Kia ora koutou, nau mai, haere mai and welcome to this panel discussion today on effective implementation of regulation. Now many of you online will be, will have been part of policy design projects, regulatory design projects, but you might not have worked on the implementation phase. Now implementation can be easily overlooked when the focus and the pressure is all on designing and developing new policy and potential new regulation.
So today we are going to discuss some of the causes of when implementation doesn't go right, what we see in everyday practise, and what we get called in by clients to help them address. So we've specifically pulled together a panel today from Ellen and Clark, who bring not just a wealth of experience on the topic, but each of the panel members today brings a unique lens to the conversation. To my left is Alan Carpenter.
Now he's usually attached to really complex policy projects, and he's the one on the team that always reminds us to take a step back, think about the strategic intent, and really look at the bigger picture. Jason Carpenter, apologies, apologies, hopefully I'll get the next one right, you are my colleagues. To Jason's left is Emily Black.
Now she's got experience as a government lawyer, and she brings her knowledge and passion about the legal aspects of policy implementation. And she'll be talking about some of the policy risks that are also, some of the legal risks that are also involved in policy implementation. And at the end of the table is Rob Smith, and he has led many policy implementation projects and has spent many years training staff that are accountable for implementing regulation.
And myself, I'm Charlene Harvey, and I'll be facilitating the conversation today. Now I'm usually in the position of being the recipient of policy and having to implement it, so I want to keep these policy guys really honest today in the conversation. Before we kick off onto the questions, are there any specific remarks you'd want to make around this topic? How about I start? What I'm about to say is not sort of groundbreaking, but it's realistic, and I think with a lot of these projects, some of the challenges are not new, and they're also quite common across a range of agencies.
So some of the things we may talk about will resonate with you, some may not. But the other sort of upfront thing is the level of work and effort it takes even to implement a simple regulation. So it's real easy to sort of pass a, not real easy, but to pass a law and then sort of take the foot off the pedal.
A lot of effort goes into even simple regulatory changes. And at this stage, I just want to tip my hat to the Public Service Act as well. The concept of stewardship is embedded in that Act, and legislation and stewardship of legislation and regulations is a key part of public servants' life now.
And it's real, real clear with all the guidance that comes out about stewardship that in the regulatory context, it's whole of life. So we're not talking about designing something and forgetting about it. There's a real importance given to effectively implementing legislation.
And that guidance goes all the way down right to the front lines. There's LDAC, there's Treasury, there's policy textbooks. They're all really, really clear on the need for good planning for implementation, but I think one of the key things to take away from that is just that it is really hard.
But the reason so many words have been spent on it is that it's complex. You're shifting out of a legislative arena into real human reactions, and it's just always going to be difficult. Just keeping that front and centre as well, always going to be hard no matter what.
Yeah, absolutely. And I think that goes to one of the key things that you can do to do it well is to engage with stakeholders early and often. And that's internal stakeholders and external stakeholders.
Recognising that that's harder than it sounds, but the more engagement you have the earlier on, then the easier it makes the implementation down the track. Fantastic. Nice way to set the scene in terms of this conversation.
How about each of you pick a couple of the common challenges that are associated with regulatory implementation? So, Foe, I think one of the key things is when you have a piece of legislation or new regulations, you can be really focused on implementing the regulations, the legislation, and you can run the risk of losing sight of the broader context of the system that you're operating in. So, one of the key challenges that we see a lot is just keeping that real laser focus on the risks that the whole legislation and the whole regulatory framework was set up to respond to. And so, when you're going through the process of setting the legislation, there was one context, the thing didn't exist.
Once you pass over into legislation or regulatory, the whole framework is going to change. Your context will change. A new regulator may have been set up.
So, you just need to keep that real focus on why are you here, what are you doing, and why are you doing it. And it's almost always because of something to do with New Zealanders, like the legislation isn't the point. It's the mechanism that's being used to manage a risk or achieve an outcome.
And so, just always taking that step back. And I think linked to that is around the senior leadership buy-in, and there can be a focus on monitoring and making sure that your KPIs are hit and you'll have these legislative deadlines. And so, it's just having a way to have that conversation to bring senior leadership along, because you need to have that right from the top strategy sitting all the way down to keep that focus on the broader framework and the broader system.
