Designing, maintaining and administering regulatory frameworks is a core responsibility of the Australian Public Service.
Well-functioning frameworks help markets to flourish and protect the vulnerable.
Poorly-functioning frameworks impose unnecessary costs that reduce productivity.
Despite the importance of regulation to our economy and society, day-to-day pressures on governments and departments often mean that weaknesses are only addressed when a crisis triggers a major review.
We’ve heard that the public service should devote more time and effort to ensuring Australia’s regulatory frameworks remain fit-for-purpose.
- How can we build a culture where regulations are continually assessed and improved in the course of normal business, not crisis?
Recent high profile examples also point towards a need to put more focus on, and improve the performance of Australian regulators.
The Regulator Performance Framework was established to do just this, but does it hold up in today’s environment and will it do so in the future?
- What can the public service do to make sure its regulators can achieve their objectives while at the same time supporting the Australian economy?
In reviewing the role of the Public Service one should perhaps read two important articles that looks at how the Public Service and the ability to provide advice to Government has been eroded: The first is INSTITUTE OF PUBLIC ADMINISTRATION AUSTRALIA NSW Spann Oration 2010 Title If I were Premier of NSW in 2011, Speaker Gerry Gleeson date 30 September 2010. This talk best describes the path taken that has led to today's Public Service both Commonwealth and States. The demise started with the Wran's Governments review of the Public Service Board by the ex Whitlam Chief of Staff Peter Wilenski. The end result was the demise of the Public Service Board, which was then abolished by Greinger in 1988 and the introduction of the Senior Executive Service and the famous employment contract clause "employment can be terminated at the Ministers Pleasure" and yes the High Court determined it to be the most unfair contract in the Commonwealth. The second is Paper for Seminar at NSW Parliament House, 24 May 2006 “Serving the People Through Responsible Government: Representation, Accountability and Public Service” Your MOST OBEDIENT SERVANTS by Dr Peter J. Tyler Consultant Historian Having been a Senior executive that witness the changes from the late 1970's to 2005 I experience the demise of the excellence efficiency and loyalty of the public servants. As I have come across this review only this week I have not had the opportunity to review all comments and wish David Thodey and his panel every success in the review. Hopefully a body similar to the old Public Service Boards will be established to provide the independent advise to Governments and of course the various departments and agencies.
Regulation exists to implement policy and regulatory performance is best sustained by: • developing productive exchanges of views among the three communities involved: the policy “owners”, the regulators and the regulated; and, • ensuring transparency for the Australian community.
The banking Royal Commission has highlighted circumstances in which regulators have allegedly failed to exercise their powers effectively in the public interest and those responsible for regulatory policy have turned a blind eye on “regulatory capture”, despite community concern.
Was that an outcome facilitated by lack of interest on the policy side or by a lack of resolution on the regulatory side, or both?
Analysis of events and relationships is the best starting point to work out a better definition of regulatory goals and a better way of managing regulation. But that will necessarily be context-specific.
The emphasis should also be on meeting the primary objectives of regulation without imposing unnecessary cost rather than “minimising the impact” of necessary regulation.
Regulators need to achieve the objectives of the regulation they are implementing.
The question (what can the public service to make sure its regulators can achieve their objectives while also delivering on the economy), reflects part of the problem. It is in some ways the wrong question, including for the following reasons:
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Public servants are in a difficult situation when their clearly defined role is to regulate a particular thing but need also to bear in mind the economic context in which they operate (i.e. make decisions that their minister would appreciate) , and thus find themselves wanting to deliver on the triple bottom line, even when this is not a relevant consideration of the legislation. It leads to decisions that can be considered illegal. It is these conflicts that can lead to allegations that public servants are doing their job poorly, when actually there is ambiguity as to what the job is. (Deliver what the minister is perceived to want? Rigorous adherence to the letter of the law? Make decisions that balance the legislation goals with other triple bottom line goals?)
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We should not forget the Parliament's role, which is to establish regulation that finds the right balance between the economy, the needs of society and the objectives of the specific legislation. This is about design of the regulatory environment, not about public servant decision making in regulatory implementation and compliance.
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The role of the public servant is to support the government of the day, for the benefit of the nation. Despite Bill Clinton's famous slogan, it is not just about the economy. Society, and the individuals in it, are also important. Why use the 'economy' as short hand for the context in which we must operate?
It would be helpful to have clarity across the APS about the roles of the Minister, the Department and the Regulators. Who does the following - policy development, policy implementation, day-to-day administration, research, reporting, etc.? How should relationships between these three entities work? The proliferation of regulators with overlapping jurisdictions has added to the complexity here. Different portfolios will have different needs and so a single framework won't be workable. The large volume of legislation will also specify different models. However, it would be helpful to have a guide for each department. The new Radiocommunications Act seeks to do this in the Communications portfolio.
Another difficult are to address. But suggest appoint and authorise a specialist in the regulatory field to undertake and make the changes in regulation needed to bring up to date with authority to discuss with relevant other experts in the field. Most significantly keep review clear of bureaucracy who always water down on practical changes needed
When partnering with business to deliver services, we have dropped the ball on stewardship. We need to improve our stewardship to ensure that we are keeping our service delivery partners on track, providing robust government/customer outcomes and building public trust.
In terms of regulating the public service in terms of the end user not being in government there isn't any effective regulation. In the regulator performance framework the point of 'annual externally validated self assessment' sums up the public service. From the publics view, defective and criminal administration in the public service with evidence is simply dismissed. Regulation is only written into policies, it never happens.