New Zealand often adopts regulation from other countries. This can be resource saving but can also cause difficulties where the adopted regulation was designed for another place with different circumstances. That said, New Zealand can benefit from world experience and there are trading relationships to consider, such as with Australia and with Asia. Additionally, there is growing internationalisation of policy through the growth of policy transfer between countries, increased attempts to co-ordinate policy development and pressure to adopt international practice and standards.
Susy Frankel, Meredith Kolsky Lewis, Chris Nixon and John Yeabsley “The Web of Trade Agreements and Alliances, and Impacts on Regulatory Autonomy” in Susy Frankel (ed) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). This research proposes that New Zealand needs to ‘up its game’ as far as trade policy negotiations are concerned. With the increased complexities that a global world has placed on domestic policy settings, New Zealand needs to develop a range of strategies and tactics to ensure the best possible outcomes when partaking in trade deals. The paper navigates the challenge of regulatory autonomy and new trade issues within this dynamic trade environment, via patent law, the ASEAN + 6 and the Trans-Tasman Partnership negotiations. It explores what approaches might be appropriate to ensure that any costs New Zealanders may have to ‘swallow’ on these complex trade deals, are subsequently offset by potential benefits.
Susy Frankel and Meredith Kolsky Lewis “Trade Agreements and Regulatory Autonomy: The Effect on National Interests” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). This chapter explains how New Zealand’s regulatory autonomy is constrained through trade agreements. The authors contrast the top-down, predominantly negative integration approach of multilateral trade agreements and some aspects of free trade agreements (FTAs), with the bottom up harmonisation approach. The chapter also looks at how the FTAs of which New Zealand is party directly affect our regulatory autonomy and associated national interest. The chapter explains the indirect effects of the FTAs of New Zealand’s trading partners, particularly Australia, where New Zealand is not a party. The chapter draws together the ways in which national regulatory autonomy is constrained and assesses that constraining effect using two case studies: food safety; and aspects of pharmaceutical regulation. Using these case studies the chapter lays the foundation for analysing in what circumstances one approach may be more favourable than the other for New Zealand.
Chris Nixon and John Yeabsley in “Australia New Zealand Therapeutic Products Authority: Lessons from the Deep End of Trans-Tasman Integration” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). This paper examines the negotiations to set up a therapeutics agency (ANZTPA) as a supranational regulator of medicines in New Zealand and Australia, which started in 2003. The proposed agency (that did not come into being), was intended to ensure that alternative medicines, over-the-counter, and some prescription medicines, and food supplements met safety standards that consumers could rely on. This chapter examines the course of the ANZPTA initiative in the light of other more successful integration efforts and examines the factors that contributed to the failure to establish the agency. Using the ANZTPA example, the chapter looks toward developing a set of approaches that could be applied more generally to trans-Tasman integration. This is particularly pertinent as the ANZTPA negotiations have at the time of writing begun again. The next stage of the project will test those suggested set of approaches further.
Susy Frankel and John Yeabsley “Features of the Uniqueness of New Zealand and their Role in Regulation” (Cross-cutting theme paper prepared for the NZ Law Foundation Regulatory Reform Project, 2013). A provision in legislation, for example, may be based on an English or Australian statute but have been changed sufficiently that extensive testing via local courts (which may not happen) is required before anyone can be clear about whether specific aspects of practice or case law from those other jurisdictions are relevant in New Zealand. That cost and the associated uncertainty is not necessarily a bad thing, although, if a different (even novel) practice was precisely the point of the change from the overseas law. After all, the advantage of being behind others in time and experience is sometimes precisely to be positioned to see their faults and take a different path. One example might be the unique way in which copyright law in New Zealand protects technological protection mechanisms from being circumvented. The New Zealand approach is unique and was deliberately devised to avoid difficulties that had arisen under United Kingdom and United States law.
However, we sometimes adopt overseas regimes even though they have been strongly criticised in the country or region from which the regulation originated. As discussed further below, New Zealand has started to get itself out of a cycle of over-eagerly taking on overseas regimes that are not useful, or fit for purpose locally. But the answer is not necessarily to always create entirely new domestically-sourced regimes that cannot be maintained and which, because their lack of global connectedness, can create costs and uncertainty.