Yeah. And one of the other challenges that we see quite often is that uncertainty or a lack of clarity. Sometimes people aren't sure why the regulation was made in the first place, what's expected of them, or the consequences of not complying.
And usually, that happens when there's a lack of engagement or a lack of communication or a lack of buy-in from the senior leaders, and so people are a bit confused. Something when I was practising as a lawyer, we used to hear quite often was, oh, we'll figure out how it looks in practise later. Dreaded hearing that, because usually you don't figure out how it works in practise later and then the poor people trying to implement it aren't sure what they're supposed to be doing.
We used to think you were on the right track if you could clearly, concisely, and simply explain to your drafter how it was going to look down the track, because that meant that you could then clearly, concisely, and simply explain it to the people who were then going to implement. Yeah, I've got a couple here that are probably a wee bit boring actually, but very, very critical. One of the things I see quite a bit of is, I'll go in to help support someone implement a regulation, I'll go, where's your plan, where's your plan to implement, or we don't have one, or an answer like that, or it's a token thing.
A lack of planning in the design phase is just setting yourself up to fail almost. Might not sound exciting, but good, good planning where you walk through all the key things you want to do during implementation is critical. And the other one that I quite often see is a bit of insufficient resourcing.
So, in the old days, the joke used to be in the policy sector that, what are we going to do to evaluate it? Let's sort of stick 20 grand in an evaluation at the end of the project sort of thing. And they're starting to sort of see over time the same sort of attitude with implementation. Let's focus on the design and let's just hand it over or she'll be right.
And so the resourcing, whether that's people to do the work or realistic budget for an implementation phase is just critical. So that planning and implementation don't often go together. Following on from that, so what does it look like when it's not implemented effectively? So how does planning, what does bad planning look like? Well to stick to the stuff I was just talking about before, planning and resourcing, quite often what will manifest are symptoms such as a scramble to get things done late.
So you've passed a new law and we suddenly thought, oh geez, we should produce some guidance here and there's a rush at the end to get the guidance developed or to think of training or the comms aren't quite right or something like that. So that scramble is a big factor. Under-appreciating the amount of work to do an implementation deliverable.
For example, a guidance document can be quite simple but can also be quite complicated depending on the change in question and they can't be whipped up overnight. And so getting that sort of implementation support done, if possible, while the regulation is being developed. But sometimes the key activities to help implement take time and effort.
A couple of other ones I've got here. Without good planning you can miss the chance to head things off at the pass. So good planning, you might say, hey, we've got to talk to so and so, then it prompts you to go and talk to so and so and they could actually give you some really good stuff that may not have even come up during the consultation that you can actually sort of, okay, why don't we make a simple tweak here and we can take that pain away from that person.
Inconsistent decision making, say for example if you're setting up a licencing scheme and the application's coming in and you haven't worked through what are your criteria, what are your processes, then it can be reflected in sort of inconsistent decision making. And another obvious one is a chance to standardise processes. So if you're setting up a new regulation and you know that there's some administrative work to follow that's going to go on, you can set up some quite standardised processes to make sure that things are done the same way.
So from a planning point of view, there are some of the symptoms I see from a not quite getting the budget right. It can be a focus on an initial budget but not factoring in that, hey guys, this is going to be going on for a long time. Again, the licencing example, you might get some applications granted already for licences but then a couple of years later you've got to renew them.
So having that capacity to be able to be in there for the long haul. Not enough bums on the seat, so the classic case of, hey, we've got a new rule to enforce but we haven't quite got the people to help implement it. And the one that Jason mentioned before about even if we might have enough doers, do we have the top cover in the new regulation and the system to be able to sort of front things when things don't quite go right.
So there are some symptoms. What about you, Emily? How have you seen some of those challenges start to manifest when things don't go well in terms of the implementation side? Yeah, definitely seen that risk of people feeling disengaged from the process and that usually comes from not having the capacity or the capability to talk to the people who it affects. Also seen a risk of not testing the legislative scenarios, so this is a classic lawyer thing to say, but if you can get your statutory interpretation out of the way before you actually are forced to do it, then it means you can test all those scenarios and then when you're trying to implement your legislation, you can answer the questions that people are asking you rather than having to always be on the back foot.
