Good regulatory practice isn’t about arbitrary rules, red tape, and punishment. Good regulatory practice changes behaviours, reduces harms, protects markets and keeps public order.
Not many people understand regulatory practice or regulation
For most people, their concept of regulatory practice or regulation is simply the consequence of non-compliance: getting a fine, being inspected, having to go to court.
I help regulators improve regulatory delivery, stabilise their strategies and strengthen their practice to solve complex compliance challenges.
As a regulatory adviser, I work with regulatory Boards, Executives, Commissioners and Authorities to apply the law and influence the behaviour of individuals and systems of management to deliver healthy regulatory outcomes.
A regulatory outcome may be reduced workplace accidents, improved transport safety, lower rates of pollution or higher standards of care in aged care.
So, What Exactly is Regulatory Practice?
Regulatory practice is the application of the law and implementation of the regulatory regime and it’s obligations on regulated entities (duty holders) by a regulator.
Regulatory practice therefore focuses on the operational conduct and capability of a regulator and those professional practitioners engaged in regulatory delivery.
How Can I Support Your Regulation Practice?
I support regulators, regulatory boards and regulatory executives to use their powers, influence, partners, co-regulators, data, intelligence and people to create good regulatory approaches, strategy, education and compliance programs.
I also support regulators to develop risk-based compliance plans, to target effort and triage resources so they are focused on those harms or issues that represent the greatest risk. I support them to use the skills, expertise and resources they have to effect change, harness goodwill from stakeholders and regulatory peers and create the environment for their people to best use their powers and influence.
My consulting experience can be used to help you determine what is your regulatory approach and philosophy, what is your regulatory posture, then devise strategies to help you influence people and companies to comply.
It means you can identify and better understand individual compliance problems, and work with teams and stakeholders to design solutions and interventions to tackle the problem together.
A regulatory consultant vs a compliance consultant
A compliance consultant is not a regulatory consultant. A regulatory consultant works with regulators and agencies who have the difficult and challenging role of applying the law and influencing the behaviour of individuals, organisations and systems of management to deliver regulatory outcomes. A regulatory outcome may be reduced workplace accidents, improved transport safety, lower rates of pollution or higher standards of care in aged care.
A regulatory practice consultant or regulatory practice advisory may support a regulator to:
- deliver obligations to duty holders or regulated entities,
- create regulatory strategy and compliance plans that deliver on regulatory outcomes,
- improve regulatory practice, capability and delivery,
- develop regulatory frameworks and regulatory approaches to support best practice,
- improve regulatory delivery to reduce unreasonable regulatory experiences of those regulated,
- inform and educate those with the obligation on what the law requires,
- provide materials to support duty holders to comply so they maximise voluntary compliance,
- monitor compliance with those obligations to make sure people are doing the right thing,
- enforce the law where needed, including getting the problem fixed and applying a sanction to punish the non-compliance, recover some of the economic benefit of non-compliance and deter others from breaking the law, or
- encourage regulated parties to go beyond the law where it delivers benefits for the business, their communities or enhances desired regulatory outcomes
A compliance consultant is someone who works with businesses or organisations to deliver on their regulatory and legal obligations. Their job is to help regulated parties to comply. They tend to have expertise in complying with the law, not enforcing it, and very rarely have worked as a regulator.
Regulatory Approach and Philosophy
As an advisory with decades of experience in the regulatory sphere, I can help you determine what is your regulatory approach and philosophy, how you work with individuals and businesses who have a duty to behave in certain ways, how you use your tools and powers, and how you will influence people to comply.
These aspects are often articulated in public compliance and enforcement policies or statements of regulatory intent. I’ve worked with water authorities and independent and departmental regulators to clearly articulate their approach, monitor compliance, enforce the law, work with others and encourage higher performance within their own teams.
Compliance Strategy and Problem Solving
A good regulator, or modern regulator, can apply good regulatory design, theory and practice to any subject matter area, be it transport safety, environmental protection, consumer affairs, child protection, building regulation, or public health. A professional regulator is an expert in applying the law to change behaviours.
Good compliance strategy is the process of pulling apart and understanding individual compliance problems, understanding who and what behaviours are contributing to non-compliance, and the drivers or barriers to those behaviours.
I’ve worked with many regulators to understand individual compliance problems, and I’ve worked with their teams and stakeholders to design solutions and interventions to tackle the problem, refine interventions and measure if solutions have been effective.
