Frequently Asked Questions

Why were the responsibilities for better regulation transferred from the Department of Premier and Cabinet to the Department of Finance, Services and Innovation, and when did this occur?

Innovation and better regulation are important priorities for this government to reduce regulatory burden on business and the community, and boost productivity in NSW. Following the 2015 election, the Hon. Victor Dominello MP was appointed as Minister for Innovation and Better Regulation, and the responsibilities for better regulation were formally transferred to the Department of Finance, Services and Innovation I July 2016.

 

What is the Department of Finance, Services and Innovation’s role in regard to the better regulation principles?

The Better Regulation Division within the Department of Finance, Services and Innovation has responsibility for whole-of-government regulatory reform programs. This includes maintenance of the Guide to Better Regulation. The Department of Premier and Cabinet has retained its gatekeeper role in relation to assessing new and amended regulatory proposals.

 

Is the Guide to Better Regulation current and are its requirements still in force?

Yes.

 

When do I need to apply the better regulation principles?

The principles are to be applied throughout the design and development of new and amending regulatory proposals. This must be demonstrated when new and amending regulatory proposals are submitted for Cabinet or Executive Council approval. Wherever possible, the impact assessment must be supported by quantitative analysis.

 

Do I need a separate attachment to the Cabinet Submission which addresses the better regulation principles?

No, the application of the better regulation principles can be demonstrated throughout the Cabinet Submission or Executive Council Minute.

 

When does a regulatory proposal need a Better Regulation Statement (BRS)?

A BRS is required for all significant new and amending regulatory proposals to demonstrate that the better regulation principles have been met, and that the proposals are justified. This is done by documenting the analysis undertaken. Wherever possible, the impact assessment must be supported by quantitative analysis.

 

What is the purpose of a BRS?

The purpose of a BRS is to provide:

  • decision makers with sufficient information to enable them to make an informed decision about whether to approve a proposal, and
  • business and the community with information about decision making, ensuring transparency and accountability in the regulatory development process.

 

When, and to whom, do I submit a BRS?

A draft BRS can be submitted to your Department of Premier and Cabinet policy branch for early feedback. The final BRS should be submitted as an attachment to the Cabinet Submission or Executive Council Minute.

 

Who determines if a regulatory proposal is significant?

Portfolio Ministers are responsible for determining whether a regulatory proposal is significant. However, this is subject to the views of the Premier and Cabinet.

 

How do I determine if a regulatory proposal is significant?

It needs to be determined on a case by case basis, but in general, a regulatory proposal is considered significant if it would:

  • introduce a major new regulatory initiative
  • have a significant impact on individuals, the community or a sector of the community
  • have a significant impact on business, including imposing significant compliance costs
  • impose a material restriction on competition, or
  • impose a significant administrative cost to government.

 

Do I need to publish the BRS?

Yes, the BRS is to be made publicly available by the relevant agency on their website as soon as practicable after a Bill is introduced into Parliament, or after a regulation is published on the NSW Government legislation website. The BRS should remain on the agency website until the regulation is in force.

However, Cabinet can make an exception in limited cases.

 

Do I still need to meet the Subordinate Legislation Act 1989 requirements?

The requirements under the Subordinate Legislation Act 1989 continue to apply to statutory rules in NSW. Under the Act:

  • statutory rules (that is regulations, By-Laws, Rules or Ordinances) are automatically repealed every five years
  • a Regulation Impact Statement (RIS) must be prepared for all new statutory rules in accordance with Schedule 2 of the Act. Statutory rules subject to automatic repeal will require a RIS before they are re-made
  • Requirements for consulting on a RIS and providing advice to the Legislation Review Committee still apply, and
  • analysis must be prepared for amending statutory rules in accordance with Schedule 1 of the Act.

 

Do I need to submit a BRS and a RIS if a new regulatory proposal is significant?

No, where a new regulatory proposal is significant, a RIS can be submitted with a Cabinet or Executive Council Minute in the place of a BRS. However, to meet the better regulation requirements, the results of consultation and a more comprehensive assessment of the impacts on business and the community is required. This can be done by revising the RIS, or by providing the information within or as an attachment to the Cabinet Minute.