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What’s in a name? Does knowing you’re a regulator make a difference?

7 February 2021

News and media


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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 Arie Freiberg and Monica Pfeffer

The ANZSOG/National Regulators Community of Practice website describes us 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. Although as of January 2021 more than 5000 individuals from across Australia, New Zealand and internationally had taken up the invitation to join the NRCoP, whether they are indeed ‘public sector regulators’ is, in the interests of inclusion, deliberately neither defined nor enforced. The alphabetical list of members’ employers begins with the .au Domain Administrator and ends with the various WorkSafes and encompasses hundreds of entities ranging from the ACT and NT governments through large and small departments to standalone, single purpose regulators.

Whether an independent agency or a division/group within a department is in fact a ‘regulator’ is by no means obvious. It is complicated by at least three dimensions:

1. Lack of agreement on the definition of regulation

These range from narrow (rules) to extremely broad (coterminous with public policy). Regulators whose work mainly focuses on informing and educating duty holders and handling complaints from the public may consider only the hard end of compliance and enforcement as ‘real’ regulation, as do many internal regulators in areas such as HR, Finance, Procurement and Integrity.

2. The surprisingly infrequent use of the word ‘regulator’ in organisations’ titles

This would otherwise give a clear signal as to the relevant government’s intention. Regulators rejoice in names such as ‘Authority’ (Environment Protection Authority), ‘Agency’ (NZ Transport Agency), ‘Commission’ (Australian Charities and Not for Profit Commission), ‘Centre’ (Australian Transaction Reports and Analysis Centre), ‘Office’ (Electrical Safety Office), ‘Board’ (Education Standards Board), ‘Ombudsman’ (Fair Work Ombudsman), ‘Guardian’ (Children’s Guardian), ‘Registrar’ (Registrar of Community Housing), ‘Inspectorate’ (Local Government Inspectorate) and ‘Council’ (Nursing and Midwifery Council), not to mention ‘Branch’ and ‘Division’ for departmental regulators

3. Multiple or even contradictory functions allocated to entities that have important regulatory roles

There are many large public sector entities with multiple roles and responsibilities whose remit includes but is by no means confined to regulating. The regulatory aspect can easily become submerged in the larger whole, making it difficult for staff in regulatory areas to recognise and assert their difference. The OECD’s best practice principles for regulatory governance observe that the assignment of potentially conflicting functions to any regulator should only occur if there is a clear public benefit in combining these functions and the risks of conflict can be managed effectively, a prescription not always honoured in the design of Machinery of Government. For example, regulators may find themselves simultaneously responsible for regulating, supporting, developing and ensuring the viability of their duty holders (See the NRCoP’s recent facilitated conversation on Windows of opportunity in a crisis.

How do you know you are a regulator?

The New Zealand Productivity Commission’s report on Regulatory Institutions and Practices provides a useful guide, suggesting that to be categorised as a ‘public sector regulator’, organisations need to be responsible for at least two of the following:

Making rules or standards
Informing and educating
Granting approvals
Promoting and monitoring compliance
Handling complaints from the public
Enforcing laws

Why does it matter?

Knowing you are performing regulatory functions, and thus a regulator, even when located within a government department, opens the door to the wealth of regulatory research and scholarship, strategic frameworks and the collective wisdom, experience and shared challenges of fellow regulators. Having a ‘regulatory mindset’ supports regulators to think differently from their policy and program delivery colleagues about many aspects of their work, including:

Having a clear idea of their vision, purposes, values, and the importance of using the full array of regulatory tools and powers (see Fundamentals of Regulatory Design)
Their independence in the performance of their regulatory functions, and thus their relationship with Ministers and their offices (discussed in some detail on the 2020 NRCoP webinar with Professors Peter Shergold and Graeme Samuel)
Managing their relationship with their policy department, whether located inside or outside its boundaries
Developing a coherent approach to regulatory posture and risk appetite
Their relationships with their duty holders as well as with civil society advocates and the broader community
Their partnerships, collaboration and information sharing with other regulators (see One space, many regulators)
The training and professional development needs of their team (see Learning to be better regulators: the G-Reg journey and Learning to be better regulators.

Finally, as Janet Schorer, the NSW Kids Guardian, has observed: “The NRCoP provides an invaluable network and resource for us as regulators of child safe practices. Regulation in complex areas such as out of home care and disability services, presents unique challenges. What we have found through the Community of Practice, is the opportunity to sit alongside other regulators, share the dilemmas, the wins and importantly, access a breadth of practical insight and support for practitioners. This is an excellent way to support the ongoing capability development for people working in regulatory bodies.”

Arie Freiberg is an Emeritus Professor at Monash Law School, subject leader for the ‘Governing by the Rules’ subject in ANZSOG’s Executive Master of Public Administration and academic advisor to the NRCoP. Monica Pfeffer is Director, Practitioner Engagement at ANZSOG and leads support of the NRCoP.

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