I understand that the problem might be felt differently by different people, so not only do they help you better diagnose it – they might be the people who can tell you if your efforts are actually fixing it, or at the very least changing it.
Sometimes you just need to fail fast and try different interventions and see which way the problem moves. Getting the right people to fix the problem is critical to a good compliance strategy.
The biggest risk is problem admiration where organisations get stuck looking at the problem and trying to perfect the solution rather than just giving it a crack and seeing if they can push it in a different direction.
Examples of regulatory practice I can help with
Here are some areas I have been involved with over the years.
Review existing regulatory delivery and practice;
- Regulatory Reviews
- Regulatory maturity mapping and assessment
- Regulatory Practice Reviews
- Licensing and Approval Reviews
- Complaints Processes Review
- Regulatory Capability Reviews
- Intelligence, Evidence and Case Management Systems review
- Review of legislative powers and practices
Review and support development of;
- Compliance and Enforcement Policies
- Regulatory Statements of Intent
- Regulatory Positions
- Approach to sanctions and remedial instruments
Support development of compliance planning:
- Risk Based Compliance Approaches
- Risk Based Planning,
- Annual Compliance Plans
- Regulatory Priorities,
- Response Strategies
- Audit Programs
- Quality Assurance Programs
- Compliance Strategies
- Sector based compliance approaches
Support development of regulatory capability through advice and coaching on:
- regulatory practices
- regulatory approaches
- compliance and enforcement strategies
Advice on corporate reporting structures and data collection to support:
- regulatory performance,
- operational metrics,
- reporting and performance storytelling
Victorian Government: Exploring Businesses Regulatory Experience
I led a team responsible for using business intelligence collected by Department of State Development, Business and Innovation (DBI) Business Development Managers to identify where the business’s experience of the regulatory environment was unreasonable and to collaborate with business, government and regulators to resolve it.
How businesses experience regulation and their perception of its impact on their operations has as much to do with the engagement approach of regulators as it does with the regulations themselves. The concept of ‘grey or beige tape’ which explores how the regulatory or compliance approach of regulators can create additional and sometimes unnecessary burden on business is often overlooked in favour of simplistic approaches to ‘reducing regulation’ or ‘red tape’.
The strategic intent was to reduce red tape using direct feedback from businesses, but initiatives were being proposed without engaging with regulators and without context of the regulator’s role or an understanding of what they were seeking to achieve in applying obligations to those businesses.
- Worked with Departmental officials to recast the role of the team from ‘reducing red-tape’ to reducing the number of ‘unreasonable regulatory experiences’
- Engaged with business development managers to encourage greater focus on how the regulatory requirement was communicated and what if any regulatory engagement was occurring
- Analysed common ‘regulatory issues’ identified by business and engaged with key regulators to further explore how their current approaches supported businesses to comply
- Provided periodic anonymised feedback to key regulators on how businesses were experiencing their regulatory effort
- Engaged regulators and departmental officials at senior levels to support a stronger focus on business regulatory experience
Working with the team, we developed new branch functions and analytics to provide de-identified business feedback to regulators. We engaged them in driving process improvement or improved communications with their regulated community on why information was being required and what risk they were trying to manage.
The focus on businesses regulatory experience and the concept of ‘grey tape’ as part of a suite of measures to understand, communicate and explore regulatory burden supported a shift in regulatory culture around the concept of ‘red tape’. A number of regulators actively sought intelligence from business as part of a ‘Regulatory UX’ initiative and incorporated business feedback into regulatory performance measures.
- Greater focus on ‘grey tape’ and the importance of regulators approach when considering regulatory burden beyond just reducing regulation
- Increased awareness and uptake on exploring businesses experience of regulation when reviewing and evaluating regulatory performance
EPA Victoria: Development of their first
public Annual Compliance Plan
The strategic intent was to make EPA more visible in the field, boost the number of facility inspections, and increase their presence to promote greater levels of compliance with the law.
The organisation had never had a statewide program of targeting inspectorate activities to different areas. Nor had they undertaken a stocktake of what regulatory obligations existed and how desktop assesssments or field inspections would be priortised, delivered and tracked in a methodical way.