One thing I'd shout out to is the resource from Crime Law, the Judge Over Your Shoulder. So that's an excellent resource if you have any decision making powers built into your regulatory regime, so what you just talked about, Rob. Just mitigating that risk of judicial review, it's so important and it is actually quite easily forgotten.
It sounds obvious, but it gets forgotten quite easily. I think to take a step back again for both of those, I completely agree with all of that. It's that process of when you're designing the regulatory intervention is to have that really clear intervention logic and when that intervention logic or theory of change isn't there about why you're doing it, what you're doing, you're going to really struggle to get the comms out.
So if you can have that design up front around this is what we're doing, this is the activities in each year, these are the broad outcomes that we're trying to achieve that then links into the system change, you can then take your stakeholders on the journey and the risk of getting too focused on the legislation, which is completely understandable, because you have to go through the process, the legislation has to be up to scratch, it has to tick all the boxes of making sure that it's enforceable and all those things. But once you've got that through, you need to have already been thinking around the intervention logic for what you're going to do, so when you have a licencing scheme, you need to have that broader context of why we're licencing, what are we trying to achieve, because then all of your forms, your engagement will flow out of that, well I'm trying to stop this happening, I'm trying to make sure that we have this information and having that logic really clear from the start can be one of the big things. And I think linked to that is that there's always a tension in legislation between prescription and enabling, and just being aware of the implications of those decisions, there can be really good reasons for really prescriptive legislation, and there can be really great reasons for enabling, and just being really clear on why you're setting up either of those regimes, because they'll each have different sets of challenges for the implementers.
If it's too prescriptive and it's not quite the right thing, you'll get really frustrated operational staff feeling like they have to do something because the legislation required it. And similarly, if you're too enabling and you haven't got enough signposts about what you're trying to do, you'll have people who aren't quite sure what they're doing and why they're doing it, so it's just, again, it's always hard, it's just trying to be clear about what you're doing and why you're doing it, and I think it's coming back to that why, and that theory of change or intervention logic right from the start. Absolutely, yeah, and you'll always have a purpose in your legislation, but it's about making sure that everyone has a collective understanding of the purpose, yeah.
And I think even the reason you've chosen to do legislation is because that was the only way to achieve the outcomes and manage the risks, so there's still a point of having legislation in a bigger system to manage a risk that couldn't be managed through voluntary compliance or any of the other things that you would have looked at when you did the RIS, so it's almost just going back to that analysis that you would have had to do already and just really making it front and present through the implementation phase as well. Now, usually it sounds like, you know, when you're designing policy, you've got enough time to effectively, and if you're doing it right and you're pulling the right plans in place, Rob, you've got the time to effectively plan out your plan for implementation, but what happens if you don't have the time? And, you know, coming out of COVID, we're all, you know, doing lessons learned around COVID, and the COVID space was so crazy because we were doing policy design at the same time as policy implementation, so what did we learn from that experience? Because it can be done. Yeah, it definitely can be done, so I worked in a legal capacity and a policy capacity in the COVID response, and there were a couple of things that did go really, really well that I've reflected on and thought, yeah, nice, that was a good implementation of regulation at speed, so the comms that went out, they were really, really clear, they were regular, and they posed scenarios for people in a way that they understood, not all the time, but it worked best when they did that, and there were also different styles of communications for different audiences, and I think that was really important, and I think we're seeing that a lot with regulatory implementation kind of moving forward, different mediums, different ways of talking, trying to connect with the youths, you know, and the other one was cross-government coordination.
It was awesome how well a bunch of representatives from government agencies worked together, and that was at a whole bunch of different levels, so when I was working as a government lawyer, we had a meeting weekly with the other government lawyers who were doing the same stuff, and that information sharing and gathering the knowledge, understanding the pitfalls of each other's literature systems was so invaluable. And I think it was a microcosm of the policy process, and that the speed of change was outrageous, like new information coming to light constantly, like making sure we're collecting the right data to then respond to, but that's the same across all regulatory systems, like the context will be constantly shifting. I think the COVID was an interesting example of how you can sort of keep the context front and centre.
