This guest editorial was written for the ANZSOG/National Regulators Community of practice monthly newsletter, highlighting new additions to the Regulation Policy and Practice collection on APO. The RP&P collection brings together a range of practical resources from national, local and state/territory governments, regulatory agencies and external institutions conducting monitoring, inquiries and reviews. You can receive this newsletter by joining the ANZSOG/National Regulators Community of Practice (membership is free) or subscribe to the newsletter directly.
By Alice Turnbull
While the concept of a problem-centric approach to regulation has been around for some time, recognition and interest in the practice is growing among international and Australian regulators. Regulators like the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) are turning to this approach to help solve those thorny, problematic compliance issues that, despite their best efforts, they just can’t seem to get traction on using a more conventional process driven approach.
However, adopting a problem-centric approach is not for the faint hearted – it takes time, effort, leadership and, perhaps most elusively of all, it takes a shift in mind-set away from process-driven or function-driven regulation. The rewards are there though.
It has been a problem-centric approach that enabled NOPSEMA to address a perceived gap between community expectations regarding the transparency of decision-making processes for environmental approvals of offshore drilling and exploration proposals, industry’s practice in conducting consultation at the time, and a growing perception that the regulatory regime was not able to provide for these expectations.
Solving the problem required a combination of actions:
regulatory focus on stakeholder engagement in assessment and inspections
consistent messages to industry and community stakeholders at all levels of the agency
publishing guidance material
advocating for legislative change
and establishing a transparency taskforce, comprising government, industry and community stakeholders, with the aim of better aligning cross-jurisdictional efforts to improve transparency and community confidence in the offshore regulatory regime.
The outcome of these actions, sustained over several years, was a step change in community consultation and openness that helped to build trust in the industry and the regulatory regime.
But what does it take to implement this approach in a regulatory agency? How is it done in practice? NOPSEMA’s experience suggests:
This can’t be done on top of ‘business as usual’. To truly tackle a big, knotty problem requires time and agency reorganisation to create a team of people dedicated to the creation of solutions. These people can still do the business-as-usual tasks (for example assessment or compliance monitoring) but they do those tasks as part of addressing the problem (for example, by choosing inspection scopes that concentrate on key aspects of the problem)
It requires leadership and commitment from the top of the organisation. The agency or department head must be prepared to commit the resources to solving the problem and then must also be prepared to open doors for collaboration – with the regulated industry, with other government agencies, and internationally. Leader’s must be prepared to use their authority and influence to constantly emphasise the regulator’s focus on this problem and their expectations of the industry that they regulate.
It requires a comprehensive strategy with multiple moving parts. There is never one solution to a problem – gains are made by employing a range of strategies, all driving towards the same goal. Strategic enforcements need to be supported by key messaging to industry and in the media; those key messages need to be reinforced by apparent and specific focus on the issue via the assessment process. The regulator will need to identify key influencers outside their agency and leverage those people or organisations to support bringing every stakeholder along on the problem-solving journey.
It requires collaboration and a willingness to iterate and try new things. It is likely to require the regulator to step out of their comfort zone and actively support industry collaboration, and industry efforts to organise around the problem. This can be uncomfortable and requires a delicate balancing act, simultaneously avoiding regulatory capture whilst ensuring sustainable change and industry ownership of the solution.
The problem-centric approach described above has been for a problem that NOPSEMA was actively working on for more than five years. The same principles apply, however, to smaller problems, just at a smaller scale. It still requires a willingness to pause ‘business as usual’, leadership from the top, a strategy with multiple, complementary ways to address the problem, collaboration and a willingness to try new things. After all, what got us to where we are won’t get us to where we need to be. If what we were doing before was fully effective, there wouldn’t be a complex problem to solve.
Alice Turnbull is currently the Assistant Director, Secretariat and Regulatory Improvement in the office of the Chief Executive of NOPSEMA (National Offshore Petroleum Safety and Environmental Management Authority). With tertiary qualifications as an environmental engineer and scientist, Alice’s career has evolved from consulting and regulating in the environment arena, with a focus on environmental and social impact assessment and environmental risk management, to a broader, strategic and multi-disciplinary role on strategic risk management and regulation across fields as diverse as safety, well integrity and environmental management.