- Stocktake of existing regulatory notices and obligations to set plan scope
- Assessment of existing inspectorate capacity to set plan targets
- Allocation of inspection types (e.g. reactive, proactive) based on capacity
- Development of priortisation processes to guide proactive inspection priority and focus
- Development of triage processes to guide reactive inspection priorities
- Production of internal job management processes to guide and track plan delivery
- Publication of a public compliance plan to communicate compliance priorities and provide guidance for companies to prepare in advance of any inspection
I worked with the field operatives from across the organisation and engaged the broader leadership team to drive a focus on field and desktop activity. I also persuaded them to commit to activity to enable companies to prepare in advance of any inspection to maximise voluntary compliance.
The outcome was a reprioritisation of field activity from predominately reactive to planned and strategic compliance projects. This was achieved through the implementation of risk-based targeting models, triage models for responsive work, public pollution reports and licence sites, and changes to field delivery models to focus on inspection and desktop assessment budgets.
- Moved compliance planning towards a proactive evidence and intelligence led regime
- Increased presence of EPA officers in the field from less than 500 to more than 2500 inspections
- Moved volume of reactive – response inspections from more than 70% of workload to less than 50%
- Increased the number of proactive and planned inspections by more than 200%
- Removed inspection backlog over a period of 2 years
EPA increased the number of inspections and desktop activity it completed, and issued more directive notices to remedy non-compliance. As a result EPA saw greater awareness in the public domain.
The Annual Compliance Plan provided a vehicle to inform Victorians, businesses and industry bodies of EPA’s planned and proactive compliance activities over the coming year and formed a key part of its commitment to be a more transparent and constructive regulator. The compliance activities were selected based on real time application of EPA’s risk-based and responsive regulatory model and enabled scarce field and inspectorate resources to be targeted to where they could make the biggest difference to Victoria’s environment by addressing the biggest risks to environment and health.
EPA Victoria: Compliance Problem Solving
Traditional approaches to complex problem solving are almost never effective. There are substantial challenges with problem refinement, organisational ownership and delivery of interventions through non-traditional methods. Solving complex problems needs a different approach and as the then head of EPA Victoria’s Compliance Strategy Area, my team tackled this by applying an environmental problem solving framework.
Environmental problem solving is a structured approach to solving complex environmental problems that are not getting fixed by routine or conventional efforts such as inspections, remedial notices or other traditional enforcement activities. This approach is based on the work by leading regulatory academic Professor Malcolm Sparrow.
- Refinement of environmental problem solving methodologies
- Facilitatory Workshops with key regulatory staff from across peer regulators
- Development of clear problem statements to support common understanding
- Co-design of interventions based on clearly articulated problems
- Testing, piloting and refinement of compliance interventions
I developed a series of facilitatory workshops for multi-disciplinary teams responsible for complex environmental problem-solving processes. The workshops were designed to identify the problem, analyse it, measure it, and create tailored and targeted solutions.
These workshops focused on achieving;
- a stronger understanding of the problems to be resolved
- who the key players were, their motivations and behaviours
- development of structured interventions that could be applied, evaluated, refined and where necessary redesigned to change compliance behaviours
In adopting an open facilitated approach, this enabled not just progress on solving the compliance problem, but also;
- created a shared understanding and awareness of the role, powers and resources of different people, regulatory peers and partners allowing more targeted collaboration and cooperation,
- improved the collective understanding of the problem, including who it impacts, where, when and how you would know if you had resolved it
- the array and diversity of skills, resources, powers and tools available to different regulatory peers and partners and how, using an array and combination of different tools, could help better understand and manage the problem
- how designed interventions could be tried, tested, monitored, refined and rolled out.
- Developed a common and shared understanding of the compliance problem and the need for resolution
- Increased the cooperation between regulatory peers and partners to identify, influence and tackle poor compliance behaviours
- Increased regulatory activity and engagement with targeted sector to encourage improved behaviours
- Leveraged the collective value of different regulators and partners to shift compliance behaviour, increase the levels of deterrence and support companies to comply
- Improved practices and lower rates of non-compliance in the targeted industries
The workshops created stronger relationships between regulatory peers and partners that moved beyond transactional interactions with businesses that were not resulting in outcomes that solved the problem. Workshops drove greater ownership of compliance problems and solutions across the regulator and it’s partners, drawing together people with the right skills to affect change.
Independent Regulatory Advisory Panel
As well as offering support to individual regulatory leaders, I have served on advisory panels and boards, including the Independant Regulatory Advisory Panel for Victoria’s Conservation Regulator. This forum provides external advice to manage difficult situations and provide a level of independent advice from outside of the department.