Understanding the wider context for disputes
The context in which disputes arise varies greatly and numerous factors can influence them including policies, legislation and contractual arrangements.
The history of the scheme
If there is a scheme in place, it will be useful to understand the history of how and why it was established and by whom.
The policies that underpin a scheme and how they were arrived at may be set out in a number of documents. Decisions taken by Cabinet will have authority, but other documents such as Regulatory Impact Statements (RIS), public discussion documents or internal policy papers and memos may also be relevant.
The basis and rationale for legislative provisions can sometimes be understood from drafting instructions, Select Committee reports and even the Hansard records of parliamentary debates.
- Decisions taken by Cabinet(external link)
- Regulatory Impact Statements(external link)
- Select Committee reports(external link)
- Hansard records(external link)
The key elements of the wider context
All contextual factors that may contribute to, or generate, disputes should be identified and understood. These are 4 types of contextual factors:
a. Legislative and other instruments — There are general obligations in legislative instruments(external link) that apply to a broad range of activities (eg, consumer protections) and may be relevant for a scheme. Sector-specific legislation and regulation might also be in place, and other instruments such as rules, guidelines, codes, manuals and instructions may have been issued for the regulated sector.
There may be inconsistencies, areas of ambiguity or specific provisions within these instruments that create problems for people that have to use or comply with them. There may also be gaps which, if addressed, could help prevent issues arising.
b. Contracts — Where a contract is in place, complaints or disputes may result from parties’ different interpretations of the terms and conditions. The contractual arrangements themselves may result in significant imbalances between the parties’ rights and responsibilities, thus causing tensions to arise. There may also be dispute resolution clauses in the contracts that establish processes for resolving disputes under certain circumstances.
c. Objectives and outcomes — The scheme will probably have objectives set out in legislation or other foundation documents. The agency responsible for the scheme may also have particular objectives. And, the regulated sector, users and other stakeholders may have different objectives for the scheme and outcomes they are seeking. The scheme is likely to be problematic if there is significant variance between the objectives and outcomes sought by different sector participants.
There will generally be specific reasons why the agency or sector is considering change in the area of disputes at a particular time. It is important to understand these drivers, which may include public pressure after a perceived failure, or a specific interest or request from senior management, or a Minister.
d. Other factors — A range of other factors might need to be considered to understand the context including whether national or international standards or codes of practice apply, and if so, whether compliance with them is mandatory or voluntary. Where the sector is self-regulating, the provision or absence of good industry standards and guidelines may also be a factor in complaints and disputes arising.
The context for disputes related to engineering work includes their professional body, a separate council, legislation and rules. Engineering New Zealand (formerly IPENZ) is the professional body for engineers in New Zealand. Engineer's professional obligations are set out in the Chartered Professional Engineers of New Zealand Act 2002, Chartered Professional Engineers of New Zealand Rule (No 2) 2002 and the IPENZ Rules. IPENZ functions as a registration authority and must maintain a register of current competent engineers, set competence standards, monitor compliance of those standards, and if needed, discipline its members.
The formal process for investigating and disciplining engineers is also set out in the Act and the rules. IPENZ has a separate informal and consensual process that can help resolve concerns raised by the public about an engineer.
The Chartered Professional Engineers Council, established under the Act of the same name, reviews and approves the IPENZ rules and hears appeals from decisions on disciplinary matters, including decisions not to renew the registration of chartered professional engineers.
Key questions about the context
- How and why was the scheme established, and by whom?
- What is the basis or mandate for the scheme (eg, contract, legislative, Cabinet decision etc.)? Are there other relevant instruments that apply to the scheme? What are the policy settings for the scheme that sit behind these documents/decisions?
- What objectives and outcomes is the agency seeking through the scheme? What about users and other participants?
- What is the agency’s current role in the scheme? What responsibilities/obligations does it have (eg, reporting requirements)?
- Why is the agency interested in the review/new scheme now?
- What national or international standards or codes of practice apply to the scheme?
- Has the regulated industry applied any standards or codes of practice to itself?