If your messaging is clear, if the rationale for what you're doing is clear, you can have then ways of bringing everyone together to work towards that common purpose, so it's that agility is possible, it's just hard, but if you have the right comms and the right logic behind it, you can put things in place to do it. I'll just speak from the other side here. There were quite a few wobbles in COVID, I'm sure that a lot of the people listening would say, so we're not saying that was perfect by any stretch, but it's just that it's hard enough in a normal business as usual time, but to get that implementation and design to work in tandem in the COVID space was impossible, it was like a law would change overnight, you'd have to draft the guidance to go out at the same time, but if someone made the last minute change, then you've got to go and change the guidance, all of that sort of stuff, so incredibly hard and challenging, and there were wobbles, let's be honest, and sometimes quite significant wobbles, but it just goes to show how hard this can be in a BAU time, let alone COVID.
So we've talked about what some of the things we start to see in practise when things don't go well, so jumping to the other side of the coin, so what are some of the features that you guys see every day where policy implementation has gone really well? Yeah, let's talk about the good stuff. I'm saying the same thing, I know, I know, but really regular and clear communications. Sometimes you have to be a bit bold with it as well, and a little bit brave, so you won't always get it right, and we see that over and over again in the work that we do, is sometimes you don't get it right with your engagement or the way that you're communicating, but it's all about having that learning culture, so if you don't get it right the first time, you're learning from that and you're going again, and you're taking the learnings from the engagement so that you can make the implementation better and better as you go, and the other one is kind of, sometimes you have to deviate from the language of the law, which can be, I know, shock horror, it can be harder than you think, because it's safe using the language of the law, because you know that that is exactly what your legislation says, but it's really important to have that plain language that is still legally accurate, so something that, you know, we used to do a lot in the COVID space was have the legislation, writing the guidance, and then it'd be a back and forth with kind of legal policy and comms to just get that right, accessible language, that was legally accurate, and the bit that we didn't always get right was testing it with the audience, not enough time, a lot of people out in the, at the border for example, that didn't always get the chance, why didn't you pass this to me beforehand, we didn't have enough time, so it's not excusing it, but that actually ties into that, having those multiple feedback mechanisms, so you have the feedback loops coming in, which is again, back to that learning culture, making sure you have connections, so you're getting the feedback, learning from it, taking something new, and going again.
That often requires senior leadership to have buy-in, that that is the approach we're taking, and it will take resources, and it will take time to have those, have those engagements, build those relationships, and it's so rewarding when you do it, but it's a big, a complex thing to look down the barrel of when you're doing your workforce planning, and you're saying, well I'm going to commit how much resource to engagement, but you know, there is examples of it working really well, so it's just, you know, finding that balance between what you have to do, and what will make the work better. Can I give one example of the engagement thing that you said before, it was, because it's a simple, and if Sally from health is here, she'll recognise this, it was controls that had to be introduced about 10 years ago that people used to scoff at a wee bit around laser pointers, because people were shining them into planes, and things like that, so if something could go wrong, pretty serious, and one of the sort of things at, just before implementation, we thought when we put controls on these, import controls these ones were, was hey, has anyone talked to customs field staff? We might have talked to their policy people, and their customs policy people are great talking to their on the ground people, but if we've got to head around some of the technical side of it, do we need to go out and talk to them? And this was around controls on laser pointers, which look mysteriously like a torch, so can you imagine what would happen if a shipment of torches came in, and all of a sudden a customs officer said, oh do I stop these or not? How do you tell the difference, when they can look identical sort of thing? And so what we did, is we went out to the mail centre, or the Christchurch customs place, and actually sat down with them, and took examples of these products along, and said these are the things we want to stop, these are why we want to stop them, and here's how to tell the difference between a torch and a laser pointer. Sounds ridiculously simple, but it took effort to get there, and engage with those people, and you know, for a simple change, so you imagine what it would take for a bigger change like that.
