9 February 2011

Constructing and deconstructing the EPA?

I was interested to hear of the government's proposal to merge and reconfigure the government departments to reduce the size of the public service.

The announcement prompted me to recall a tender advert from the new Environmental Protection Agency I noticed in newspapers just before Christmas.  I'll get to that in second.


By way of the background, the EPA is primed to take over a number of environmental processing and protection functions of the Ministry for the Environment, the Environmental Risk Management Authority, the Ministry of Economic Development, and the Ministry of Foreign Affairs and Trade. 

The Minister, Nick Smith, described the reforms in the following way, when legislation facilitating the changes was introduced to the House late last year:

This bill is an important part of the Government’s programme to strengthen New Zealand’s environment management systems. It is about central government providing stronger leadership on environmental regulation. It is about a balanced approach of growing the economy, but underpinned by sound environmental systems. It is about an efficient Public Service, where we group like activities together under one roof, and it is about ensuring integrity, independence, and consistency in the way we organise our environmental institutions.
I should say at this point, I don't have a strong view either way on the desireability of the new EPA.  I'm leaning towards the view that it's probably a reasonably sensible move - especially if it enables central government to better express the national interest in environment matters.  But that's by-the-bye.

What was interesting, though, was the EPA's advertisement seeking registrations of interest for the supply of service to it:
We [invite] registration from parties interested in providing professional services for the following service categories:

- RMA national consenting process services
- A range of environmental, economic, social and cultural technical expert services
- Legal services for boards of inquiry
- Dispute resolution and facilitation services
- Voice recording and transcription services
- Interpretation and translation services
(The ROI documents themselves aren't available online now, as tenders closed last month.)

Hmmm. Some of the functions being outsourced, such as transcription and translation services, are standard and expected.  However, I was surprised by some of the others: consent processing, dispute resolution and (to a lesser degree) legal services, etc.

I would have thought that these types of services are core services that one would expect an EPA to undertake in-house.  They are very much "front-line" services for a consent processing agency.  I'd be very interested in seeing more detail about the nature of the functions being undertaken in-house and those being outsourced. 

It makes me wonder whether this is a genuine attempt to improve environmental protection and national consent processing?  Or whether the merger/reform is simply a covert vehicle for outsourcing government functions - a magical illusion to look like the state sector is being downsized? 

Or both?

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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