Download Kane Patena

Evaluating
Enforcement
Decisions –
Maintaining regulatory
credibility
Wellington, November 2014
Regulatory values
All regulatory regimes,
designed and
implemented well, can
deliver economic,
cultural, social and
environmental benefits
as well as protecting
communities from harm
What does it take?
It requires:
• Robust and sound policy
settings
• Executing delivery of
regulatory services
effectively
• Systematic re-evaluation
of the regulatory
landscape and activities
Key risks regulators face with enforcement
•
Decide to take action but perception that:
–
–
–
–
•
Inappropriate/misuse use of powers
Bureaucratic
Over the top/knee-jerk reaction
Wasting tax/rate payers’ money
Decide not to take action but perception that:
–
–
–
Regulator asleep at the wheel
Not doing enough to protect community
Targeting the wrong things
The need to exercise discretion properly
• To intervene, or not to intervene?
–
–
–
–
–
Judicial criticism
Public scrutiny (appropriate use of public funds)
Reputational credibility
Financial cost (for little/no value)
Employee engagement
KCDC case example
• Otaki residents engaged contractor to
cut some native trees on property in
August 2013
• Decision to prosecute made following
independent legal advice
• Charges filed in December 2013
• Judge observes prosecution
effectively trivial and prosecution has
been overkill
KCDC case example
• Independent review recommendations:
– Defendants should be provided with an opportunity to
explain/respond during investigation
– Clear and distinct assessment should be made on whether it is in the
public interest
• Alternative to prosecution
• More than one person involved (not CEO/Councillors) and should meet
– Councillors should be advised of persons charged and nature of
charges (and nothing more)
– Council should adopt strict policy of miminising public comment
Getting it right
• Effective policy
– Linked to regulatory framework, policies and
objectives
• Robust processes
• Right capability
• Systematic review and evaluation process
Strategy and Direction
Benchmarks
Model Regulatory Framework*
Regulatory
Principles
Governance
Principles
Organisational
Objectives
Sector/Stakeholder
Engagement
Regulatory
Policy
Strategic
Regulatory Plan
Annual
Regulatory Plan
Intelligence &
Risk Analysis
Delivery
Controls
Treatment/
Response
Operational
Policy
Procedures &
Guidelines
Tools
*Model Regulatory Framework we use to assess regulatory maturity and performance of
regulatory institutions
Capability
Evaluating Regulatory Enforcement Decisions
• In relation to a regulatory agency, its a decision to
engage a statutory/legal process to compel a person(s)
to act/abstain from something for the purposes of
achieving regulatory objectives
Information
and
intelligence
Implement
Investigate
Complaints
managemen
t
Outcome
Regulatory
Enforcement
Decision
– Systematic evaluation of the process used at this
critical decision point
Evaluation criteria
•
Assessment of available evidence
•
Relevant policy factors considered
•
Irrelevant policy factors disregarded
•
Consideration of regulatory purpose
•
Follows procedural requirements
Can we?
Should we?
How we get there?
Benefit of evaluation
• Provide independent quality assurance
– Demonstrate robustness and integrity of decision making
– Demonstrate consistency and continuity of decision-making
• Educative tool for continuous improvement
– Future focused evaluation - it’s about how we can be better
regulators
– Prompts regulators to survey the regulatory landscape, which
inevitably changes over time (particularly if combined with
strategic evaluation and planning cycles)
• Shift towards best practice
For further information contact:
Kane Patena
Partner
Compliance Advisory and Assurance
[email protected]
DDI: +64 4 914 0540
www.meredithconnell.co.nz