relevant Commonwealth
departments and agencies.
Timeliness: consultation should start when policy objectives and options are being
identified. Throughout the consultation process stakeholders should be given
sufficient time to provide considered responses.
Accessibility: stakeholder groups should be informed of proposed consultation,
and be provided with information about proposals, via a range of means
appropriate to those groups.
Transparency: policy agencies need to explain clearly the objectives of the
consultation process, the regulation policy framework within which
consultations will take place and provide feedback on how they have taken
consultation responses into consideration.
Consistency and flexibility: consistent consultation procedures can make it easier for
stakeholders to participate. However, this must be balanced with the need for
consultation arrangements to be designed to suit the circumstances of the
particular proposal under consideration.
Evaluation and review: policy agencies should evaluate consultation processes and
continue to examine ways of making them more effective.’
Source: DFD (Australian Government) 2010b.
Annual Regulatory Plans
One mechanism by which the Best Practice Consultation Principles are
implemented is through the publication of Annual Regulatory Plans. Australian
Government departments and agencies responsible for regulatory changes that
are likely to have a significant impact on business, are required to publish an
Annual Regulatory Plan in July each year. These Plans are published on the
websites of each agency and the OBPR and should be continuously updated
(Australian Government 2010, p. 49; DFD (Australian Government) 2010b).
An Annual Regulatory Plan informs business and the general community about
changes to Australian Government regulation and facilitates business
participation in the development of regulation that is relevant to them. They
should include information on:
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4


‘changes to business regulation which have occurred since the beginning of
the previous financial year, and
proposed regulatory activity, including a description of the issue, information
about the consultation strategy, an expected timetable and contact details’
(DFD (Australian Government) 2010b).
Business consultation website
Annual Regulatory Plans published by individual agencies are linked to a business
consultation website, set up by the Department of Innovation, Industry, Science
and Research. The business consultation website aims to improve the
effectiveness of consultation. It allows stakeholders to register interest in
participating in future consultation processes in particular areas of regulation and
alerts them when any arise, provides information on the Australian
Government’s consultation policy and procedures, and news on forthcoming
changes to regulation (DFD (Australian Government) 2010b).
2.3
Review of existing regulation
There are a number of ways in which existing regulation is reviewed by the
Australian Government. These include:



Post-implementation Reviews: a Post-implementation Review (PIR) is required
where a proposal proceeds (through Cabinet or another decision-maker)
without the preparation of an adequate RIS. The PIR is required regardless
of whether an exemption from the RIS process was granted by the Prime
Minister, due to exceptional circumstances. It must commence within one to
two years of implementation of the regulation. The scale and scope of the
PIR depends on the individual circumstances but the analysis required will
generally be commensurate with what would have been expected of the RIS,
at the decision-making stage (Australian Government 2010, p. 21).
Five-yearly Reviews: Commonwealth regulation (includes all forms of regulation
as defined under the RIS requirements) that has an impact on business or
the not-for-profit sector, and is not categorised as minor or machinery, is
subject to periodic review every five years, unless it is subject to review
under the Legislative Instruments Act or other statutory review provisions.
Regulations are to be screened each year to identify which regulations should
be reviewed under the five-yearly program and to organise a review schedule.
The first Five-yearly Review is required to commence in 2012 (Australian
Government 2010, p. 47).
Annual Review of Regulatory Burdens on Business: since February 2007, the
Productivity Commission has undertaken a series of annual reviews of the
burdens placed on business by Commonwealth regulation. The reviews are
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
5

2.4
designed to ensure that the stock of Commonwealth regulation is efficient
and effective and to identify areas where regulation needs to be improved,
consolidated or removed. The latest in the series, a review into business and
consumer services, was completed in 2010 (PC 2010).
Sunsetting of Legislative Instruments: regulations made under the Legislative
Instruments Act are generally subject to a sunset provision after 10 years of
operation (s 50). The sunsetting provisions are designed ‘to ensure that
legislative instruments are kept up to date and only remain in force for so
long as they are needed’ (s 49). Proposals to replace legislative instruments
that have sunset may also require the preparation of a RIS, if they meet the
other threshold triggers (Australian Government 2010, p. 8).
Major regulatory initiatives
Reforms for a Seamless National Economy
COAG’s National Partnership to Deliver a Seamless National Economy is a
vehicle for cross-jurisdictional regulatory reform. COAG agreed to the National
Partnership on the 29 November 2008, to improve Australia’s productivity by
reducing the costs and regulatory barriers of conducting business in multiple
jurisdictions. The National Partnership focuses on 27 COAG deregulation
priorities and commits the Australian Government to provide up to $550 million
over five years, to facilitate and reward states and territories in delivering the
reforms (OBPR (Australian Government) 2009, p. 3). The National Partnership
also includes eight competition reforms and ongoing reform of regulatory
processes.
The COAG Business Regulation and Competition Working Group is developing
ways to improve the quality of regulation in national markets, in areas where the
Commonwealth and states share responsibility. The Working Group is chaired
by the Minister for Finance and Deregulation and the Minister assisting on
Deregulation and is assisted by the Deregulation Policy Division, which provides
a secretariat and administrative and policy support. (DFD (Australian
Government) 2010e).
Better Regulation Ministerial Partnerships
Better Regulation Ministerial Partnerships between the Minister for Finance and
Deregulation and other portfolio Ministers, are a new approach to reforming
particular areas of regulation. For example, the Review of Health Technology
Assessment in Australia, initiated by the Minister for Health and Ageing and the
Minister for Finance and Deregulation, was one of the first Better Regulation
Ministerial Partnerships undertaken by the Australian Government (DHA
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6
(Australian Government) 2009, p. 120). In December 2008 terms of reference
were referred to the Department of Health and Ageing, who worked in close
collaboration with the DFD. A report was released in December 2009,
recommending ways of to improve the efficiency of procedures for the
assessment of new health technologies (DHA (Australian Government) 2009,
p. 30).
Other Partnerships completed so far include:



3
establishing a centralised security clearance system for all Australian public
service employees and contractors
reducing compliance costs for businesses importing excise equivalent goods
reducing the complexity and length of product disclosure statements for
various financial services products (DFD (Australian Government) 2010e).
Regulation in New South Wales
The New South Wales (NSW) Government’s regulatory policy can be found in
the Guide to Better Regulation (November 2009). The Guide provides advice to
agencies on how to ensure that all new and amending regulatory proposals
comply with the seven ‘better regulation principles’ (BRO 2009b, p. 3). The
Guide requires that all new and amending regulatory proposals, submitted for
approval by Cabinet or the Executive Council, must demonstrate compliance
with these seven principles.2
The Minister for Regulatory Reform is responsible for implementing the NSW
Government’s commitment to cut red tape. The Minister is supported by the
Better Regulation Office (BRO), within the Department of Premier and Cabinet
(BRO 2009b, pp. 3-4). The BRO promotes regulatory reform and advocates for
best practice regulation throughout government. Its roles include:




acting as a gatekeeper, reviewing and advising the Minister on compliance
with requirements outlined in the Guide to Better Regulation
conducting targeted reviews into specific regulatory areas or industries,
where reducing red tape will have benefits for the NSW economy
reporting annually on reforms implemented across the NSW Government to
reduce red tape for business, government and the community
reporting on the Government’s progress towards achieving its $500 million
red tape reduction target, by June 2011
The Guide to Better Regulation exempts certain regulatory proposals from the better regulation requirements. If
a proposal is exempt, there is no need to demonstrate that it complies with the seven better regulation
principles (BRO 2009, p. 10).
2
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providing ongoing assistance to agencies, to help them satisfy the better
regulation requirements (DPC (NSW) 2010a).

