Inconsistency
Consistency in the interpretation and implementation of regulations is a desirable yet problematic feature of any regulatory environment. In order to operate with confidence, businesses require a reasonable degree of certainty, especially when considering making investments. At the same time, businesses often want approaches that are tailor-made to their circumstances.
Both consistency and flexibility have benefits, costs and risks. If substantial variation – between regulatory regimes, agencies or geographical areas – does not seem to be accompanied by clear justification, "fairness" can be seen to suffer. Where approaches appear inconsistent, the level of voluntary compliance is likely to be lower. Of course, a distinction needs to be made between poor performance in the application of regulations leading to inconsistency, and legitimate geographic variations such as District Planning provisions which are designed to reflect local circumstances.
Summary of the issues:
When varying interpretations result from the interface of different regulatory systems, businesses "feel powerless" and "that they are being required to reinvent the wheel".
Local government regulators were most cited by businesses that mentioned inconsistency as a problem. Interviewees whose businesses operated under the jurisdiction of more than one local body particularly noted the effects of inconsistent interpretations. Food safety and wheelchair access were cited as standout areas of inconsistency between local authorities.
General concerns around inconsistency included the lack of a "level playing field" for businesses. This results in frustration at treatment that appears to either discriminate against some players or disproportionately benefit some at others' expense. The RMA was a particular source of concern in this regard.
Another general area of inconsistency noted by interviewees was the payment regimes used by different departments. Variations between such processes, for example around method and frequency of payment, can catch businesses out and lead to unnecessary penalties.
Businesses also cited certain specific regulatory frameworks that could benefit from a greater degree of consistency. Examples included immigration and liquor licensing.
How business sees it:
Inconsistent implementation by territorial authorities/District Licensing Authorities has created inconsistent standards in areas such as special licences under the Sale of Liquor Act and food safety and hygiene. [hospitality]
Local Authorities changing requirements after decisions made: e.g. Despite having approved the basement installation of a water meter, the City Council then insisted that it be moved to an area accessible from the street. [hospitality]
A council inspector deemed that a dry goods storeroom needed its roof lined. The business was later made to drop the room's ceiling, to protect against rodents. [wine]
The local authority's interpretation of the RMA enabled one person to stall a resource consent application and constrain business development. [wine]
Ratings given for kitchen inspections seem to vary by inspector and the time of day. [hospitality]
Slide-out shelves in counters (for wheelchair users) were required in Wellington and Auckland but not elsewhere. [hospitality]
The interface issues between the Shop Trading Hours Act, Sale of Liquor Act and Holidays Act and the problem related to trading restrictions during Easter and the status of Easter Sunday under the Holidays Act create inconsistencies for business and are unnecessary and onerous. [all sectors]
The multiple regimes for export certification and assurance schemes can confuse verification agencies. [horticulture]
It is harder for smaller businesses to gain immigration permits for workers. [horticulture]
Biosecurity officials appear to adopt a zero tolerance standard when the industry wants to import new plant material. [wine]
Insurance companies require that deadlocks are used but the Fire Service prohibits their use as they restrict people's ability to leave buildings during a fire. [hospitality]
Companies whose activities fall under the Consumer Credit Contracts Act 2003 and the Secondhand Dealers and Pawnbrokers Act 2004 are uncertain which to follow. The two acts are inconsistent around allowing firms to charge interest or fees. [retail]
Storage regulations for compressed butane gas containers do not differentiate for size of place, which limits large retailers' ability to cope with demand. [retail]
Government initiatives to address inconsistencies include:
The Ministry for the Environment is behind the Quality Planning Website www.qualityplanning.org.nz that is aimed specifically at those administering the RMA. Development of guidance specifically relating to the wine industry is under investigation at present.
The Ministry for the Environment is also addressing consistency in the decision-making process through changes to the RMA requiring RMA decision-makers to be accredited. Training focuses on interpreting the legislation, understanding and running hearings appropriately, and associated matters such as recognising and dealing with conflicts of interest.
The New Zealand Customs Service will investigate ways that limitations on storage flexibility can be overcome without reducing clarity about excise obligations or assurance over Crown revenue.
Cabinet has instructed the Department of Labour and the Ministry of Justice to report back on possible solutions to the inconsistencies that arise on Easter Weekend with the operation of the Shop Trading Hours Act, the Sale of Liquor Act and the Holidays Act.
The Department of Labour is working on a new business model in the area of immigration, which would help with consistency and timeliness, and increase the use of technology for both immigration officers and customers.
The Ministry of Consumer Affairs is considering ways to bring about consistency between the Consumer Credit Contracts Act 2003 and the Secondhand Dealers and Pawnbrokers Act 2004.
Biosecurity New Zealand:
- has updated exprt standards providing consistency with the New Zealand Food Safety Authority on the requirements for the Independent Verification Agencies (IVA) accreditation; and
- is moving away from an internal accreditation process to requiring accreditation to the International Organisation for Standardisation in the same way the New Zealand Food Safety Authority does.
The New Zealand Food Safety Authority is working on proposals for new food legislation as part of an extensive Domestic Food Review (DFR). The DFR is intended to produce a new regulatory system to replace the Food Act 1981 and the Food Hygiene Regulations 1974 which is expected to provide greater consistency across the country. Implementation is expected to begin in late 2007.
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