Government transparency forum
The ECCT hosted the 2017 International Government Transparency and Public Participation Forum together with the National Development Council (NDC) and the participation of various other government agencies. The full-day forum brought together senior government officials, academics, researchers and corporate leaders to discuss the latest developments and best international practices related to the drafting, implementation and maintenance of controls, including laws, regulations and guidelines. At the forum opening remarks were made by NDC Deputy Minister Kao Shien-quey, ECCT Chairman Hakan Cervell and Thomas Jurgensen, Deputy Head of the European Economic and Trade Office. This was followed by presentations in three sessions by various European and Taiwanese experts.
In his opening remarks Chairman Cervell said that citizens and foreign residents of Taiwan are demanding the same level of public participation and transparency and as other developed countries. Besides safeguarding the rights of individuals to participate in public affairs, he added that transparency and predictability in the regulatory system are essential to business.
He went on to say that Taiwan has a well-established legal system and procedures in place for amending laws and regulations, including a 60-day notice and comment period for drafts of all regulations. However, there remain instances of important policy changes that are not properly communicated. With sufficient transparency and meaningful consultation with business, potential problems can be discovered early on in the drafting process. This approach not only benefits business but also helps authorities to identify problematic areas and make improvements before regulations are finalized.
The chairman pointed out that while Taiwan continues to adopt international standards and practices, there have been several recent instances where decisions were reversed without due cause and other instances where the regulatory process has not been transparent. Not following due process and reversals, especially those not based on scientific evidence, risk undermining trust in the government and the international image of Taiwan, he said. Another concern is the misuse of administrative means to avoid procedures required by law. To ensure complete transparency, it is therefore important to announce and publish explanatory documents and include the full scope of regulations in formal announcements. The chairman concluded that a transparent, consistent and predictable regulatory system is in the best interests of all stakeholders that benefits the economy and the people of Taiwan.
In her remarks Deputy Minister Kao said that the government has been active in proposing policy recommendations to improve transparency and bring the regulatory system in line with international norms. In this regard she said she valued the long term partnership with and contribution from the ECCT.
She added that the government has been working hard with private sector to make progress in recent years in terms of building Good Regulatory Practice (GRP) capacity to conduct Regulatory Impact Assessments (RIA). She mentioned that a handbook will be released this year drawing on international best practices. The government's open government online platform was set up in 2015 to improve public and private participation, gather opinions with a view towards drafting better laws. She went on to say that the government's first priority is to build a business-friendly environment and will engage in a new round of regulatory loosening aimed at removing barriers and speeding up investment in Taiwan. Actions include establishing a single window for start-ups related to the digital economy.
In his remarks Thomas Jürgensen said that the EU has a robust framework in place under the heading of better regulation which has four main components to ensure that decision-making is open and transparent; citizens and stakeholders can contribute throughout the policy and law-making process; EU actions are based on evidence and understanding of the impacts and regulatory burdens on businesses, citizens and public administrations are kept to a minimum.
The European Commission is assessing the expected and actual impact of action at every stage of the decision-making process. Extensive planning and analysis is carried out before taking action, for instance before proposing a new law, or when evaluating how well laws are performing. A useful tool in this regard, which the EU makes consistent use of, is a regulatory impact assessment, a process of systematically identifying and assessing the expected effects of a regulatory proposal to determine its impact on business, consumers or the economy. RIAs can be very useful in identifying potential problems during the drafting phase of regulations.
Keeping regulations up to date and fit for purpose is also important. In this regard the commission is assessing the performance of the existing body of EU law and periodically making changes where necessary to keep laws up-to-date. In order to ensure the quality of regulations the commission has established the Regulatory Scrutiny Board, an independent group of commission officials and experts from outside the commission. Its role is to check the quality of all impact assessments and major evaluations that inform EU decision-making.
