Improving regulatory language: Its contribution to regulatory capability

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 Dr Grant Pink

Regulatory language1 is important. However thus far it has not been prioritised, or even sufficiently addressed, in terms of forming part of regulatory capability efforts. This is despite the clear value in having a shared language to help communication and knowledge-sharing between regulators in different areas.

Over 20 years ago Professor Julia Black wrote that:

Regulatory conversations, the communicative interactions that occur between all involved in the regulatory `space’, are an important part of most regulatory systems” (p.163) [and] … as to the relationship of language, thought, and knowledge: that language frames thought, and produces and reproduces knowledge (p. 165).2

The fact that language frames thought, which in turn produces knowledge, is critical for regulators. Especially when this knowledge informs their regulatory practices and regulatory interventions.

Two years ago Professor Malcolm Sparrow stated that:

For more than 30 years I’ve been pressing the point in all of my teaching and writing that I think regulators share a huge number of frustrations, a huge number of aspirations, and that if only they would learn each other’s vocabulary, they’re dealing with very similar sets of concepts and there is merit and value in having them share across these lines. [emphasis added]3

Why is regulatory language important to ANZSOG’s NRCoP?

It is important because the ANZSOG National Regulators Community of Practice (NRCoP):

describes itself as ‘an active network of public sector regulators from all levels of government and from every regulatory sector, professional background, role, and level of seniority, who are keen to learn from and with each other’ – and it is hard to learn from each other if you don’t understand each other;
has as one of its core objectives to ‘support participants to become more professional and capable regulators’ – and central to any profession is a certain level of discrete and distinguishable professional language (however described and understood); and
actively supports regulators across Australia and Aotearoa New Zealand to share and better manage their operational and implementation challenges, based on what they have in common – and while regulators do have a lot in common, they do not have anything resembling a common and shared ‘regulatory language’.

Actively discussing regulatory language

On Monday 9 May 2022 ANZSOG hosted a book launch for Navigating Regulatory Language: An A to Z Guide. A panel of regulatory experts discussed and explored how a more common and shared regulatory language and better regulatory communications might advance regulatory practice and improve regulatory outcomes.

This short article outlines the main issues discussed during the webinar and provides some additional context in terms of the book’s purpose, which aims to elevate regulatory words, terms, and concepts to a central place in a regulator’s toolkit – instead of being an optional and highly customised artefact for its primary audience – which includes those:

internal to government and who have core (operational) regulatory responsibilities and functions (i.e. regulatory officers, legal professionals, and subject matter experts);
internal to government and who have non-core (operational) regulatory responsibilities and functions (i.e. policy officers, allied professionals, and non-regulatory officers); and
external to government and who are subject to and/or affected or have interests in how regulation is delivered (i.e. regulated entities, stakeholders, the wider community, and students and scholars of regulatory theory and practice.)

The book will make a potential contribution to the regulatory profession by assisting regulators to work together across different:

levels of government – local, state/territory, national, and international;
levels of practice – practitioner, manager, and executive;
regulatory domains – economic, environmental, and social; and
parts of the regulatory system – with system wide and regulatory stewardship view

What type of book is it, and what’s in it?

It is a cross between a: dictionary, thesaurus, phrasebook, and handbook – and contains:

over 500 words, terms, and concepts – to assist those working in the regulatory field;
six key regulatory concepts and frameworks – that act as anchors and points of triangulation for the words and terms in the book; and
references to seminal and contemporary regulatory literature and theory.

Regulatory work is diverse and as a result staff and agencies often use words interchangeably or in a confused and conflated way – this is inefficient at best or extremely problematic at worst. Several examples of reoccurring words that cause issues include:

regulation, compliance, and enforcement;
educate, engage, and enforce;
audit, inspection, or investigation;
customer, client, or regulated entity

Any issues and challenges with words and terms are exacerbated when regulatory agencies work alongside enforcement and policing (and in some instances military) agencies – which occurred during the Covid lockdowns.

Final thoughts and what can we do?

Regulatory literacy and regulatory communications matter – it matters because they help to improve:

regulatory capability;
regulatory capacity;
regulator performance;
regulatory outcomes; and
a range of other matters that shape regulatory culture.

There are potentially significant advantages in regulators using, embracing, maintaining, and developing a more common and shared regulatory language. Including assisting with:

onboarding of staff into a regulatory agency or their first regulatory roles;
assisting staff transitioning between different regulatory roles and regulatory agencies;
interactions and interoperability between different regulatory agencies; and
conversations between regulatory practitioners, managers, executives, and boards.

In short it is hoped that regulators can use language more effectively and efficiently to discuss, differentiate, and develop pathways and strategies to address or mitigate regulatory issues – and by doing so deliver the regulatory outcomes they are charged with delivering on behalf of government, and for the benefit and protection of the wider community.

1 Note: all words in italics have listings and are expanded upon in Navigating Regulatory Language: An A to Z Guide (Pink, 2021).

2 Black, J. (2002). Regulatory conversations. Journal of Law and Society, 29(1), 163-196.

3 Sparrow, M. (2020). Comment made during NRCoP webinar (October 2020).

Article prepared by:

Dr Grant Pink, Pracademic Advisor ANZSOG NRCoP, Managing Director RECAP Consultants, Adjunct Professor (Regulation and Enforcement) University of Tasmania.

Grant has more than 25 years regulatory and enforcement experience spanning practitioner, management, executive, academic, and consultancy roles, operating at local, state, national and international levels. As a federal public servant Grant was seconded to the Centre for Leadership and Learning within the Australian Public Service Commission to design, develop, and pilot the Regulatory Practitioners and Managers program.

Academically Grant has a MA by research in the area of enforcement networks (2010), and a PhD which considered how regulators build, maintain, and sustain regulatory capability and capacity (2017). In 2016 Grant founded RECAP Consultants Pty Ltd (RECAP). RECAP is a specialist regulatory consultancy providing services domestically and internationally.

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