3.1
Regulatory Impact Analysis (RIA) processes
All new and amending regulatory proposals are required to demonstrate
compliance with the seven better regulation principles. A ‘regulatory proposal’ is
defined very broadly and includes Acts of Parliament (primary legislation), as well
as regulations and statutory instruments (secondary legislation) (BRO 2009b,
p. 5). The BRO provides the Minister for Regulatory Reform with strategic
policy advice on whether each regulatory proposal complies with the better
regulation principles.
Box 2
The Better Regulation Principles in NSW
In NSW, the seven better regulation principles that apply to all new or amending
regulatory proposals submitted to Cabinet or the Executive Council for approval, are
as follows:
‘Principle 1: The need for government action should be established
Principle 2: The objective of government action should be clear
Principle 3: The impact of government action should be properly understood by
considering the costs and benefits of a range of options, including non-regulatory
options
Principle 4: Government actions should be effective and proportional
Principle 5: Consultation with business and the community should inform regulatory
development
Principle 6: The simplification, repeal, reform or consolidation of existing regulation
should be considered
Principle 7: Regulation should be periodically reviewed, and if necessary reformed to
ensure its continued efficiency and effectiveness.’
Source: BRO 2009b, p. 7.
Better Regulation Statements
A Better Regulation Statement must be prepared for all regulatory proposals
classified as ‘significant’. Each Better Regulation Statement must provide more
detailed reasoning and support for the recommended approach (BRO 2009b,
p. 9). An assessment of a number of regulatory and non-regulatory options to
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8
address the policy objective must be considered and the costs and benefits of
those options should be outlined in detail. The Minister for Regulatory Reform
will provide advice in Cabinet on whether or not the proposal complies with the
better regulation requirements.
Portfolio ministers are responsible for determining whether the threshold test of
‘significant’ has been met, and therefore whether a Better Regulation Statement
needs to be prepared in respect of the regulatory proposal. A regulatory proposal
will generally be considered significant if it would:





introduce a major new regulatory initiative
impact significantly on individuals, the community or a sector of the
community
impact significantly on business, including by imposing significant
compliance costs
impose a material restriction on competition
impose a significant administrative cost to government (BRO 2009b, p. 9).
In accordance the Better Regulation Principles, consultation should occur at all
relevant stages of regulatory development. A minimum of 28 days consultation
with business and the community is required (BRO 2009b, p. 20). The NSW
Government’s Consultation Policy (November 2009) provides more guidance on
how effective consultation can complement the regulatory process (BRO 2009a,
p. 2).
Regulatory Impact Statements
Statutory rules must also comply with the Subordinate Legislation Act 1989 (NSW),
which requires the preparation of a Regulatory Impact Statement (RIS) for
statutory rules that are ‘likely to impose an appreciable burden, cost or
disadvantage on any sector of the public’ (sch 3(6)). A ‘statutory rule’ is a
regulation, by-law, rule or ordinance made by, or required to be approved or
confirmed by, the Governor, other than the instruments specified in sch 4 of the
Subordinate Legislation Act (s 3). As the Subordinate Legislation Act requires
that statutory rules be automatically repealed every five years, any replacement
statutory rule that will impose an appreciable burden must also undergo the RIS
process (s 10).
Certain statutory rules, when certified in writing by the relevant Minister, will not
require the preparation of a RIS (Subordinate Legislation Act s 6). Where a new
regulation is ‘significant’, a RIS that complies with the requirements of a Better
Regulation Statement can be submitted with a Cabinet or Executive Council
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Minute and there is no need to also prepare a Better Regulation Statement (BRO
2009b, p.9).3
3.2
Review of existing regulation
The NSW Government has committed to implement the recommendations
made by Independent Pricing and Regulatory Tribunal (IPART) in Investigation
into the Burden of Regulation in NSW and Improving Regulatory Efficiency (October
2006). One of these commitments involved strengthening and coordinating
processes to review existing regulation, by:




instituting a program of rolling review, and where appropriate reform, of all
primary and subordinate legislation
following reforms, inserting review clauses to establish a timetable for future
review
ongoing targeted reviews of regulatory burden
conducting three industry specific red tape reviews of existing regulation
annually, for the next five years (NSW Government 2007, p. 4).
Making it Easy in NSW: Annual Update on Regulatory Reform 2009-10, published by
the BRO, discusses the current legislative review processes in NSW. These
include:


Statutory reviews: periodic review of primary legislation and the insertion of a
review clause in all Bills (unless the Bill will have minimal impact). The
period of review is generally five years.4
Staged repeals: regulations are subject to a staged five-yearly repeal program,
under the Subordinate Legislation Act 1989 (ss 10- 12).
Although documentation (in the form of a revised RIS, Cabinet Minute or separate document) of
consultation undertaken and justification for the final regulatory proposal, is required (BRO 2009, pp. 10-11).
3
4
For example, the Residential Tenancies Act 2010 (NSW) contains a typical review clause:
227 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain
valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of
assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12
months after the end of the period of 5 years.
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
3.3
Statute law revision program: laws are amended, repealed or consolidated twice
yearly by Parliamentary Counsel, in association with the Department of
Premier and Cabinet (DPC (NSW) 2010b, pp. 12-14).
Red tape reduction program
The NSW Government has a target of reducing red tape by $500 million by June
2011. In the 2009-10 Annual Update on Regulatory Reform, the Government
reported that it is on track to reach this target. As at 30 June 2010, 167 red tape
reforms covering a wide range of policy areas had been implemented, resulting in
savings in time and money for business, government and the community.
Targeted reviews
The BRO plays a role in developing and coordinating regulatory reform
initiatives that apply across government and in conducting targeted reviews of
legislation (DPC (NSW) 2010b, p. 4). Since 2008, the BRO has completed 10
targeted reviews into specific areas of regulatory burden, in partnership with
relevant agencies. In 2009-10, the BRO completed four targeted reviews into the
planning system, taxi reform, financial reporting for the not-for-profit sector and
electricity contestability (DPC (NSW) 2010b, pp. 10-11). A further three targeted
reviews are currently underway into debt recovery, toll roads and the NSW
Government’s business interface.
Review of the business interface
The BRO review of the NSW Government’s business interface is intended to
improve interaction between NSW Government regulators and regulated entities,
by making it easier for business and the community to find out and comply with
regulation. The review will examine ways of reducing costs to business, through
streamlining transactions with government regulators and regulatory processes. It
will also consider best practice to make those interactions easier and more costeffective (DPC (NSW) 2010c).
4
Regulation in Queensland
In Queensland, the Treasurer and Minister for Employment and Economic
Development are responsible for regulatory reform and efficiency. The
Queensland Office for Regulatory Efficiency (QORE), located in the
Queensland Treasury, supports the Treasurer in this role and implements
Queensland’s Smart Regulation Reform Agenda. This Agenda seeks to put in
place a ‘smart’ regulatory environment by tackling the quantity of existing
regulatory stock and the quality of future regulation simultaneously.
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The Agenda has a five-point action plan:
(1)
(2)
(3)
(4)
(5)
establishing leadership and governance
reducing the existing stock of regulation
improving the quality of new regulation
improving the business-government interface
measuring and reporting on progress with the reform program (QORE
2009, p. 6).
QORE’s other responsibilities include:


4.1
regulation development, review and advice:
–
providing advice and assessing Regulatory Assessment Statements
(RASs) prepared by Queensland Government agencies
–
providing regulatory best practice advice to assist agencies
–
working on ways to improve regulation making and review procedures
coordinating Queensland’s inputs to national COAG reforms (Treasury
Office 2010a; QORE 2009, p. 6).
Regulatory Impact Analysis (RIA) processes
Regulatory Assessment Statement System
The Queensland Government recently implemented a streamlined Regulatory
Impact Analysis process, called the Regulatory Assessment Statement (RAS)
System. The Regulatory Assessment Statement System Guidelines (March 2010)
published by the QORE, outline the requirements of the RAS system. The RAS
system has been operational for nearly 12 months and is currently under review
to identify opportunities for refinement. As part of this review, Queensland is
contemplating introducing legislative amendments to further strengthen the RAS
System. The final outcomes of this review will be reported to Cabinet in 2011.
The RAS System applies to the development of primary, subordinate and certain
types of quasi regulation (industry codes, standards and accreditation schemes)
(Treasury Office 2010b, pp. 8-9). Although the RAS System is designed so that
all regulatory proposals are assessed under one uniform system, the status of
subordinate legislation differs slightly because the Statutory Instruments Act 1992
(Qld) requires the preparation of a Regulatory Impact Statement (RIS) for
subordinate legislation ‘likely to impose appreciable costs on the community’
(s 43). The Queensland Government has tried to accommodate this, by
incorporating the RIS requirements into the RAS System. Subordinate legislation
that meets the ‘appreciable’ cost threshold under the Act, is deemed to have a
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12
‘significant’ impact and therefore require preparation of a RAS. The RAS System
contains requirements additional to those required under the Statutory
Instruments Act but to the extent of any inconsistency, the Act will prevail over
the RAS System Guidelines (Treasury Office 2010b, pp. 10-11).
Regulatory Principles Checklist
A key feature of the RAS System in Queensland is the use of a ‘Regulatory
Principles Checklist’, which is progressively filled in through the regulatory
development process, demonstrating that best practice principles have been
applied. The Checklist must be completed for all regulatory proposals within the
scope of the RAS System and a copy, endorsed by the relevant Minister, must be
attached when the final proposal is submitted to Cabinet, or other relevant
decision-maker, for approval (Treasury Office 2010b, pp. 19-20, 54).5
Regulatory proposals excluded from the RAS System only require completion of sections 1 (case for action)
and 2 (exclusion) of the Regulatory Principles Checklist (Treasury Office 2010b, p. 54).
5
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Box 3
Regulatory Principles Checklist (Queensland)
Criteria for assessing whether best practice principles have been applied in the
development of regulation, include:
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