Session 1 - Open government
Topic: European industry insight
Speaker: Rami Baitieh, CEO, Carrefour Taiwan
The speaker shared experience from Europe. He began by citing a survey showing that trust in business, government, the media and NGOs is declining. This is a serious problem because without trust, belief in the system fails. Based on the survey, people feel a sense of injustice, a lack of hope, a lack of confidence and a desire for change because they feel the system is biased in favour of elites, hard work is not rewarded, children will not enjoy a better life than their parents, they have no faith in their leaders and that we need forceful reformers to bring change. The same survey showed the credibility of CEOs dropping to an all-time low.
Separately, a survey by the European Commission's Standard Eurobarometer in the Spring of 2017 showed that only 42% of EU citizens trust the European Union, while trust in the national governments and national parliaments was even lower.
Open government, according to the European Union's definition refers to public administrations breaking down existing silos, opening up and sharing assets - making data, services and decisions open - enabling collaboration on public service design and delivery and increasing participative forms of policy making. It is based on the principles of transparency, collaboration, and participation; functioning within an open governance framework.
In the UK people have access to data to an App' that tells them the level of safety of a particular area in the city on a scale of 1-10. The level is determined based on statistics from the police, users and hospitals, among others. Germany has a "Fix my street" App' which allows users to take photos of damaged or broken public facilities and send them to authorities. The Netherlands has a system aimed at making neighbourhoods better which allows the public to submit ideas to a committee, which discusses and implements the best ideas.
There are seven drivers of open government: Democratic aspects (better control of government and better policy making); better quality of service and enhanced user experience; social benefits and public value; cost efficiency; economic growth and jobs; international mobility and demand from civil society and/or business associations. For example, if money is being spent properly, the economy will improve and jobs will be created because trust brings capital and a higher quality of life. If the system is built on transparency and CEOs and officials have high credibility, there will be no need for strikes because people will know that things are fair. Credibility therefore ultimately reduces a lot of costs.
There are 14 barriers to open government: Lack of leadership and political commitment; inertia; lack of financial resources; lack of institutional an individual capabilities and skills; legal constraints; uncertainties regarding sustainability and business model issues; legal uncertainties regarding responsibility and accountability; poor data quality; lack of representativeness; multilingualism; lack of common standards and specifications (interoperability); perceived loss of control; difficulties identifying and creating demand from citizens and businesses; lack of trust and false or unrealistic expectations.
Commenting on the problem of the lack of leadership and political commitment, Baitieh said that it is the first responsibility of leaders to listen and be open to good ideas. Inertia or the lack of ability to make decisions is often because people are waiting for the perfect solution. Given that the perfect solution is usually not attainable, it may be preferable to accept a workable, practical solution. Uncertainty is very bad for business. The rich will not risk their money which is why legal certainty and accountability are important.
Topic: Better regulation for Taiwan – Why? What? How?
Speaker: Roy Lee (Chun), Deputy Director, Taiwan WTO and RTA Center, Chung-Hua Institution for Economic Research (CIER)
The speaker began by noting that Taiwan's rankings in the World Bank's Ease of Doing Business report (based on 7 indicators) had improved from 61st place in 2008 to 11th in 2016. According to the World Bank's analysis, on average, a difference of a percentage point in regulatory quality as measured by Doing Business distance to frontier scores is associated with a difference in annual FDI inflows of US$250-500 million. However, although Taiwan had seen a dramatic increase in its rankings, actual FDI did not increase in line with the normal pattern. While Lee said he had not done extensive research on the reasons for this mismatch, he referred to several other studies which suggested that regulatory quality has a direct and horizontal (economy-wide) impact on the overall efficiency and welfare. Based on this Taiwan may be losing out because of a sub-optimal regulatory process such as making regulations behind closed doors, making political and ‘convenient' decisions (to reduce risk on the part of civil servants), the lack of meaningful ex ante Regularity Impact Assessments (RIAs – while some RIAs are conducted, they do not meet international standards), the lack of meaningful participation and consultations.
