Setting Regulatory Practice at the Speed of a Pandemic

The last two years, since the emergence of Covid-19, was a period where things changed very rapidly in the regulatory environment. So the question is how do you stand up regulatory responses quickly? How do you learn from others and beg, borrow, steal, admire and adapt to fit a highly evolving and dynamic challenge?

Adapting to relative risks

Initially Covid-19 was at the international level, so the focus was how do we keep it out. Then we moved to a phase where it was in Australia but not in Victoria, so how do we stop it from coming across the border? Then we had the situation where it is in Victoria, but it’s not widespread. How do we stop it from going widespread? And then we have this last phase, which is it’s pretty much everywhere and how do we adapt to the relative risks?

Leanne Hughson, the CEO Energy Safe Victoria, was there from the start. She started working as the Covid Compliance Commander in June, 2020. In March, the existing staff at the Department of Health worked with other departments to stand up the hotel quarantine system. So when she came in, that was up and running and she just thought she was walking into that role, which included making sure that people who are getting off international flights were detained and held in hotel quarantine for two weeks.

‘As we now know’, she says, ‘Covid got out of the hotel quarantine and into the community, so at that point the whole operation really changed. There were some high-risk industries where it was really prevalent, like meat works. So we started seeing health orders written around mask wearing, hand washing, and how many people could be on site. All of this was pre-vaccination.’

Then they started to see it with backpackers, rooming houses and other environments where people lived closely together. So it became a challenge to limit their movement.

Leanne says, ‘One of our other responses was to stand up the Household Engagement Program, and that program had authorised officers, in conjunction with the Australian Defence Force, knocking on people’s doors to make sure they home-isolated like they should be, but also did they need any support, because people were being locked down at that point and they needed a whole lot of support, whether it was food or financial or mental health.’

So there are a few switches there. There is the starting point at airports and ports to restrict people’s movement. In terms of the existing regulatory infrastructure, this is not novel. We already have mechanisms to do quarantine.

But Leanne says in terms of standing up a bunch of officers who will read notices to thousands of people and tell them we’re going to put them in quarantine for two weeks, that was novel. And the hotel quarantine system was completely new. Australia did have quarantine facilities, but nothing to match the scale needed for Covid.

‘The Department of Health HR team had to work very hard to recruit authorised officers to come in and do that work. And we had to invest in getting training for these people, many of whom were pilots or air stewards, good with working with grumpy people in small spaces but had never needed to read legislation or write notices. And they had to make human rights decisions as well, which is not an easy thing to do.

‘They got five days’ training! If you’re a police officer you get six months in the Academy. If you’re a WorkSafe inspector you get three months’ training. By the time I left in March 2020, we had 500 authorised officers working across international seaports and airports, state airports, high-risk industries, the Home Engagement Program knocking on doors, and also at events.’

Off the shelf or build a new shelf?

It’s a challenging task to take away people’s civil rights for two weeks. So what was in their five-day training? Was there something Leanne and her team could implement off the shelf?

Leanne says no, but that they partnered with a fantastic regulatory training organisation, as well as their legal advisors. ‘In practice, two officers would board a plane on arrival to explain what was going to happen. Then another group of officers would speak to all the passengers individually after they deboarded and have them sign an acknowledgment. Then they would be ferried onto the bus and into a hotel.’

As Covid grew, Leanne worked with other regulators and their staff, such as WorkSafe for workplaces and Victoria Police, who patrolled road borders.

But how was it possible to recruit so many officers so quickly?

Leanne explains that the Department of Health would pair an experienced regional-based authorised officer with a new one. They liked air personnel because they had good customer service skills. Because once the detention notice was issued and the passengers were in the hotel, the job was a customer service one, responding to their needs while they’re in the quarantine environment. But going into workplaces and managing events was a different skill set. So they created a pool of retired authorised officers and retired police.

Chris Webb, Commander of COVID Compliance and Enforcement in the Department of Health got involved in February 2021. He says that in the early phase it was constant shifting to sending resources where they were needed, not just getting new people trained, but moving them around.

‘Victoria Police had introduced this concept of the operations orders, which were really fantastic tools. We co-opted that. If you’ve got an officer who is not an experienced regulator, you craft up a really tight script for them to compensate for the lack of training. That really helped us through that period of surging all over the place.

‘Between March and probably July we operated in that mode of having to move people around and try to service the demands. And in addition to the field operations we had the exemptions functions. If you were coming internationally and you thought you had a reason why you shouldn’t have to go into hotel quarantine, we probably had about a hundred applications a week. And once the domestic border schemes came in, there was an equivalent exemption system. These peaked at about 1,000 a day and we had a team of about 200 people running through these. Every exemption had to have a human rights assessment done. So it’s not a tick and flick exercise.’

The importance of orders and scripts

But what exactly is an operations order?