Yeah, and I think when the intervention logic for something like that is quite simple, you know, lasers are bad, we'll stop them at the border, here's the mechanism to stop them, but like on the bigger more complex regulations, you know, it's like, it's that same principle though, of if you're really clear about what risk you're trying to manage, you know, people shining lasers into pilots eyes and things, and you have a clear mechanism to stop it, it's the same principle, just extrapolated out into much more complex scenarios, but the more you can have, whether it's a visual one, or a strategic document that sets out what you're doing, and why you're doing it, and what the steps are, and what you expect to happen, the better it will be, and you can start then like leveraging the monitoring and compliance, which is obviously such a crucial part, if you have that, we're doing this, this is the area we're going to intervene, this is what, you know, good would look like, we can start tracking how we're having an impact, and that the legislation's having the agreed impact, and so just having that sort of, that time and effort to actually planning that out, and doing the theory of change and intervention logic work, a strategy that links the resources through to what you're actually doing, it just helps everything run so much more smoothly, it helps your comms, it helps to monitor, and it just makes everything work a lot better. You're starting to see a lot of the language that has been used traditionally in evaluation sort of practise, used in the sort of policy, that this concept of intervention logic, walking it through, I used to always used to think it was something that evaluators do, but it's really, really important here in the policy context as well, and so you're starting to see some of these core disciplines and techniques can be used across the policy cycle, whether it be design, evaluation, implementation, or whatever. In the strategy space, we call it the golden thread, you know, so I think what you're saying is that that alignment between what's the outcome we really want to achieve, and then what is the natural set of logical steps through to implementation to achieve that original outcome, and it's making that visible, getting everyone around the same page, and it sounds quite powerful in the policy space.
And one of the, when you do it, when you do set it up like that, is you can bring in the non-regulatory and the influence parts as well, so you're, you know, we talked earlier about being too focused on the regulation, which is, you know, is important, can be a really good thing, but there will be other things happening, there will be other stakeholders, there'll be other people that you can leverage off to achieve that outcome, and so you talk about when it works well, like, you know, having champions from the community front your implementation, bringing them on the journey so that from the start they can see that you've listened to their problems, and then they're now happy to roll out as part of the champion for the, this is what the behaviour change we're looking for, and so if you can bring them on the journey, you know, you can get some really strong allies in that space if they understand the rationale for the change. Yeah, I know in some of the conversations we've had in terms of some of the agencies and clients that we've been working with, there are haas that they have when you start to map out what's the true ecosystem that they, that they operate in, and while their mandate might be a single part of it, to your point Jason, there's a whole lot of dependencies, there's a whole lot of flow-on effects that would actually help them make it, make their role more efficient, help get voluntary compliance if they're thinking from an ecosystem point of view, and I think that ties in with your point Rob, around thinking from a regulatory stewardship point of view, again, how do you take the whole of the system view to really make a difference? Yeah, and with stewardship, you're looking after something for the benefit of others, so treating legislation like a, like an asset that needs to be maintained and looked after all the time, which should be an asset, good regulation. In terms of the implementation planning, Rob, have you seen, what have you seen that works really well? What does good look like in terms of implementation planning? Well, I think good needs to be tailored to the complexity and the risk of whatever you're regulating, so first of all, you must plan.
Sometimes the plan can be really basic. I've been involved in some where it's basically a table of tasks, with here's what we're going to do, when we're going to do it, and a lot of monitoring thing down the side to say, have we done it or not? It confronts you to sort of question, have we, are we communicating with the right people? Are we making it as easy as possible for people who are going to be subject to the regulations to comply? And so you might have a line sort of saying guidance, for example, but then you break that down and just, okay, there might be technical guidance for the regulator, whether that's central government or say a council or field officers or whatever, guidance for industry who may need to comply, guidance for the public may have to be tailored and done a bit more plain English. So that sort of stuff can be teased out as you work through your plan.
And so a very simple plan could be a list of things to do, which you constantly revisit. Something a bit more detailed and comprehensive may get into quite a weighty document where you start to tease out, okay, who are my stakeholders? What are the roles and responsibilities of people here? Let's get into some process diagrams and process mappings to sort of set out how we're going to, how the thing's going to work. Transition, should we stagger implementation over time? Will we introduce a first bit, get everyone up to speed and then another piece? So plans can sort of work out all of those areas.
And I think one of the key things with plans is once you've got a good one, it can actually show people, say, this will take a lot of work to do. So you can go to your managers and say, look, this isn't a simple, you know, half an FTE over sort of, you know, a few weeks sort of thing. If you want to do this properly, this is going to take a bit of time.