Case for action: has a clear case for Government action been established?
Exclusion: is the regulatory proposal excluded from the RAS system? If yes,
provide reasons
Options analysis: consideration of a range of feasible policy options (regulatory
and non-regulatory)? Consideration of models in other jurisdictions (including
uniform or harmonised models)? Is the proposed model effective and
proportional?
Impact assessment: have costs and benefits of all feasible policy options been
assessed? Proposed regulation generates greatest net benefit? Direct and indirect
impacts quantified? Compliance costs considered? Consideration of
administrative and enforcement costs to Government? Can Government meet
these costs with existing resources?
Consistency with other regulation: is the proposal consistent with the Competition
Principles Agreement? Is it consistent with and not duplicative of Queensland
Government policy and regulation and Commonwealth regulation? Have
opportunities to simplify (including consolidate, reform or repeal) regulation
been adopted?
Consultation: affected stakeholders consulted at all stages of regulatory
development cycle and been given opportunity to present their views? Treasury
and Department of Premier and Cabinet consulted?
Implementation and compliance support: clear, concise and consistent regulations that
facilitate understanding and compliance? Information, education and training to
inform regulators and regulated entities of policy intent and compliance
requirements? Easily accessible compliance tools (such as use of information
technology)? Appropriate Government service standards and benchmarks set?
Transitional issues considered?
Review: strategies to facilitate periodic and systematic review of proposed
regulations?
Source: Treasury Office 2010b, p. 56.
Stakeholder Consultation Protocol
The RAS system requires ‘effective consultation with affected key stakeholders at
all stages of the regulatory cycle’ (Treasury Office 2010b, p. 93). The RAS
contains a Stakeholder Consultation Protocol with best practice principles and
minimum requirements. The minimum requirements include:

adequate consultation with stakeholders has taken place to support the
informed completion of a Preliminary Impact Assessment (PIA)
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



where feasible, advance notice is provided to business and community for all
upcoming consultation activities via the Queensland Government’s ‘Get
Involved’ website (at least three months notice is recommended)
a minimum period of 28 days allowed for all public RAS consultations
a final RAS approved for release published on the ‘Get Involved’ website
all other regulatory proposals are notified on the online register via the ‘Get
Involved’ website (Treasury Office 2010b, p. 94).
Two stages of assessment
The Queensland RAS System involves two levels of assessment:


an initial assessment through the preparation of a PIA and
a final assessment in the form of a RAS, if the PIA determined that the
impact(s) of the regulatory proposal would be ‘significant’.
The PIA must be completed for all regulatory proposals (except for those
excluded from the RAS System)6 and involves a brief assessment of the potential
economic (including competition), environmental, social and compliance impacts
on government, business and the community (Treasury Office 2010b, p. 25). A
RAS requires more thorough analysis and assessment of the wider costs, benefits
and impacts of the regulatory proposal, including a cost-benefit analysis. A draft
RAS is submitted to the relevant decision-maker for approval, before it is
released for public consultation. Following consultation, the final RAS is drafted,
incorporating the results of the consultation process. The completed Regulatory
Principles Checklist and RAS are then attached and submitted for ultimate
approval (Treasury Office 2010b, pp. 31-32).
4.2
Review of regulation
The RAS system encompasses a number of processes for the review of new and
existing regulation, including:


Review of new regulation: all new regulation developed and implemented under
the RAS System is to be reviewed within 10 years of the commencement
date, unless there are pre-existing review arrangements in place (Treasury
Office 2010b, p. 33).
Review of existing regulation: regulation already in place at the time the RAS
System was implemented must also be reviewed within 10 years of the RAS
system’s commencement, unless: it will have minimal impact; it is subject to
An extensive list of the types of regulation excluded from the RAS System can be found in box 3, pp. 23-24
of the Regulatory Assessment Statement System Guidelines (March 2010).
6
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15



4.3
the sunsetting provisions of the Statutory Instruments Act or a National
Competition Policy review obligation; or it is already scheduled for review in
the agency’s Regulatory Simplification Plan (Treasury Office 2010b, p. 34).
Sunsetting of subordinate legislation: subordinate legislation is subject to staged
automatic expiry every 10 years under the Statutory Instruments Act (s 54).
Post-implementation reviews: in certain circumstances the Queensland Treasurer
can exempt regulation, which has been assessed as having a ‘significant’
impact in the PIA, from requiring the preparation of a RAS. These
exempted regulations must be subject to a post-implementation review,
commencing within two years of the implementation date. The scale and
scope of the post-implementation review should be similar to what would
have been prepared at the decision-making stage (Treasury Office 2010b,
pp. 33, 35).
Regulatory Simplification Plan 2009-13: this is a phased program of review of
the existing stock of regulation, undertaken by individual agencies. The
Regulatory Simplification Plans of phase 1 agencies commenced in 2009.
Plans for phase 2 agencies commenced in 2010 (QORE 2009, p. 6). The
majority of Queensland Government agencies have published their
Simplification Plans and are currently seeking business, stakeholder and
community feedback.
Major regulatory initiatives
Smart Regulation Reform Agenda
The Queensland Government has instituted the Smart Regulation Reform
Agenda, which involves: reducing the stock of existing regulation; improving the
quality of new regulation and the business government interface; and introducing
a more efficient, streamlined process for scrutinising regulatory proposals. Many
of the features of the Queensland regulatory framework discussed above are part
of this agenda. In the 2008-09 Major Economic Statement, the Queensland
Government committed to reducing the administrative burden to government
and compliance burden to business, by $150 million each year by the end of
2012-13 (Treasury Office 2010c; Queensland Government 2009, p. 40).
Regulatory Reform Champions
Queensland has a program of Regulatory Reform Champions (RRCs), to
promote regulatory reform across Government. Each Government department
is allocated a RRC, who works within the department overseeing the
development of regulatory reform, with an emphasis on simplification. The
RRCs meet regularly to exchange ideas and provide peer support. The RRC acts
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16
as a first point a contact for issues relating to regulatory policy within the
relevant agency (Treasury Office 2010b, p. 14).
Prequalified Panel of Suppliers
To support Queensland Government agencies in implementing the
Government’s regulatory reform agenda, QORE has established a Prequalified
Panel of Suppliers to assist agencies in best practice regulatory development and
review.
Information technology tools
The Smart Regulation Reform Agenda uses IT and web-based tools to engage
business and the community in regulatory reform. These tools can be used to
increase business participation in the regulatory process. They complement other
engagement initiatives, such as one-on-one meetings with peak bodies and the
testing of ideas that may go to Cabinet, with 15 business and community focus
groups.
The IT initiatives include:






Shaping Smart Regulation Mailbox: a website allowing individuals and
businesses to alert the Queensland Government if they have experienced
unnecessary or excessive regulation, or have any suggestions for future
regulatory reform.
Regulatory Case Study Template: an electronic template that allows individuals to
conduct a self-assessment of the impact of unnecessary regulation on their
business or organisation, which can then be submitted via email to QORE.
ConsultQld: is a website that contains links to policy and legislative reviews
that are currently undergoing public consultation and are seeking input from
business and the general community. It also has information on upcoming
consultations.
Agency Regulatory Simplification Plans website: publishes the Regulatory
Simplification Plans for the phase 1 agencies and allows individuals to
respond online.
Regulatory Assessment Statement Register: lists all RASs when they have been
endorsed for public release by Queensland Government departments,
agencies and statutory authorities.
Register of Representative Bodies: a register of industry and community bodies
willing to provide their expertise to assist agencies in measuring ‘on the
ground’ compliance costs and impacts of regulatory proposals.
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17

