National Regulators Community of Practice (NRCoP) Conference 2023: preparing regulators for the challenges ahead

The work of regulators is being shaped by a range of changes and challenges: rebuilding after COVID-19, climate change, and new ways of working with First Nations, as well as ever-growing community expectations.

The Australia and New Zealand School of Government (ANZSOG) auspiced National Regulators Community of Practice’s 2023 Conference in Melbourne on 21-22 September, will bring regulators together to think about these and other challenges shaping their work. The conference theme is Regulatory hindsight, foresight and insight and it will feature keynote addresses from Harvard Professor Malcolm Sparrow and investigative journalist Adele Ferguson.

The conference will be a chance for regulators to think more deeply about their roles and daily practice, hear from expert speakers and be part of a range of interactive sessions and workshops.

Topics to be covered include regulatory tools and levers, regulatory failure, using ‘near misses’ to improve regulatory practice, the role of investigative journalism, and working with First Nations communities.

Other confirmed speakers include former Victorian Police Commissioner Christine Nixon,  former ACCC head Graeme Samuel AC, Registrar of the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations, Tricia Stroud, ASIC Commissioner Sarah Court,  Commissioner for Aboriginal Children and Young People Victoria, Meena Singh,  Dr Grant Pink, Professor Veronica Taylor, Professor Valerie Braithwaite and Professor John Braithwaite. For the full program visit the conference webpage.

ANZSOG spoke with two of the conference speakers, Australian National University (ANU) Professor Veronica Taylor and Dr Grant Pink, Director of RECAP Consultants and Pracademic Advisor to the NRCoP, about the key challenges of the fast-changing post-COVID environment.

Professor Taylor is the academic adviser to the NRCoP National Steering Committee and Professor of Law and Regulation the ANU’s School of Regulation and Global Governance (RegNet).

RegNet has partnered with ANZSOG to develop the new Professional Regulator Program, which provides professional development for regulators.

Professor Taylor, and colleagues from the ANU, will host a hands-on demonstration of the program, and its value to regulatory organisations in a dedicated room at the conference, offering conference delegates an opportunity to get a feel for The Professional Regulator program and see why it has struck a chord with regulators across Australia.

Regulating in a time of catalytic changes

For Professor Taylor, the immediate post-COVID era would be a new and uniquely challenging one for regulators.

“This moment is one of a collision of big catalytic changes that are more or less happening simultaneously,” she said.

“We are dealing with recovery from the pandemic, at the same time we’ve got the really noticeable effects of climate change occurring which is driving the need to respond more effectively to man-made and natural emergency situations.”

“We’ve got a real acceleration of technological change, which for many people registers most clearly as the arrival of AI in consumers’ hands, and AI being embedded in new digital tools which are being offered to business and government. We are also now in a historical moment of responding to First Nations’ expectations, politically, socially and through governance and regulation – regardless of the result of the Voice referendum. To support this conversation, Professor Taylor will be moderating a fireside chat with First Nations regulatory leaders at the conference.

Dealing with increased politicisation and community expectations

Dr Pink, who will lead a workshop on ‘Regulatory Levers and Tools’ at the conference, said that communities were expecting more of their governments than ever, and expected more accountability, integrity and transparency from regulators.

“‘How’ you do it, is becoming as important as ‘what’ you do. I am seeing a lot more Freedom of Information requests, Administrative Appeals, and complaints being made against regulators to get them to justify why they acted as they did.”

“Regulators are increasingly being asked for their ‘contribution story’ – so more than detailing their inputs and outputs, it’s more precision about what are the regulatory outcomes that they are contributing to.”

“Fundamentally, being a regulator is like being a referee – every time you blow the whistle you upset someone. But research shows that the majority of people (upwards of 80 per cent) will accept a decision which is not in their favour if they can see the clarity, fairness and transparency of the process.”

Dr Pink said that public servants, including regulators, were feeling that their work was becoming increasingly politicised.

“What can be done in relation to that? In the last two or three years we’ve seen jurisdictions across Australia using a Ministerial Statement of Expectations when there’s a new minister or a reshuffle of portfolios – which lays out a direction and mission. What happens in reply is a Regulatory Statement of Intent which lays out how the regulators will approach regulating and their regulatory functions.

“This is a really good initiative and process because it makes ministers publicly document what it is that they expect, by putting their flag in the ground – and it gives regulators the chance to come back and outline how they can then operationalise and deliver on these expectations. Generally speaking, it enables any difficult or problematic conversations to be had early about what is and isn’t possible.”

Professor Taylor said that while it was not common for governments to reach in and direct independent regulators, a potentially more corrosive issue was when a regulator felt constrained from using the full range of its regulatory tools because of fears of political fallout or ‘worries about what the minister’s reaction will be’.

Collaborating and creating nationally consistent regulation

Professor Taylor also said the biggest challenge for Australian regulators was to get consistency of regulation across the nation and to fill the more specialised regulatory functions that would be required in the future.

“The challenge we are facing at the moment is probably a challenge of resourcing to build shared capability as we start to spin out more and more specialised regulatory functions and start to pick up particular problems of Aged Care or delivering the National Disability Insurance Scheme (NDIS) or of the environment, or of regulating nuclear-propelled submarines.”

Both speakers identified collaboration and a broader understanding of their place in the overall landscape of government as vital for regulators in the future.

Dr Pink said there were many examples where different regulatory agencies had overlapping responsibilities, so it was vital for contemporary regulators to map their co-regulatory relationships and identify those regulators that they had routine interactions with, and those that they could potentially have interactions with.

“This forces you to meet with co-regulators that you work with, and to consciously think about how your regulatory powers could work together in a mutually beneficial way, by layering or sequencing of interventions so that you can optimise regulatory outcomes but also avoid unintended consequences, unnecessary impacts, or additional regulatory burdens for the regulated entity.

“It’s also important for regulators to communicate more broadly with those other perspectives in the wider community and stakeholders because that is where there authorising environment is shaped. They need to keep their finger on the pulse because if everybody is happy, you’re probably not doing your job, or you are not pushing hard enough.”

Professor Taylor said that all regulators, regardless of where they were located in the system, needed to be thinking about governance.

“That means not simply the political arrangements we have in place, but new arrangements for better consultation with stakeholders. For example, there’s a need to rebuild federalism and work on better ways of cooperation because most of the social and economic challenges can’t be solved by a single government at any level,” she said.

“Government regulators need to stop thinking of themselves as the only regulators in town. Business has a huge regulatory role and communities have important regulatory roles as well.

“We need to understand that most of the challenges we are facing, and the adaptation that we need to do, needs to be done together.”

Full details of the Conference including how to register are available here. Registration numbers are strictly limited so we encourage you to register as early as possible.