This view is backed up by Taiwan's Academia Sinica which concluded that regulations, a lack of RIAs and policy towards China is dragging Taiwan down. Leaders need to understand that better regulations have multiple benefits for the state and constituents.
In order to achieve better regulations, you first need to have ex ante RIAs. This is not just about hiring a think tank. You need to consult and adopt public opinions. Consultation is the process to pay attention to and it is an art in itself. It is not just about inviting people to attend a meeting. You need to think deeply about who is invited, what is discussed and how to get the right input.
Once regulations are implemented, that is not the end of the story. Regulations have to be updated to keep up with technology and social trends. For example existing regulations are not appropriate for cloud computing and the internet. Sometimes they are only updated as a result of a crisis but it is far better for officials to be proactive in updating regulations for the 21st century to ensure quality and appropriateness.
RIAs are not just about economic but also social impacts. Culture and society need to be taken into account. For example, you also need to consider how a trade deal will affect different regions and sectors of the country. RIAs also have to look at the environmental impact.
The key elements of good regulation are: science/evidence-based analysis; compare possible alternatives (including ‘do-nothing'); thorough cost and benefit analysis and consultation with stakeholders. Science is often overlooked in Taiwan as are alternatives in terms of costs and benefits. Doing nothing is sometimes the best option. Lee went on to cite some examples of some decisions that were made without following the key elements.
Effective consultation is not about numbers. It is an art. However, it is still the commonplace approach to simply aim to get a large number of people to a meeting, record their opinions and proceed to simply file and ignore them. This does not produce benefits.
What is missing in Taiwan is a high level commitment and an effective framework to deliver. It would help if the president stated that RIAs should be a priority. However, commitments are missing because of a lack of understanding of the long term value of reform. They are also politically undesirable (no obvious short-term gains). There is also opposition from the public service and other stakeholders. Another problem is that reforms are often carried out on a "small-decision style" without a holistic framework of the broader impact on other agencies or sectors.
Politically, reform is difficult and takes hard work. It is very demanding for those junior officials doing the ground work. They need the support and commitment from senior officials. High level officials must also be willing to provide enough resources.
The tyranny of small decisions needs to be looked at. A lot of times, officials in one department don't have an overarching framework and don't coordinate with others. Taiwan also does not have external pressure, although meeting the requirements of joining the Trans Pacific Partnership could spur authorities to move forward. The TPP has two chapters which refer to the need for RIAs. Taiwan officials are also often too quick to regulate when the best option may be to do nothing. For example, imposing an old regulation on a new industry sector may do more harm than doing nothing.
According to Lee, the TPP has substantive content that will affect all aspects of the economy and despite the US decision to withdraw, the TPP model will become a de-facto reference for many future bilateral trade deals.
Topic: The spirit of open government
Speaker: Audrey Tang, Minister without Portfolio
Minister Tang said she is optimistic that RIAs can be implemented in Taiwan. She pointed out that the internet governance model works with multiple stakeholders and insists on radical transparency. As long as you can show you have interests you can participate and everyone's ideas are used to reach a rough consensus. This is a culture that she is very familiar with and wants to incorporate the same spirit in the government.
Just like a digital personal assistant is not disruptive and only there when you need it to give factual information that lowers fear and anxiety, the government should be a facilitator of conversation, to help reach social consensus and reduce anxiety.
On the frequently raised question as to the lack of resources to conduct proper RIAs, Tang cited an example as to how taking the time and effort to conduct a proper analysis actually helped save a lot of resources. A public campaign in a remote area (which drew on local residents as well as visitors to the area) called for helicopters to be deployed to be used as ambulances. People had different reasons for participating and it was difficult to separate real facts from emotions. After visiting the area, consulting with residents and conducting follow-up analysis, it was concluded that the area lacked medical facilities and that improving the local hospital was a better solution rather than deploying helicopters, which would have been more costly and not produced the best outcomes.