That will then prompt the discussion if you're doing the stewardship stuff right to say, okay, where does this sit in our priorities as an organisation? This is a bit more than we thought. Do we really want to bite it off? Do we want to use resource to do this? Or should we, you know, look elsewhere and is there more important sort of first to fry sort of thing? So that's the beauty of planning. It gets to, enables you to get more realistic sort of assessments on the amount of work and what it's going to take.
And then if everyone else is doing the same, the agency as a whole can make a call about which one do we go with. Rob, you mentioned councils, but you know, anything that's like, you're going to have 70 co-regulators, like just the time to actually visit each of them. If you're going to have that, you know, you need to build in a huge amount of resource to do something like that.
And obviously you can do national meetings and that sort of thing. But if you're doing that, that level of like breaking down the process, like you may need to visit all of them. That would be a realistic expectation.
That's 70 visits. One of the examples I can remember was in the building control context. So there's been a lot in the news over the last 20 years for good and bad sort of thing.
But one of the things that was MB in the department of building and housing before that set up was a performance monitoring group that actually went out, they picked say 10 or 12 councils a year and actually went out and did a review of how well they're undertaking their functions. They couldn't do all of them all. So they focused on, okay, let's get some of the big metros.
Let's look at some of the little ones for different issues. Their issues may be different, maybe ability to attract staff, for example. So it's all around capacity could be the issue.
But that's a work that's been going for sort of 15 years or so. And that takes a heck of a lot to resource and do properly. But when you look at the potential risk, okay, we're checking building control functions at local government.
What can go wrong if that's not done properly? It justifies the investment. Yeah. And I suppose by having a really robust plan, one, you're making sure that all the other players that need to do things to help enable the plan, kind of everyone's on the same page.
But also, I suppose it's also helping manage the stakeholder expectations. To your point, this isn't a, hey, we can quickly do this in a couple of months. Because when you show the plan, it's actually a capability build.
It's almost like a change management exercise to try and get people operating in the way that they need to operate to make sure they're compliant or to mitigate the original risk that was in play. It's bigger than what people think. Yeah.
And with capability, you can actually do a specific capability plan. I've done a couple of transport agencies actually who have security functions at airports. And what sort of capability do you need? So you might need equipment and machinery.
You might need a person to do some screening. There's different types of screening. There may be sort of more covert stuff or more overt stuff.
And we all go through the security scanners when we travel. There may be things that require, say, dogs, like the biosecurity dogs or the absent dogs that can't just be brought on just like that. You've got to plan for them.
And how many do I need? These animals get old and then need to be retired. And so you need more. And so it's a lot of different capabilities to think through.
And that's the rostering of people to do the screening is probably the least out of all of them. When you've got very, very technical screens and screening machines and things like that, you've got to go through to looking after animals and stuff. And things like surprise and spot checks and things like that can happen anywhere.
Then that's a big, big area of their business. And it can be linked back to your whole identity as a regulator and how you've set yourself up. And sometimes that will be dictated by the area you're working in, airport security.
You're always going to be the big bad wolf. But there's definitely there's always a prevention function, how your comms going to work. And just having that clear strategy and vision for what you're trying to do, which is protect people.
And then look at the different levers that you have, and then planning and resourcing for them. And so committing resource to prevention to make sure people know their responsibilities. So you don't need as many dogs.
All those things, they're all so linked. And it's all so much to do with how you've actually set up your organisation and its culture and how you're telling people to do jobs and the interaction with stakeholders. Exactly.
And then COVID comes along and there's no flights coming in. So all of these people that were needed have to be diverted somewhere else. And I think they helped out with the COVID side of things.
So imagine the scheduling and the resourcing decisions that would take. It's that agility as well. The context is going to change.
Context is always changing. Yeah. I mean, just things like AI in the last couple of weeks and how much has been issued.
The context of all regulators is going to keep shifting and just making sure that's built into your way of thinking and organising yourself. Which goes to your point, Emily, around that continuous improvement learning culture, because context is always changing. And having those networks into frontline staff or the community, is both the legislation and how it's being implemented, is it still meeting the intent? Because if things are shifting, I think all of you would have worked on legislation that's kind of a bit dusty.