5
Compliance Cost Calculator: an interactive tool that assists policy and legislative
officers assess the compliance costs of regulatory proposals (Department of
Communities (Queensland Government) 2010).
Regulation in South Australia
In South Australia (SA), the Office of the Economic Development Board
(OEDB) in the Department of Premier and Cabinet (DPC) has responsibility for
the development of regulatory policy. The relevant portfolio Minister is the
Minister for Industry and Trade, as chair of the Competitiveness Council
(Government of South Australia 2007).
The Economic Development Board, which is the key advisory body to the SA
Government on economic development issues, is supported by the OEDB. The
Competitiveness Council, a subcommittee of the Economic Development
Board, looks at practical ways to improve the business competitiveness of SA. It
is also the body responsible for SA’s Red Tape Reduction Program (RTRP)
(Government of South Australia 2010a).
5.1
Regulatory Impact Analysis (RIA) processes
In December 2010, the SA Government approved the mandating of a new
Regulatory Impact Assessment (RIA) policy that establishes guidelines to be
followed in designing and reviewing government regulation, and associated
processes for preparing Cabinet submissions. The resulting Better Regulation
Handbook: How to Design and Review Regulation, and Prepare a Regulatory Impact
Statement was published in January 2011. All SA Government agencies must
comply with the RIA requirements outlined in the Handbook, which come into
effect from 1 March 2011 (Government of South Australia 2011, p. 1).
The Handbook aims to ensure that SA Government agencies follow the COAG
Best Practice Regulation Principles when designing new, and reviewing existing,
regulation (Government of South Australia 2011, pp. 1-2). It guides agencies
through the process of preparing a Regulatory Impact Statement (RIS)
(Government of South Australia 2011, pp. 14-23).
A broad definition of ‘regulation’
From 1 March 2011, the RIA process is triggered whenever SA government
agencies propose the introduction of new regulation, or the review or
amendment of existing regulation (including through rolling five-yearly review
arrangements discussed in section 5.2) (Government of South Australia 2011,
p. 3). The term ‘regulation’ is defined very broadly as:
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18
… instruments which are implemented to address a problem or risk and which
either impose mandatory requirements upon business and the community or
seek to change behaviour. (Government of South Australia 2011, p. 3)
‘Regulation’ therefore includes primary and subordinate legislation, voluntary
codes, standards, accreditation schemes, government/industry agreements and
market-based instruments such as levies and subsidies (Government of South
Australia 2011, p. 3).
Regulatory Impact Assessment process
From 1 March 2011 a RIS must accompany any proposal to impose or amend
regulation, submitted to Cabinet for approval, unless the proposal is:



likely to have nil or minor impacts; or
subject to an exemption specified in the Handbook; or
required to be urgently implemented (Government of South Australia 2011,
pp. 4, 6).
The Handbook also includes consultation guidelines. From 1 March 2011,
agencies should consult Cabinet Office (within DPC) if there is uncertainty about
whether a RIS is required. Delays in implementation, amendment of regulation
or adjustment of an agency’s red tape reduction target may result, if agencies
determine internally that a RIS is not required and Cabinet Office makes a
subsequent contrary determination. Where a RIS has not been prepared agencies
must include a statement, explaining on what basis the RIS was considered
unnecessary, with the Cabinet submission (Government of South Australia 2011,
p. 7).
From 1 March 2011, consultation with affected stakeholders is required where
the regulatory proposal will have ‘significant impacts’ on business, the
community or environment and/or where the views of affected stakeholders
‘will be an important consideration for decision makers or the proponent agency’
(Government of South Australia 2011, p. 8). RISs must be publicly released
under the new policy. This requirement will not come into effect until six
months after the new policy commences.
From 1 March 2011, new arrangements for review and assessment of RISs also
come into effect. Draft Cabinet Submissions with the attached RIS should be
circulated to key interested agencies for review.

Department of Trade and Economic Development advises on business and
regional impacts
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19




Department for Families and Communities advises on family and societal
impacts
Department of Environment and Natural Resources coordinates advice on
environmental impacts
Department of Treasury and Finance advises on the adequacy of costbenefit analysis contained in the RIS
Cabinet Office will make an overall determination of the RIS adequacy and
provide sign-off for submission to Cabinet. Where Cabinet Office sign-ff is
not gained and the RIS is not revised, the agency can appeal to the Minister
for Industry and Trade to override Cabinet Office assessment (Government
of South Australia 2011, pp. 9-10).
Red tape reduction offset
From 1 March 2011, a new red tape reduction offset requirement comes into
effect. Where Cabinet approves a regulatory proposal that is not compliant with
the Handbook, any costs imposed on business (as an increase in costs under the
proponent agency’s red tape reduction assessment) will need to be offset by the
proponent agency identifying savings to achieve their red tape reduction target
(Government of South Australia 2011, p. 10).
5.2
Review of regulation
Sunsetting of regulation
Under the Subordinate Legislation Act 1978 (SA), regulations automatically expire
every 10 years (Pt 3A). ‘Regulation’ is defined as ‘any regulation, rule or by-law
made under an Act’ (s 4). Sunsetting allows regulations to be systematically
reviewed and remade or replaced where appropriate.
Rolling five year reviews
A key part of the SA Government’s RTRP (discussed below in 5.3) is a rolling
five review of regulation that has significant impacts on business. Five-Yearly
Reviews of Regulation- Guidance to Agencies on Establishing a Work Program assists
agencies to identify priority regulation that should be subject to five-yearly review
(Government of South Australia 2011, p. 1).
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20
5.3
Developments in regulatory reform
Red Tape Reduction Program
The Competitiveness Council drives SA’s RTRP. The Council is currently
focusing on the SA Government’s second target of $150 million per year
reduction in regulatory burden by April 2012. The scope of the RTRP has also
been extended to include the not-for-profit sector and the economic activities of
private individuals, in addition to business (Government of South Australia
2010b, p. 3).
Priorities of the RTRP include:




‘the allocation of individual agency targets; with Chief Executives made
accountable to the Premier for achieving their agency’s target;
a network of Red Tape Champions who are responsible within agencies for
preparing red tape reduction plans and six-monthly updating and reporting;
an independent audit of red tape reductions plans (six-monthly);… and
rolling five-yearly reviews of regulation of significance to business’. (OBPR 2010,
p. 82)
The second phase of the RTRP has a greater emphasis on reducing both the
current ‘stock’ of regulation and future ‘flow’ of red tape. An independent audit
of the second phase assessed annual savings of over just $111 million to business
and the not-for-profit sector, as at 30 June 2010 (OBPR 2010, p. 82).
Smarter Business Regulation Project
The Smarter Business Regulation Project focuses on identifying ways to improve
the coordination of regulatory processes. This includes unifying actions that are
common to various regulatory processes and examining how duplication and
overlap can be avoided. The regulatory framework for marine aquaculture and
geothermal and petroleum activities, is being used as model for regulatory
assessment processes in other sectors (OBPR 2010, p. 83).
6
Regulation in Tasmania
In Tasmania the Treasurer and the Economic Reform Unit (ERU), in the
Department of Treasury and Finance (DTF), are responsible for regulatory
policy. The ERU promotes best practice regulation and identifies opportunities
for economic reform. Its functions include:


managing the Legislative Review Program (LRP)
administering the Subordinate Legislation Act 1992 (Tas)
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21