During the consultation process, all ministries were invited to participate and contribute ideas on the same platform, updating information as and when needed. Minister Tang said that 20 cases have been dealt with in this way. Given that the minister herself assumes responsibility if anything goes wrong and public servants are given personal credit for any of their ideas adopted, public servants are not afraid of contributing ideas anymore.
According to the minister the NDC used the same platform to discuss the Foreign Talent Act and to align their views with other stakeholders in order to give the act more legitimacy and buy-in. She noted that it is important to start consultation in the very early stages to demonstrate seriousness. If consultation is done at a late stage, it is likely to be viewed just as a box-ticking exercise.
Morning panel discussion
The panel discussion was moderated by Audrey Tang. Rami Baitieh was joined on the panel by Lin Huan Lin Huan, Associate Professor at Soochow University and former Deputy Minister at the NDC.
Professor Lin pointed out that the problem of consultation is that some stakeholders are not able to separate popular opinion from fact. For example, no one wants pollution but everyone wants high salaries. What should business do if their industry produces pollution? He also made the point that the biggest problem facing civil servants is the lack of support from high level officials. Another problem is that good ideas are often stifled by auditors, which usually have an alternative opinion on the costs. Even good ideas are blocked by the money counters. Moreover, prosecutors are quick to accuse officials of corruption.
Minister Tang replied that the new NDC minister has a good background in public service and the NDC has the power to solve many of these issues mentioned by Lin. For example, the government procurement act will minimize disruption by allowing procuring agencies to choose the most advantageous bid. She also assured the audience that Taiwan will not revert to a tyranny of democracy. Only the best ideas will be adopted and many participants in the process are professionals.
Lin also said that part of the RIA process should be to provide a factual basis for legislation. Citing the Foreign Talent Act, he said that the reasons should be clearly stated as to the purpose of the act, ie is it a kind of immigration policy or for the purposes of boosting the economy? Other facts should also be provided such as how many foreigners are living and working in Taiwan. Minister Tang agreed that you first need to set out the facts clearly before taking into account feelings, although feelings are also important. Rami Baitieh made the point that the government can't do everything and that the participation of all stakeholders is necessary.
Session 2 - Good regulatory practices / Regulatory Impact Analysis
Topic: Technical barriers to trade and good regulatory practice
Speaker: Aik Hoe Lim, Director, Trade and Environment Division, World Trade Organisation
The speaker began with an overview of the Agreement on Technical Barriers to Trade (TBT), which is administered by the World Trade Organization (WTO).
The nature of trade has changed a lot over recent years as have the nature of trade obstacles. Today the average global tariff is 4%, which means that tariffs are no longer a significant barrier to trade. However, as tariffs have gradually fallen, non-tariff measures have increased globally. A large number of TBTs are because of regulations.
The TBT agreement is one of the key WTO agreements. On the one hand it aims to pursue liberalization but on the other hand it recognizes members' right to regulate. Its aim is to avoid discriminatory and unnecessary barriers to trade but at the same time allow members to fulfill legitimate objectives. WTO members are urged to pay attention to international standards and transparency even before regulations are implemented.
Discrimination can be against other WTO members or between foreign and domestic players. The key principle of the TBT is that there should not be any discrimination. While some trade barriers are discriminatory, others are simply trade restrictive, such as procedures that are burdensome. The question that should be answered about any regulation is can the objective be met without restricting trade? The TBT encourages members to regulate based on international standards.
The core principles of the TBT are non-discrimination, avoiding unnecessary barriers to trade, the use of international standards and transparency.
Good Regulatory Practice (GRP) describes best practices and procedures developed by governments and organizations to improve the quality of regulation and ensure that regulatory outcomes are effective, transparent, inclusive and sustained. For this reason GRP shares commonality with the TBT agreement, which is built on three blocks: transparency and consultation, assessing alternatives and internal coordination. Everything in the WTO requires coordination among agencies and other stakeholders. Most RIAs are designed for domestic purposes but WTO members are also urged to think about international implications of any policy.