Yeah. That doesn't quite really fit because the context in which it was established has kind of moved on so much. So I think it really echoes that point around networks and networks and feedback loops.
So within the public sector, we've got a lot of different setups in terms of you can have a policy house within an agency, you can have policy function that's separate from the implementer or the regulator. Does that make a difference? A lot of the same issues come up, but it might be a question of degree. So I've worked in new regulations where the team that developed it was going to be the same team that has to look after the implementation.
So the challenges there really were people changing their hats. I've got my design hat on and I've got six other projects that I'm doing as well. Now I'm moving over to be an implementer here, but I'm still a designer there sort of thing.
So it's having that nimbleness and ability to pivot and change your hat when you need is one thing. If you take the next step up where the design people are in a different team in the same organisation, and so it gets picked up and passed over to whether it be an ops team or in the health sector for example, the public health service for example, someone out there in the sector, councils which we talked about before. That also has its own challenges and some of the stuff that I've seen, again a bit boring, it's about a document, was to actually sort of create while you're still designing it a handover manual.
So it's not a pick up and dump, it's you guys work with us, tell us how the implementation world is, we'll make sure this is what we're trying to do with the intent of the policy and the regulation, and how can we make sure that when it comes your way, you're going to be in a position to be able to do your job properly. And so that could be basically a handover manual with similar sorts of things to an implementation plan, but it could have things like process flow charts, background documents, things like that. And also it might be included in there the need to get sign off from both sides, so the managers of the design, managers of the implementation agree, so across the organisation there's a clear, yeah this is what it's going to take.
And to Emily's points about stakeholder engagement before, I think one of the key things these documents can do is to enable people to say, okay here are the key stakeholders we worked with to design it. They're still going to be the same stakeholders, but I'm going to now act as a reference, and I'm going to introduce you to these people and actually transfer the relationship in a really proactive way, so it's not saying see you later bye. And so it just reduces the amount of effort to make the same relationships twice.
And something to that point is when we see it go really well, it's usually when the policy shop, when in those scenarios, when the policy shop and the operational arm have really strong relationships, because it means there's the feedback loop of here's what worked well for implementation, here's what didn't. So the policy people know next time that we are designing legislation, these are the implementation things that we need to keep in mind. Again goes back to the learning culture, everyone being willing to learn.
And there are examples where the regulator has been sort of banned from talking to the policy shop for different reasons, and I mean like I'm sure there is reasons for it, but I think the benefits of allowing that relationship to happen just massively outweigh any risk to independence for example. I think just like you're always going to have a disconnect between the ivory tower policy shop, just by nature of how the legislation system has to work, but making sure you've got those feedback loops on the frontline staff so you can start picking up the things that aren't working, and then filter them through into the legislative process so you end up with legislation that's more likely to work in the real world. But again that can be hard, you can have quite a difference of opinion between the regulator and the policy shop, but just having a way to work through them and to make sure that you sort of have the ability to gather that information and take that information and turn into intelligence and do something with it, it's just really really important.
Regular sort of catch-ups, whether it be a forum with the on-the-ground people in the policy and the people as well can be quite good as well, even if it's sort of a couple of months or even a couple of years or whatever, just to get those conversations. So what about if it's a new agency, a new regulator, that sounds easy because you're starting from scratch, you've got no old legislation, you get to build brand new legislation and a brand new agency, it must be a lot easier. A lot easier, quite the opposite.
It's just monumentally harder because at the same time as trying to do this complex implementation, set up your strategies, decide who you are as a regulator, your military posture and everything that flows out of that, you're trying to turn the lights on, hire people, have a lawyer, pay the lawyer, there's the fundamental challenge of payroll systems, IT systems, those things that you're having to do at the same time as trying to implement new legislation. And I think one of the things that comes through as well is that the more modern legislation will hardwire in things like Te Manu o Te Wai, rather than having regard to the Treaty, giving effect to the Treaty, and of course all regulators should be doing that and that's part of the modern Māori relationship, but the complexity of it being wired into your legislation with principles for how you must operate, it just makes it really, really front and centre and really, really highlighted, which can add to the complexity as well. It's just another layer of difficulty when you set up a new regulator that just goes along with the same thing.
