What to do about NZ’s regulation failures?
A string of failures over the past 25 years has drawn attention to the quality of regulatory practice in New Zealand.
These include the Cave Creek disaster of 1995, the leaking homes crisis of the late 1990s and the early 2000s, the Pike River mine disaster in 2010, the grounding of the containership MV Rena and resulting oil spill in 2011, and most recently, the discovery of nearly nine years of regulatory failure within the New Zealand Transport Agency, including enforcement of Warrant of Fitness providers.
In 2014, the Productivity Commission highlighted shortcomings in New Zealand’s vast and complicated regulatory systems. Necessary quality checks of new and existing regulations are under strain and keeping the regulations on the books relevant and uniformly applied is a persistent challenge. The Commission also called for a change of how regulations are put into practice, in particular calling for better training of those individuals responsible for applying them, from frontline workers all the way to the very top of regulatory organisations.
To their credit, in 2015 a group of practitioners at all levels of the New Zealand regulatory system joined forces to establish the Government Regulatory Practice Initiative (G-REG). G-REG is a network of central and local government regulatory agencies charged with providing much needed leadership and research in regulatory practice initiatives. G-REG’s activities focus on improving leadership, culture, regulatory practice and workforce capability in regulatory organisations and systems.
G-REG has also been active in attracting international regulatory scholarship to New Zealand by promoting the Chair in Regulatory Practice at Victoria University of Wellington. As first holder of the Chair, I will give my inaugural public lecture later today. My discussion of the history of regulatory practice will highlight some of the key challenges regulators in New Zealand and elsewhere face and how they can be overcome.
From the populist tide sweeping across the United States to nationalist movements in Europe, much of the angst being acted out in present-day societies can be traced back to a deep and pernicious suspicion of regulation. But this suspicion is not warranted. As Chair in Regulatory Practice, I seek to increase regulatory literacy and share a more nuanced story about regulation.
An example of this is my Regulatory Frontlines blog, which highlights that proper regulation is not about restrictions and limitations, but rather about providing equal opportunity and protecting individuals from harm. The blog showcases regulatory success stories from New Zealand and elsewhere as examples of how regulation can be done well.
Even when regulation goes well, it still faces harsh scrutiny from government officials and private individuals alike. Deep-seated scepticism often results in regulators having to defend themselves and their budgets on a regular basis. Regulators are expected to justify the costs of regulation when things are calm and justify their actions when regulatory oversight fails. It is a classic Catch-22 and one that makes it exceptionally difficult for regulators to be seen in a positive light.
A solution here would be better storytelling by regulators. Strategically selected and shared stories about regulatory success can have wide ripple effects. But in order to do this, it is vital for regulators to stay on top of their performance data. When things go well, performance data can illustrate the value in real dollars that regulators add to society. And when things go poorly, performance data can help identify exactly where things went. Unfortunately, regulators in New Zealand and elsewhere are notoriously bad in keeping track of their performance data, putting themselves at a disadvantage when the criticism starts to flow.
Another big hurdle to effective regulatory practice is a dearth of evidence-based best practices. Much of what we know about regulation - its development, implementation, practice and outcomes - comes from a relatively small number of real-world examples. Throughout the history of regulation, this modest knowledge base has been given too much credit and some regulatory solutions have seen more following than warranted by the scientific evidence.
One of the most followed books in the canon of regulatory literature, Responsive Regulation, is cited close to 5000 times by my fellow academics, but only a handful of studies actually seek to understand its performance when applied in real-world settings. This limited empirical knowledge base is pervasive in regulatory scholarship.
This is problematic. If the knowledge base is poor, how can we build strong regulatory systems on top of it? A core task for me as Chair in Regulatory Practice is therefore to map, explore and interrogate that knowledge base.
But perhaps the most important ingredient for regulatory success is to have a right perspective on regulatory innovation and what it can and cannot achieve in solving regulatory failures. The common denominator of four millennia of regulatory practice is an eagerness for innovation. Yet academics and regulatory practitioners read too much regarding the ‘deliberate’ processes of regulatory innovation and too little regarding the ‘non-deliberate’ day-to-day changing of regulatory practice within the discretionary space regulators often have.
Thus, rather than reforming the machinery-of-government side of regulation - as basically all reforms up to the present have sought to do - much more consideration must be paid to how regulatory practitioners apply regulation on the frontlines. A focus on the opportunities and constraints of the use of discretion in regulatory practice will force us to think about what we expect of those in power when designing and implementing regulatory regimes.
The major paradigm shifts we have observed over the past decades in regulatory governance have all resulted from very gradual day-to-day change at the level of practice; the typical pragmatic solutions chosen at the regulatory frontlines. The results of these minor changes were, ultimately, recognised by academics who have distilled regulatory models that help move us forward.
The regulatory frontlines are the largest regulatory action laboratory we have. We need to systematically observe what is happening there, find what we can learn, and then question how we can scale the most promising practices. This is a task I wholeheartedly embrace.
Professor Jeroen van der Heijden’s inaugural public lecture is on Tuesday October 22, 6pm, Lecture Theatre 1, Government Buildings, Pipitea campus, Victoria University of Wellington, 55 Lambton Quay.