The WTO's TBT recognises that GRP can contribute to the improved and effective implementation of the substantive obligations under the TBT Agreement, preventing the creation of unnecessary obstacles to trade. GRP is implemented through laws, regulations, guidance, as well as the creation of institutions to oversee regulatory processes. Both internal and external policy coordination and cooperation between members is important. This shows that both GRP and TBT emphasise transparency and consultation.
Wide stakeholder input improves regulatory quality and facilities compliance. Notification functions under the TBT give trading partners opportunities for comment on draft regulations (60 days) and require that these comments be taken into account, as well as give a reasonable interval between publication and entry into force of regulations (6 months). All notifications are public. The TBT agreement does not prescribe RIAs or how to assess alternatives but it has been pointed out that RIAs could be a good way to assess policies.
While there is a cost to transparency and consultation, this can be reduced by using the latest technology. In November 2016 the WTO launched its "ePing" online subscription service to receive email alerts listing SPS/TBT notifications on products/markets of interest.
On regulatory cooperation, WTO members are asked to have dialogue to minimize trade disruption or go one step further to make agreements. If more members adopted GRP it would be beneficial to all.
Regulatory Impact Analysis – The EU's experience
Speaker: Isabelle Bénoliel, Director, Directorate-General for Competition
In terms of regulation, in principle the EU only acts when necessary or when it can add value.
Otherwise decisions must be made at the lowest possible level that is closest to citizens. RIAs can help to ensure that decisions are open and informed by the best available evidence.
The IA procedure was introduced in the EU in 2002. Since then it has been expanded upon and and revamped twice (in 2005 and 2009). The EU's latest effort to improve regulations is the "Better Regulation Agenda" released in May 2015.
The agenda was spearheaded by European Commission President Juncker to bring added value and achieve better results for citizens and businesses through better EU rules and provide greater transparency in decision-making, wider public consultation, improved impact assessments and reviews of EU legislation. The president wants regulations to be more ambitious on big things and smaller on the small things. Part of the process is to constantly identify ways to make things better. It is about designing and implementing laws in a transparent manner and listening to citizens and stakeholders, to base decisions on science, to go no further than required and bring benefits at minimal cost (ie, keep the regulatory burden to a minimum).
IA in the commission examines the economic, environmental and social impact, both upstream and downstream. Guidance documents and a toolbox apply to each phase of the law-making cycle.
A first key aspect of the IA process is to determine whether or not there is a need for regulation. The next step is to determine who will be affected and how and, after this, how to get and evaluate feedback. RIAs provide support for regulation but they are not a substitute for political judgement. RIAs provide important input and viable communication tools because they include details of the consultation process and help to raise awareness of the issue in the public sphere.
The Regulatory Scrutiny Board enforces high quality standards. It is an independent and autonomous body. It has a chair and six regular members who serve for 3 years (not renewable). Three of the members are high level commission officials and three are experts recruited from outside the commission.
The board has reviewed 114 IA cases between 2014 and 2016. Analysis is very thorough to determine whether they meet minimum standards. Proportionality is a very important principle. The impact on the whole EU area is evaluated to see how the regulation would fit in the wider regulatory environment. In cases where a negative opinion is assessed (which happened in over 40% of cases), a revised IA is requested.
Listening to stakeholders is essential. This is why EC has opened up the process and takes the views of all stakeholders into account when making laws. There are various ways to participate in all stages of the process, from inception, consultations, design and review. Normally, consultations last 12 weeks. Results are published on the website. Once a proposal is presented, there is another consultation process for feedback before it is discussed by the council and parliament. On average, 100 open consultations take place annually at the EU level. Regulations have to be necessary, fit for purpose and up to date. The goal is to create a simple clear and predictable framework that is also adaptable to changes.