Absolutely, yeah and sometimes like you said about the hardwired into legislation, sometimes on the flip side you'll have a completely different interpretation when you have a new regulator, if the legislation was developed by someone else, and that kind of goes back to your point about if you have a theory of change or a really clear intervention logic, then you can pass that on and you mitigate that risk of having completely different interpretations and therefore implement it in a way that doesn't align with the original intent. Another thing that sometimes we see come up with new regulators, and I think we've chatted about this, is when new regulators are given a bunch of powers and sometimes quite strong powers, they're not always set up in a way for them to exercise those powers properly, so search and seizure is a good example of sometimes, you know, legislation is set up and you think, oh we'll give the regulator these powers, they might need them, but that means that the regulator has to make sure that they have the capability, so they have enforcement officers who can go out and exercise those powers. Otherwise it really does open you up to legal risk, because if you have people going out exercising these powers in a way that's not appropriate or a way that they've not been trained to do, you open the regulator up for legal risk just when they're trying to turn the lights on and and get cracking.
There's also I guess the flip side of the reputational risk if you don't use the powers that you've been given, you know, people might start asking, well why do you have them? If you're not going to use them, you obviously don't need them. And the challenge of taking someone to court in five years or ten years time when you haven't done anything with those powers in any period can just add an additional layer of complexity as well, like you allowed this to happen for eight years, it was reasonable that I didn't need to do it or whatever. Yeah exactly and it kind of goes back to Rob's point about the capability, having a capability plan, sometimes the legislation gives you a bit of a push to have a capability plan.
And in some regimes that I've worked in, say for example in the health sector where a lot of the people are sort of enforcing and applying the legislation are in the regions and local level sort of thing, there might be say a part of the public health service, a big one like Auckland or a small one like say Nelson, that they've got to have the people there to be able to use those enforcement skills or whatever it is. And sometimes they're just sitting, not doing it for a while, but when they need to do it. And so the investment that might have to go into training these people and when new staff comes through, making sure they're trained as well, can lead to quite intensive investment in training.
But if you don't do it, you'll be left with egg on your face. Fantastic, so I'm mindful that we're coming to an end of the time, so I'm going to ask you to do a bit of a wrap up and think if you were to leave the audience today with one key takeaway, what would it be? You guys can pick who goes. I'll go first and I'll be reasonably boring.
So plan early and well, commit realistic resources to doing it and just recognise that it's actually quite hard. It might not be technically hard, but it takes a lot of effort, being realistic. And I'll be a bit more controversial and I'll talk like just being a bit more agile and focussing less on the legislation.
Not that it's not important, but to position it within your organisational strategy. So what we see sometimes is organisations put the legislation at the top of their hierarchy and it will never work well like that. You have to have your culture and your strategy and what you are and how you're going to operate.
And then your legislation is one of the ways that you give effect to that. And so positioning it at the right level and just going through that process of lining your strategy up with your regulatory powers and the regulatory outcomes you're trying to achieve and just working through like that and just being agile. The context is going to change and just having systems of making sure that you are reassessing your context, that your relationship with your stakeholders, the technology is changing as your regulatory system is keeping up with it.
It's just that continuous improvement that everyone's always looking for. It's just pushing for it and having those consultations and people progressing. And judges are always going to interpret legislation through the current context.
So it's important that regulators do the same thing. My key takeaway is talk to the people. Early, often, talk to people.
Not only talk to them, but listen to them. Oh, yes, yes. Sorry.
Yeah, yeah, yeah. Well done, Rob. Yeah.
And ideally, talk to them before you've made your decision. I mean, that's something we could have talked about earlier, but you sort of do this consultation where you've already made all your decisions and you're just telling them about it. That's not engagement.
That's information. If you actually want to listen, it's quite a different approach and it's quite a lot more involved. It's just being brave to actually set yourself up to do it.
Being bold, brave, and creating a space for learning environment. Yeah. Nice.
Thank you. So I am mindful we have come to the end of our time. Thank you for your time today.
Thank you, panel, for your time today. Despite me getting Jason's name wrong, I'm really sorry. I'm sure I'm going to get a company fine for that.
I hope you found it helpful.