6.1
implementing the COAG National Reform Agenda, including strengthening
National Competition Policy reforms (DTF (Tasmania) 2008).
Regulatory Impact Analysis (RIA) processes
Primary legislation with competition impacts
The LRP forms a key part of the Tasmanian Government’s regulatory reform
program. It aims to ensure that legislation is well targeted and appropriately
justified. The Legislation Review Program: Procedures and Guidelines Manual (March
2006), published by the Tasmanian DTF, outlines the institutions and processes
involved in implementing the LRP. The LRP involves reviewing existing
legislation that restricts competition and scrutinising all proposed legislation, to
ensure that restrictions on competition and impacts on business are properly
justified (DTF (Tasmania) 2006, p. 1).
The rationale behind the LRP is that proposed primary legislation should not
restrict competition or impose a significant impact on business, unless it is
demonstrated that:


the benefits of the restriction to the community as a whole outweigh the
costs; and
the objectives of the legislation can only be achieved by restricting
competition or imposing a significant impact on business (DTF (Tasmania)
2006, pp. 14-15).
It is the role of the ERU to determine, based on information submitted by the
responsible agency, whether a major or minor assessment of the impact of the
proposed primary legislation is required. Where the ERU considers that the
legislative proposal will have a major restriction on competition or impact on
business- that is, ‘it has economy-wide implications, or where it significantly
affects a sector of the economy (including consumers)’- than a major assessment
is required (DTF (Tasmania) 2006, pp. 16-17).
Major assessment of primary legislation entails preparation of a Regulatory
Impact Statement (RIS), including mandatory public consultation. The RIS must
demonstrate that the restriction or impact is in the public benefit and include an
explanation of:


the objectives of the proposed legislation
the relevant issues surrounding the restriction on competition or impact on
business; and
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
22

the costs and benefits flowing from the restriction or impact (DTF
(Tasmania) 2006, p. 18).
Where only a minor assessment is deemed necessary, a Minor Assessment
Statement must be prepared for the proposed primary legislation. A Minor
Assessment Statement involves a brief assessment of the costs and benefits of
the restriction on competition, the impact on business and whether the
restriction or impact is warranted in the public benefit. While public consultation
is encouraged, it is not compulsory for minor assessments (DTF (Tasmania)
2006, pp. 19-20).
Regulatory Impact Statements for subordinate legislation
In Tasmania, the preparation of a RIS in respect of subordinate (secondary)
legislation is governed by the requirements set out in the Subordinate Legislation
Act and the Subordinate Legislation Act 1992: Administrative Handbook (January
2010). The Handbook, published by the ERU, assists agencies responsible for
the preparation of new, amending or replacement subordinate legislation to
comply with the requirements of the Tasmanian Subordinate Legislation Act
(DTF (Tasmania) 2010b, p. 3).
Under s 5(1) of the Subordinate Legislation Act, a RIS must be prepared for
proposed subordinate legislation that ‘would impose a significant burden, cost or
disadvantage on any sector of the public’ (s 5(1)). Whether the threshold of
‘significant’ has been met is determined by the Secretary of the DTF, after
considering the advice of the department responsible for the proposal (DTF
(Tasmania) 2006, p. 21; DTF (Tasmania) 2010b, p. 6). Each RIS must examine
the costs and benefits of all feasible regulatory options, to determine either the
least net cost or greatest net benefit option. The Tasmanian Government
publicly releases all RISs for proposed primary and subordinate legislation. The
LRP and Subordinate Legislation Act require public consultation for at least 21
days (OBPR 2010, p. 84).
The Subordinate Legislation Act also provides for the sunsetting of subordinate
legislation 10 years after the date on which it was made (s 11(2)). Significant
proposals to amend or replace sunsetting subordinate legislation are also subject
to the RIS process. Through the LRP and requirements under the Subordinate
Legislation Act, over 60 Bills and 100 pieces of subordinate legislation were
assessed during the 2009-10 financial year (DTF (Tasmania) 2010a, p. 37).
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
23
6.2
Review of redundant regulation
Tasmania also identifies and repeals redundant legislation. Recently the Legislation
Repeal Act 2010 (Tas) was passed to repeal 59, and revoke 37, pieces of spent
primary and secondary legislation.
6.3
Regulatory reform program
On 11 November 2008, the Tasmanian Treasurer announced establishment of
the Business Tax and Regulation Reference Group. The Group’s terms of
reference included acting as a fora for the discussion and exchange of ideas on
regulatory and taxation reform issues, between the State Government and
business sector. Issues considered by the Group have included proposals for the
development of a Tasmanian ‘red tape reduction’ strategy and identifying priority
areas for reducing regulatory and compliance costs (Aird 2008). In its 2009-10
Annual Report, DTF reported that the Group has been examining opportunities
to reduce regulatory and compliance costs in Tasmania (DTF (Tasmania) 2010a,
p. 37). The Group has since been disbanded but the Tasmanian Government
continues to focus on identifying regulatory reforms, with a focus on reducing
red tape.
7
Regulation in Western Australia
In Western Australia, regulatory policy is overseen by the Treasurer supported by
the Regulatory Reform and Regulatory Gatekeeping Units, within the
Department of Treasury and Finance. The Regulatory Reform Unit’s (RRU)
responsibilities include coordinating Western Australia’s contribution to the
Business Regulation Competition Working Group of the COAG (DTF (Western
Australia) 2010d).
The Regulatory Gatekeeping Unit (RGU) was established by the Western
Australian Government in 2008 to administer the introduction of a best practice
Regulatory Impact Assessment (RIA) process (DTF (Western Australia) 2010c).
Until December 2009, Western Australia had no formal RIA system
(Government of Western Australia 2009, p. 23; DTF (Western Australia) 2010a,
p. 4).
The RGU administers and supports the RIA process in Western Australia by:

providing information, training, advice and support to agencies involved in
the RIA process
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
24




7.1
monitoring the development and implementation of regulation, to ensure
RIA analysis is undertaken where appropriate
commenting on and assessing Preliminary Impact Assessments (PIAs) and
Consultation and Decisions Regulatory Impact Statements (RISs)
providing formal advice to agencies on the adequacy of PIAs and RISs
commenting on Cabinet submissions from a RIA standpoint (Government
of Western Australia 2010, p. 8).
Regulatory Impact Analysis (RIA) processes
The RIA process in Western Australia is governed by the Regulatory Impact
Assessment Guidelines for Western Australia (updated July 2010), published by the
Department of Treasury and Finance. The introduction of the RIA requirements
in Guidelines is staged:



since 1 December 2009: all regulatory proposals submitted to Cabinet for
consideration (including primary legislation and other regulatory policy
proposals approved by Cabinet) have been subject to the RIA process
since 1 June 2010: most forms of subordinate legislation enacted by
submission to the Governor in Executive Council have also been required to
undergo RIA analysis
from 1 June 2011: ‘remaining forms of subordinate legislation’ and quasi
regulatory instruments will also be required to comply with RIA
(Government of Western Australia 2010, p. 2).
Preliminary Impact Assessments
The RIA process in Western Australia involves two tiers of assessment. Each
regulatory proposal undergoes an initial PIA to determine its impacts on business
(including government businesses), consumers and/or the economy. If the PIA
demonstrates that the regulatory proposal will have a significant negative impact,
a RIS must be prepared (Government of Western Australia 2010, p. 2). Factors
relevant when determining whether an impact is ‘significant’ include; the size of
sector affected, effects on the price of a good or service (including enforcement,
compliance and administrative costs), the imposition of any restrictions on
operations in an industry or barriers to entry or exit, and changes in the
regulatory burden or allocation of resources (Government of Western Australia
2010, p. 13).
Regulatory Impact Statements
The second tier, the RIS process, involves two stages of assessment. In the first
stage, a Consultation RIS outlines the policy issue being addressed by the
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
25
regulatory proposal, the Western Australian Government’s objectives and need
for action. It also provides an early examination of the costs and benefits as
assessed prior to consultation. Feasible options for addressing the problem
should be discussed and the preferred option should be identified. Non
regulatory options should be considered where possible. The Consultation RIS
should also explain the consultation strategy to be undertaken (Government of
Western Australia 2010, p. 15).
Following consultation with affected parties, a Decision RIS is prepared. It
analyses the costs, benefits and impacts of each option; discusses outcomes from
the consultation process; and, on the basis of the analysis, recommends the
preferred option to achieve the policy objective. That is the option that ‘provides
the greatest net benefit for society as a whole’ (Government of Western Australia
2010, p. 15). The RIS is then assessed by the RGU against the RIA Adequacy
Criteria contained in appendix 3 of the Regulatory Impact Assessment Guidelines for
Western Australia (Government of Western Australia 2010, p. 16).
7.2
Review of existing regulation
In Western Australia there are no formal processes for the systematic and
periodic review of existing regulation. The Interpretation Act 1984 (WA) governs
matters relating to the making of ‘subsidiary’ legislation but does not contain
provisions for the ‘sunsetting’ of subsidiary legislation (Government of Western
Australia 2009, pp. 58-59; 40-47).
Instituting a process for the ongoing review of existing legislation to reduce the
volume and burden of regulation in Western Australia, was discussed in chapter
5 of Reducing the Burden: Report of the Red Tape Reduction Group (presented to the
Treasurer in December 2009 and publicly released on 24 February 2010).
Two of the Reducing the Burden Report’s recommendations related to the
review of regulation. One recommendation was the introduction of a mandatory
five-year review or repeal clause for all new Acts and regulations. New Acts and
regulations would automatically be repealed, unless the compulsory five-yearly
review concluded the Act or regulation should be retained or amended
(recommendation 5.6). The other recommendation was for the introduction of a
Subsidiary Legislation Act for Western Australia, containing provisions for the
mandatory review of all existing Acts and regulations. All Acts and regulations
would then be automatically repealed after five years (recommendation 5.8)
(Government of Western Australia 2009, pp. 57-59). The Western Australian
Government has not yet announced its response to the Report’s
recommendations.
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26
7.3
Major regulatory initiatives
In December 2008, the Western Australian Cabinet approved a number of
regulatory initiatives to reduce the regulatory burden on business and consumers
in Western Australia. These reforms were publicly announced on 30 January
2009 (Government of Western Australia 2009, p. 24). The three main reforms
were:
(1) the establishment of the Red Tape Reduction Group (RTRG)
(2) the introduction of a best practice RIA process for new and amending
regulatory instruments (discussed above)
(3) authorising Ministers to refer regulation (via the Treasurer) for targeted
review (Government of Western Australia 2009, pp. 1, 24).
The impetus for these initiatives was recognition that ‘Western Australia has a
poor record in reducing regulation. It was the worst performing jurisdiction in
implementing National Competition Reforms’ and red tape reform and had been
described by the Institute of Public Affairs as having ‘developed an international
reputation as the most over-regulated Australian state’ (Government of Western
Australia 2009, pp. 23-24, 51).
Red Tape Reduction Group
The terms of reference for the RTRG required it to:
identify specific areas of existing regulations and red tape which are
unnecessarily burdensome, complex or redundant;
identify regulations and red tape that should be removed or significantly reduced
as a matter of priority; and
recommend practical measures to alleviate the compliance costs of red tape on
business, government and the community (DTF (Western Australia) 2010b).
Between February and June 2009, the RTRG held 62 meetings with a range of
stakeholders, across 12 regional centres and six metropolitan regions and
received 64 written submissions. In response to concerns raised during
consultation, the RTRG published the Reducing the Burden Report, which
identified 720 red tape issues and contained 107 recommendations. The
recommendations fell into three main categories, containing short, medium and
long-term priorities:


reforms to improve the performance and accountability of government
regulators
mechanisms and processes for ongoing red tape reduction (box 4)
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
27

reforms to address 16 specific regulatory issues and areas of regulation
(Government of Western Australia 2009, pp. 1-2, 25).
The Western Australian Government is in the process of responding to the
recommendations by the RTRG. In the Department of Treasury and Finance Annual
Report 2009-10, the Western Australian Government describes the RTRG’s
recommendations as:
an ambitious blueprint to significantly reduce the burden of excessive regulation
and red tape on Western Australian businesses and consumers, by improving the
culture, performance and accountability of government agencies. (DTF (Western
Australia) 2010a, p. 4)
Regulatory Impact Assessment Working Group
The Western Australian Regulatory Impact Assessment (RIA) Working Group
held its first meeting on 25 August 2010, comprising representatives from
various government departments and agencies (RIA Working Group 2010, p. 1).
It was established to facilitate the implementation of the RIA process and more
specifically to deal with any issues arising from the extension of the RIA process
to most forms of subordinate legislation, which began in June 2010. The
Working Group will also have a role in June 2011, during the final roll out of the
RIA process to remaining forms of subordinate legislation and quasi regulatory
instruments (DTF (Western Australia) 2010c).
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28
Box 4
Recommendations for future regulatory reform
in Western Australia
Among its 107 recommendations, the RTRG identified eight recommendations to
maintain the momentum for regulatory reform in Western Australia. They are as
follows:
Recommendation 5.1: Introduce State and individual agency targets to reduce the
existing regulatory burden in Western Australia.
Recommendation 5.2: Introduce agency plans to simplify and modernise existing
regulations and processes.
Recommendation 5.3: Introduce Chief Executive Officer accountability for
regulatory reform through conditions introduced to their performance contracts.
Recommendation 5.4: Appoint senior executive champions within each agency to
implement regulatory reforms.
Recommendation 5.5: Establish an incentive program to reward public sector
employees for identifying areas of regulation and processes for reform.
Recommendation 5.6: Introduce a mandatory review or repeal clause for all new Acts
and regulations.
Recommendation 5.7: Create a one-stop shop with appropriate decision-making
authority within the Department of Treasury and Finance or the Department of the
Premier and Cabinet to facilitate interagency coordination on regulatory issues.
Recommendation 5.8: Introduce a Subsidiary Legislation Act for Western Australia.
Source: Government of Western Australia 2009, pp. 51-59.
8
Regulation in the Australian Capital Territory
In the Australian Capital Territory (ACT), the Regulation Policy Unit (RPU)
within the Economics Branch of the Department of Treasury, assists the
Treasurer oversee regulatory policy. The main functions of the RPU include:




overseeing the implementation of the COAG’s regulatory reform agenda
evaluating the regulatory and competition implications of policy proposals
providing training and advise on the preparation of Regulatory Impact
Statements (RISs)
assessing the adequacy of RISs prepared by government agencies
(Department of Treasury (ACT) 2010).
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29
8.1
Regulatory Impact Analysis (RIA) processes
In the ACT, the RIS process is governed by the Best Practice Guide for Preparing
Regulatory Impact Statements (December 2003), the Legislation Handbook (September
2009) and the Legislation Act 2001 (ACT).
Primary legislation
A RIS must be prepared for all ‘new or amending legislation proposals that may
impact on a stakeholder group, for example, Government, community group,
general public, industry or business group’. In addition, all policy and legislative
proposals submitted for Cabinet consideration require the preparation of a RIS
(ACT Government 2009, p. 19). The requirements of a RIS, including
consultation with affected parties, are outlined in the Best Practice Guide for
Preparing Regulatory Impact Statements (Department of Treasury (ACT) 2003, pp. 1326).
Subordinate legislation and disallowable instruments
The Legislation Act 2001 sets out the circumstances where a RIS will be required
in respect of a subordinate law or disallowable instrument (the ‘proposed law’). A
RIS must be prepared where the proposed law ‘is likely to impose appreciable
costs on the community, or a part of the community’ (s 34(1)).7 The threshold of
‘appreciable cost’ is not defined in the Legislation Act 2001 but the Best Practice
Guide for Preparing Regulatory Impact Statements indicates the term should be
interpreted broadly and not be restricted to purely financial implications. Impacts
on public health, the environment and time are given as examples of appreciable
costs that are less easily measurable in dollar terms (Department of Treasury
(ACT) 2003, p. 11).
8.2
Review of regulation
In the ACT, there is no process for the systematic review of new or existing
regulation mandated by government policy or legislation. However, the ACT
Government continues to review specific areas of regulation or pieces of
legislation, with a view to improving regulatory effectiveness. ACT Government
reviews undertaken in 2009-10 include: the Taxi Industry Review, Police
Criminal Investigative Powers Review, Review of Governance Provisions in the
However, if the proposed law is exempted by the administering Minister (s 34(2)) or the preparation of a
RIS is unnecessary in the circumstances (s 36), then a RIS does not need to be prepared.
7
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
30
Gaming Machine Act 2004 and Review of the Heritage Act 2004 (OBPR 2010,
p. 85).
8.3
Regulatory developments
Community engagement review
The ACT Government has recently developed a framework to strengthen
community participation in the regulatory process, following a review of its
community engagement practices. Under the framework, agencies are
encouraged to be proactive in involving the community early in the decisionmaking process. A number of other strategies are also in progress, to ensure a
more consistent approach to consultation across Government (OBPR 2010, p.
85).
Regulation making reform
In November 2010, the ACT Treasurer announced the development of a
package of regulation-making reforms for Government consideration in 2011.
9
Regulation in the Northern Territory
In the Northern Territory (NT), Economic Policy (within the Economic Group
of Treasury) is responsible for advising Cabinet through the issuing of relevant
certification on various matters, including the economic implications of all new
and amending legislation through the Regulation Making Framework (RMF) (NT
Government 2010a). The RMF is part of the NT’s commitments under the
COAG National Reform Agenda. It is ‘designed to ensure that all new and
amending legislative proposals are efficient and warranted, and only restrict
competition where it is in the public interest to do so’ (NT Government 2010b).
9.1
Regulatory Impact Analysis (RIA) processes
In the NT, the RMF mandates a two-stage regulation impact analysis process.
Guidance on the RMF can be found in Regulation-Making Framework: Principles and
Guidelines 2007 (NT Government 2007) and related documents. ‘Regulation’
refers to ‘any “rule” endorsed by government where there is an expectation of
compliance’ (NT Government 2007, p. 4). The RMF applies to all proposals to
develop new and amending primary and subordinate legislation (legislative or
non legislative instruments, including quasi regulation) that are submitted to
Cabinet (NT Government 2007, p. 4).
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
31
Stage 1: Preliminary Regulation Impact Statement
A Preliminary Regulation Impact Statement (PRIS) must be prepared at the time
approval to draft legislation is requested. The PRIS comprises a description of
the policy problem being targeted, the objectives of the legislative proposal and
the various options for addressing the problem. It also contains a statement of
the proposed public consultation strategy. While consultation with stakeholders,
including other agencies and levels of government, is encouraged as best practice
for all regulatory proposals, it is only mandatory where the proposed legislation
will have a major impact on the community. The PRIS is used to determine
whether a Regulatory Impact Statement (RIS) is required (OBPR 2010, p. 86).
Stage 2: Regulatory Impact Statement
In the NT, preparation of a RIS is triggered when the PRIS indicates that the
regulatory proposal will have material economic implications (OBPR 2010, p.
86). Factors relevant in determining whether the threshold has been reached
include: the extent to which economic activity and competition would be
restricted and the extent to which business compliance costs or burden and
impacts would be increased (equivalent to the Victorian ‘significant effects’ test).
The level of depth and analysis required in each RIS, is to be commensurate with
the significance of the problem and potential impact of the legislation proposed
(OBPR 2010, p. 86).
Advice and assessment under the Regulation Making Framework
Unlike many other jurisdictions, in the NT the role of providing guidance and
advice to agencies during the development of a RIS and the role of assessing the
adequacy of a RIS are separate functions, allocated to distinct government
institutions. Economic Policy within Treasury provides guidance and assistance
to agencies on how to meet the RMF requirements during the development of
PRISs and RISs. PRISs and RISs are then formally assessed by the Regulation
Impact Committee (RIC) (OBPR 2010, p. 87; NT Government 2010b).
The RIC is an interdepartmental committee, comprising representatives from the
Northern Territory Treasury and the Departments of the Chief Minister, Justice
and Business and Employment. It oversees the NT regulatory review process by:



Assessing PRISs and determining whether the preparation of a RIS is
triggered.
Assessing the adequacy of PRISs and RISs against best practice principles.
Advising Cabinet of RIC assessments, through the issuing of certificates. All
regulatory proposals must be certified by the RIC before proceeding to
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
32

9.2
Cabinet. If a PRIS or RIS does not comply with the requirements of the
RMF, then the RIC will formally note this on the relevant certificate.
Advising Cabinet on the RMF (OBPR 2010, p. 87).
Review of existing regulation
The NT Government has policies for the review of existing regulation.



Legislation containing restrictive competition provisions: all legislation that restricts
competition must be reviewed every 10 years. In addition, sunset clauses are
encouraged in the development of all legislative proposals.
Stock of existing regulation: the RMF requires annual reviews to identify existing
regulation that places unnecessary compliance burdens on business. The
current priority focus is on the full implementation of the COAG National
Partnership Agreement to Deliver a Seamless National Economy in the NT.
Statute law revision Acts: since 1995, statute law revision Acts have been
enacted yearly or twice yearly, to make minor revisions and corrections to
Northern Territory law. The Statute Law Revision Bill (No.2) 2010 currently
before Parliament amends various Acts and regulations to; correct
typographical or similar omissions, simplify drafting, update superseded
references and to improve clarity and consistency with other legislation
(Minister for Justice and Attorney-General 2010a; Minister for Justice and
Attorney-General 2010b).
There is no provision in NT legislation for the review and/or automatic repeal of
the stock of subordinate legislation.8
10
Regulation in New Zealand
The New Zealand (NZ) Treasury, including the Regulatory Impact Analysis
Team (RIAT), is responsible for managing the regulatory system in NZ:
(1) RIAT independently assesses the adequacy of Regulatory Impact Statements
(RISs) prepared for significant regulatory proposals.
(2) Treasury advises the Minister of Finance and Minister for Regulatory
Reform in setting a prioritised schedule for the Regulatory Review
Programme (RRP) and coordinates with government agencies involved in
the RRP.
The Northern Territory’s Interpretation Act, which governs the making of subordinate legislation, does not
contain sunsetting or equivalent provisions (ss 63-66).
8
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33
(3) Treasury, in partnership with the Ministry of Economic Development,
coordinates NZ’s regulatory quality system, which includes redesigning and
strengthening regulatory quality management.
The Treasury reports to the Minister of Finance and Minister for Regulatory
Reform, in its capacity as advisor on regulatory matters (The Treasury (NZ)
2010a).
10.1
Regulatory Impact Analysis (RIA) processes
The Regulatory Impact Analysis (RIA) process in NZ is set out in the CabGuide
(the Guide to Cabinet and Cabinet Committee Processes), with guidance in the
Regulatory Impact Analysis Handbook (November 2009) and the Independent Quality
Assurance of Regulatory Impact Statements: Guidance for Agencies (April 2010). The RIA
requirements apply to all policy proposals that have ‘potential regulatory
implications’ (that is they include options that involve creating, amending or
repealing primary legislation or regulations) and are expected to result in a paper
being submitted to Cabinet (The Treasury (NZ) 2009, pp. 3, 5). The RIA process
in NZ lacks legislative backing, being set out in Cabinet requirements rather than
in statute. It also does not distinguish between primary and subordinate
legislation.
Preliminary Impact and Risk Assessment
Two key stages of the RIA process in NZ are the preparation of the Preliminary
Impact and Risk Assessment (PIRA) and the RIS. The PIRA must be completed
once it is determined the relevant policy proposal has potential regulatory
implications that could lead to Cabinet submission. The PIRA has a number of
purposes, including providing Treasury with sufficient information on the nature
and size of the potential impacts and risks of the policy proposal. This
information is then used to determine the most appropriate body to
independently assess the quality of the subsequent RIS. If Treasury confirms that
the proposal is likely to entail a significant impact or risk, than the RIAT will
need to provide independent quality assurance as to the adequacy of the RIS
(The Treasury (NZ) 2009, pp. 3, 17). The threshold of ‘significant impact or risk’
is triggered where the option(s) being considered are likely to have:


‘significant direct impacts or flow-on effects on New Zealand society, the
economy, or the environment or
significant policy risks, implementation risks or uncertainty’ (The Treasury
(NZ) 2009, p.17).
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
34
Regulatory Impact Statements
The RIS must be prepared by the NZ government agency responsible for the
proposal, before the Cabinet paper is drafted. The RIS is therefore considered an
agency document, while the Cabinet paper is the Minister’s document. The aim is
for the RIS to inform the development of the preferred policy option and the
Minister’s recommendations to Cabinet. The RIS must also be accompanied by a
Disclosure Statement, signed by the person responsible for producing the RIS
within the agency. The Disclosure Statement highlights ‘any key gaps,
assumptions, dependencies and significant constraints, caveats or uncertainties in
the analysis’ and whether the any of the policy options may be inconsistent with
the Government Statement on Regulation: Better Regulation, Less Regulation (17 August
2009) (The Treasury (NZ) 2009, pp. 3, 22).
Independent quality assurance
In NZ, all RISs must be subjected to independent quality assurance. The quality
of RISs that meet the threshold of ‘significant impact or risk’ is assessed
externally by the RIAT. In contrast, RISs that do not meet the threshold trigger
are reviewed internally by the relevant agency. When quality assurance is
undertaken by the agency, the individual or group performing the assessment
must have been nominated by the agency’s Chief Executive and must not have
been directly involved in preparing the RIS. The criteria against which the RIS is
assessed are the same, regardless of whether the review is done internally or
externally (The Treasury (NZ) 2009, p. 24). Further advice on the quality
assurance process in NZ, including the assessment criteria, can be found in
Independent Quality Assurance of Regulatory Impact Statements: Guidance for Agencies.
Government Statement on Regulation
The Government Statement on Regulation, released on 17 August 2009,
committed the NZ Government to a series of reforms to reduce the amount and
improve the quality of regulation (English & Hide 2009). This included a
commitment that new regulation would only be introduced when the Minister is
satisfied that it is ‘required, reasonable, [and] robust’. As such, the RIA process in
NZ also requires that the responsible Minister certify in the Cabinet paper,
whether the regulatory proposal(s) in the paper are consistent with the
expectations in the Government Statement on Regulation (The Treasury (NZ)
2009, pp. 3, 26).
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
35
10.2
Review of regulation
There are a number of procedures in place, or currently being contemplated, for
the review of regulation in NZ.
Post-implementation review
‘Significant’ regulatory proposals (proposals that would meet the criteria for
quality assurance assessment by RIAT) that do not meet the NZ Government’s
RIA requirements but are agreed to by Cabinet, are subject to
post-implementation review. This includes proposals where a RIS was required
but not prepared and where a RIS was inadequate. The nature and timing of the
post-implementation review would be agreed to by the lead agency, in
consultation with Treasury and signed off by the responsible Minister, after
discussions with the Minister of Finance and Minister for Regulatory Reform
(The Treasury (NZ) 2009, p. 29; Cabinet Office (NZ) 2010).
Reviews of major regulatory regimes for 2009 and 2010
The NZ Government’s RRP involves the rolling ex-post review of major
regulations defined as ‘significant and pervasive’. The regulations identified as in
need of review and included in the RRP, were selected based on their likely
impact on productivity, election commitments, advice from officials and
feedback from the public (Cabinet Office (NZ) 2009a, p. 1; Office of the
Minister of Finance (NZ) 2009, pp. 1-2). Reviews commenced so far include:











Building Act
Electricity institutional arrangements
Election commitments around the Employment Relations Act
Foreshore and Seabed Act
Holidays Act
Overseas Investment Act
Resource Management Act
Telecommunications Act
Weathertight Homes Resolution Services Act
Climate Change Response Act
Dairy Industry Restructuring (Raw Milk) Regulations (The Treasury (NZ)
2010c).
Removal of inefficient and superfluous regulation
The RRP also involves a commitment to ‘identify and remove inefficient and
superfluous regulation’. The Regulatory Improvement Bill 298-2 (2008), which is
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
36
still being considered by the NZ Parliament, ‘addresses regulatory duplications,
gaps, administrative errors, and inconsistencies between different pieces of
legislation’ (Cabinet Office (NZ) 2009b, p. 1). It proposes to remove and amend
provisions in nine pieces of major primary legislation, including: the Companies
Act 1993 (NZ), the Fisheries Act 1996 (NZ) and the Gas Act 1992 (NZ).
The NZ Cabinet has also agreed that an omnibus Regulatory Reform Bill be
considered on an annual basis (Cabinet Office (NZ) 2009b, p. 4), to ensure that
‘the existing body of legislation is easy to use, up to date, and fit for purpose’
(Regulatory Reform (Repeals) Bill 249-1 (2010) Explanatory Note, p. 1). The
Regulatory Reform (Repeals) Bill 249-1 (2010), currently being debated, proposes
the repeal of 31 Acts which have been identified as either spent or limited in
effect and out of date.
Proposed review clauses in the Regulatory Responsibility Bill
The Regulatory Responsibility Bill 71-1 (2006) was initially introduced into the
NZ Parliament as a private member’s Bill on the 2 August 2006, its purpose
being:
to improve parliamentary laws and regulations in New Zealand by specifying
principles of responsible regulatory management and by applying reporting
requirements to the Crown with respect to the principles … both at the time
that Acts and regulations are made and at regular intervals subsequently.
(Regulatory Responsibility Bill 71-1 (2006) Explanatory Note, pp. 1-2)
In 2007 and 2008, the Bill was considered by the Commerce Committee of the
NZ Parliament. The Commerce Committee concluded that there was insufficient
information to approve the Bill and recommended that a taskforce be established
to further examine the matter (Office of the Minister of Finance (NZ) & Office
of the Minister for Regulatory Reform (NZ) 2009). In 2009, the Regulatory
Responsibility Taskforce endorsed a version of the Bill that contained two means
for reviewing regulation.9 Clause 12 proposed empowering the judiciary to
declare legislation (primary and secondary) as incompatible with the Principles of
Responsible Regulation. Clause 16 proposed requiring every public entity to ‘use
its best endeavours to regularly review legislation that it administers for
compatibility with the principles’ (Regulatory Responsibility Taskforce 2009,
p. 31).
The NZ regulatory system currently contains no provision for the systematic review of Acts and/or
regulations, such as the through the automatic sunsetting of legislation.
9
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
37
10.3
Regulatory developments in New Zealand
Government Statement on Regulation: Better Regulation, Less
Regulation
The Government Statement on Regulation, released on 17 August 2009, is the
NZ Government’s key policy statement on regulatory issues and an indicator of
future directions for reform. The Statement declares that:
better regulation, and less regulation, is essential to assist New Zealand to
become more internationally competitive and a more attractive place to live and
do business. (English & Hide 2009, p. 1)
The Statement commits the NZ Government to ensuring new regulation is
subject to sufficient scrutiny and that existing regulation is reviewed, to identify
‘unnecessary, ineffective and excessively costly’ provisions. The Statement also
foreshadows instituting changes to regulatory culture, with an emphasis on;
educating and improving the accountability of government agencies and
increasing consultation, the rigorous analysis of regulatory proposals and the
integration of RIA into policy development (English & Hide 2009).
Consultation on the draft Regulatory Responsibility Bill
As discussed above in relation to the review of regulation, the Regulatory
Responsibility Taskforce was established in April 2009 to investigate and report
on the then existing Regulatory Responsibility Bill (Office of the Minister of
Finance (NZ) & Office of the Minister for Regulatory Reform (NZ) 2009, p. 1).
The Report of the Regulatory Responsibility Taskforce (30 September 2009),
including the revised version of the Bill, was publicly released on 29 October
2009. The Taskforce stated that it was satisfied on two main issues:
first, as matters of both principle and practicability, there can and should be less
legislation and better legislation; and second, the existing constitutional and
operational framework cannot be expected to deliver those outcomes without
significant changes. (Regulatory Responsibility Taskforce 2009, p. 8)
The NZ Government has since sought public submissions on the
recommendations and redrafted Bill, endorsed by the Taskforce. As part of this
process, the Minister for Regulatory Reform released a series of questions in
relation to the Report and Bill, on 28 June 2010, for public comment.
Submissions on the draft Regulatory Responsibility Bill closed on the 27 August
2010. The NZ Government is considering the Taskforce Report and redrafted
Bill, in light of submissions received (The Treasury (NZ) 2010b).
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
38
Box 5
Summary of recommendations by the
Regulatory Responsibility Taskforce (NZ)
The Report of the Regulatory Responsibility Taskforce (30 September 2009)
recommended that the NZ Regulatory Responsibility Bill contain key provisions that
would:





set out the principles of responsible regulation that are designed to accord with
and reflect broadly accepted principles of good legislation, incompatibility with
which is justified only to the extent that it is reasonable and can be
demonstrably justified in a free and democratic society
require those proposing and creating legislation to certify whether the legislation
is compatible with those principles, and whether any incompatibility is justified
provide for a new role for the courts to make declarations of incompatibility
with the specified principles of the Bill, but otherwise explicitly exclude any
power to make injunctive or compensatory orders on the basis of the Bill’s
specified principles
require the courts to interpret legislation consistently with the Bill’s specified
principles if possible
require every public entity to use its best endeavours to regularly review all
legislation that it administers for compatibility with the principles, and provide
for the Minster with responsibility for the Bill to issue guidelines to public
entities on criteria to be used and the steps to be taken in ensuring legislation is
regularly reviewed.
Source: Regulatory Responsibility Taskforce 2009, p.6.
REGULATION IN OTHER JURISDICTIONS: AUSTRALIA AND NEW ZEALAND
39
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