The speaker went on to cite several examples of IAs conduction in the commission as well as examples of combined legislative and enforcement action by the commission that is safeguarding consumer rights, showing that enforcement and regulation are important tools that complement each other.
Topic: NCC experience in practices and procedures of legislation
Speaker: Wang Der-wei, Director, Department of Planning, NCC
The speaker gave details of various regulations and government procedures that need to be followed to draft legislation in Taiwan. The legislative procedure consists of six steps: 1) define problems and confirm requirements; 2) establish policy objective; 3) analyse costs and benefits; 4) draft the act; 5) public consultation; 6) forward to the Executive Yuan and Legislative Yuan for review and passage.
Following six steps is not enough to be truly transparent. Defining problems in terms of regulating communication services on the internet as part of drafting the Digital Communications Act and the Telecommunications Management Act was difficult given the global nature of the internet and the technology convergence now taking place on the internet.
The NCC started in January 2014 by conducting a survey which identified 11 important topics including how to ensure better competition and how to restrict investments of party affiliation. The NCC began consultations by describing problems and published examples from other countries and invited feedback. They also started collecting opinions well before the official public consultation process. They realized that since so many types of services involving many types of stakeholders are involved, it is important not to overregulate the internet (and only regulate the most important aspects). It was also important to involve many agencies in internet governance in drafting the acts, which lay out the principles of internet governance.
In drafting the acts, the NCC established a team for legislation and coordinated across departments to shape the framework of the drafts. It also reviewed existing laws and regulations to avoid conflicts.
The NCC published consultations on the draft on its website for the 60 day commentary period. It also held two public hearings for the acts and invited other agencies for joint consultations to exchange information. There were 20 responses from 29 agencies. In addition, the NCC actively attended conferences with NGOs and other parties to explain the legislation.
Responding to feedback from consultations, the NCC amended the drafts and forwarded the drafts and the regulatory impact analysis of the drafts to the Executive Yuan for review. When the drafts are approved by the Executive Yuan, they will be forwarded to the Legislative Yuan for further review.
During the legislative procedure, the NCC not only remained open and transparent, but also actively communicated with the public, and compiled a variety of feedback items before the completion of the drafts.
Afternoon panel discussion
The panel discussion was moderated by Peng Shin-yi, Professor of Law, NTHU. Panellists made the point that communication between government agencies is important. If officials operate in silos they may not be able to conduct effective RIAs or draft effective regulations. RIAs need to be comprehensive and substantial. Evaluation is not meaningful if it is just a case of ticking boxes. It will require a shift in culture to really engage with all stakeholders and get to the root of real issues.
On a question of regulating the internet, the problem is that things change so quickly given technologies such as AR, VR, AI and cloud computing. This means that some aspects should not be regulated and other aspects first need some kind of international consensus before regulation should be attempted.
Isabelle Bénoliel made the point that a proper IA process seems more complicated but it is better because the extensive consultation the process entails makes the adoption process much simpler – ie, the downstream process makes the upstream process easier.
On a question of deregulation, Juncker has committed to deregulation where evaluation shows that existing regulations are not effective. The commission has already acted in this regard. According to Bénoliel, 90 pieces of regulation have already been withdrawn at the EU level and left to the national level.
Session 3 – Regulatory consistency
Topic: Regulations database in Taiwan
Speaker: Lo Chien-wei, Senior Systems Analyst, Ministry of Justice
The speaker introduced the MOJ's Law & Regulations Database (LRDB) portal site which has various versions including the main Chinese version, an English version and a special "junior" version for children. It was first launched in 2000 after a decision was made to digitalise the MOJ's database.
Articles on the database include the constitution, 12,000 laws (statutes, ordinances, principles), decrees (criteria, regulations, enforcement rules, regulations, outlines, standards, guidelines) judicial precedents (interpretations by grand justices, criminal and civil precedents of the supreme court and supreme administrative court) and agreements with mainland China, Hong Kong and Macao.
Regulators are responsible for submitting new laws and revisions to the database as soon as possible (within 5 days). The Executive Yuan gazette also has pre-announcements and notifications of new regulations. The junior (children's) version of the website uses multimedia and real instances of real cases to help teach children about the law.
Guidelines stipulate that all agencies follow and translate all laws within 3 months. Only guidelines related to foreigners need to be translated. A task force supervises English translations. There are currently 2,400 entries in English which are categorized according to the competent authority in charge.
Topic: Regulatory consistency and industry development
Speaker: Seraphim Ma, Senior Partner, Baker & McKenzie
The speaker focused on regulatory inconsistencies in Taiwan.
Regulatory interpretation means to correctly analyze and explain the meaning and reasoning
of a law based on its purpose and reason. There are 5 methods to interpret regulations: 1) textual interpretation; 2) contextual interpretation; 3) interpretation of the regulation's purpose; 4) interpretation of the legislative history and 5) comparative interpretation.
The constitution is the overarching law in Taiwan. Below this are laws that need to be passed by the Legislative Yuan (LY) and promulgated by president. Under these are regulations (that should not contradict laws). Finally, there are administrative rules at local government level.
Regulations need to be interpreted to explain the wording of the regulation, to supplement deficiencies in the regulation, to adapt to and reflect changes in society, to logically apply the regulation for use, to unify the explanation of a regulation. For example, the purpose of the Labour Standards Law (LSL) is to protect labourers. However, some agreements between employers and employees might actually be more beneficial to both parties than the provisions in the LSL.
Being consistent is key. Corporations need to have a clear path and guidelines to follow laws and regulations. With clear guidance, corporations can anticipate and prepare for foreseeable outcome, costs and expenses. The same law or regulation will not result in different outcomes when applied to similar situations. This creates a more equitable environment. For society, when interpretations of laws and regulations are consistent, economic activity will be more stable.
The national government normally creates laws while local governments implement laws. The local government utilizes administrative letters and administrative regulations to interpret the laws during the implementation phase. For example only six local governments will cooperate with the national government to conduct labour inspections that are required under the LSL.
Variations in regulatory interpretations also occur between government departments. Different government departments generally have varying responsibilities but sometimes there is an overlap. For example for calculating a driver's working hours, the Ministry of Transportation and Communications (MOTC) counts only "hands on the wheel" time while the Ministry of Labour (MOL) counts "both driving and standby time".
Local and National Government Agencies may be working with different versions of laws, regulations and amendments. This creates confusion and unpredictability for industry, in particular when that industry works on both a local and national scale. For example, the law requires annual leave to be calculated based on the "anniversary system", ie when the employee first started work. However, using the calendar year and a pro-rata allocation for the portion of the year in which the employee started work is much more practical. The MOL revised enforcement rules to authorize use of the calendar year as long as it was negotiated and agreed between the employer and the employee. This is not good as enforcement rules are not consistent with the law.
There are also loopholes in the law and regulations where the law is not clear or silent. This causes uncertainty for decision-makers in industry. For example, when a particular industry evaluates utilising a loophole or gray area of law, it is at the risk of that loophole being closed or changed after a decision and/or investment has been made.
Laws, regulations and amendments may be enforced differently by local and national government. This also causes unpredictability for industry whose work spans local and national government, and may result in the industry being forced to use disproportionate resources to handle inconsistent enforcement. For example there is room for interpretations in land appropriations which could lead to inconsistent judgements.
The speaker offered some thoughts on how to eliminate these issues: Gather public opinions during legislation; reach consensus on how to apply before actual implementation; public disclosure of discussions on regulatory interpretation and cross-county / cross-department workshops for unifying interpretation.
She added that public hearings are sometimes too short to hear the views of many stakeholders. There should also be more meetings between regulators and experts to discuss issues in depth. The public digital platform described by Minister Tang could be very useful but the government will need to communicate with the public about this and meetings on interpretations of regulations should be made public.