Chris gives QR code compliance as an example. ‘We had a long tail of 30-odd per cent of businesses who were not adopting QR codes. There was a deadline, then a month amnesty, then an announcement of zero tolerance.’ Chris’s team then had to script this into a tight order for their authorised officers. ‘You’re going to go to these businesses, you’re going to look at their signage, are they facilitating customers to check in, have they got a system? So you’ve got a really clear checklist. Not everybody needed to rely on that, but it gave us consistency and was kind of a shortcut. It also gave us confidence so that we could just monitor it through the IT platform.’

Leanne’s team used guidance manuals for airports and seaports, but used operation orders when going to a particular place, such as a joint operation with Victoria Police to check businesses in Bendigo for compliance, so that everyone knew who was the officer in charge, what were the phone numbers, who was going to be there, and how to report back.

She stresses that scripts at that time were crucial. ‘Victoria was first to require international air crew to go into hotel quarantine because it was thought they might pose the same risks as travelers. We had to provide our authorised officers, who had only been detaining passengers, with a script for the flight crews to go into quarantine until their next flight. Equally, there was a provision for Victorian-based international air crew that they could go home, provided they’d tested negative. And then the Home Engagement team would be calling them to make sure they were quarantining at home until their next flight. That was confusing and nuanced, so we really had to have scripts.”

Contrast this with the ordinary regulatory environment, where changes are introduced through training and practice sessions, and incorporated into manuals, procedures or work instructions.

But what happens when you can’t do everything you need to do?

Chris says at the end of the day the authorised officer has to make a decision. You can’t give them the answer, but you can narrow down all the things they need to consider. You continue to evolve, and refine through morning briefings. This was especially important for things like border designations—red, orange and green—which could change from day to day. ‘You have to make sure the team is briefed on what are the rules today, because the rules tomorrow might be different.

‘I think the public perception is that the orders were just to make things easy and blanket rules. But we weren’t enforcing in an absolute sense. We were there to say these are the controls society needs to stop community spread. Our boundaries were constantly being redefined, but it was a self-limiting set of rules.

‘Early days, when Leanne and I came aboard, it was unrealistic to be nuanced. You had to be ruthlessly consistent across the board. But as time went on, the public expectation was you had to be a bit nuanced, because you didn’t want to be whacking people with a big stick who were genuinely just in need of a bit of an education.’

Inform and educate

A key part of regulation is to inform and educate. But how could you inform and educate during the early phases of the pandemic, when so much was unknown and everything was changing so fast?

Leanne says the way people were informed and educated was very different, coming mostly from the daily press conferences. Airports and seaports were straight to enforcement. But with the business community when they went on inspections they would give them an opportunity to comply. But they didn’t see high levels of non-compliance. Events were a bigger challenge, and they worked closely with event organisers in advance so that people could only enter through every second gate, or only every second seat was occupied.

Leanne believes everyone was trying their best. They wanted to be up and running, to do the right thing. ‘We would work what I’d call the left-hand side of the compliance of enforcement spectrum, which would be engagement. And later on there was an Events team, where all of this was nailed down. For example, the Australian Open. That was managed within an inch of its life. But early on, with cricket and soccer, that was really engaging with those stadiums and saying this is what we expect, and we’ll debrief with you at the end of the day. Writing notices wasn’t going to produce the outcomes that we needed.’

Chris says for a one-off event there’s no point writing a notice because by the time you get it printed the event’s over. He found himself dealing more with venues, and the notices were for improvement rather than a punishment. And when they saw good practices they tried to transfer that to others, and that’s the regulatory piece that was most important, to encourage high performance.

He says a good example was the tale of two rodeos. At one rodeo they weren’t checking people in and locals were jumping the back fence. It was a mess. They almost shut it down. The next day another small town rodeo was perfect. For the field officers this was a good experience, because it helped them calibrate how to judge these events.

Interoperability and nuance

Chris says eventually interoperability became the norm and they revisited all their policies and training and effectively made sure everybody could do every job. So they all had a home base, but knew that on any given day they might be redeployed elsewhere.

‘That really gave us the flexibility to stop the lurching and constantly recruiting. So we moved to almost a steady state operation at the end, largely based on the DELP principle of interoperability in fire season, that you have to be able to wear multiple hats. I’m not a believer that you can have a universal soldier regulator, which is a theoretical thing everyone thinks we should be able to do, but I do think you can set yourself up so that people’s role is 70 per cent generalist, and then move people around quickly when you need to.’

Over the life of the operation things have really changed quite dramatically. What started as an effort to keep Covid-19 out of the country became a nuanced program of quarantine, then trying to stop it from moving between borders, then it’s in Victoria, here and there, then it’s everywhere, and regulators have to deal with traditional business regulation and events, and then  vaccine requirements and cases of fraud. It’s quite an amazing array of regulatory interventions, asking the same group of people to do different things.

Leanne believes you can draw on good regulatory practice from other agencies, such as investigation manuals, inspection manuals, and adapt them. You can use existing infrastructure, and have a good policy team to write regulatory policy for the field officials. In other words, find what’s already there and adapt it quicky so that the staff on the ground are properly prepared, trained, supported and led.

Chris believes the fundamentals of regulation can be applied across the board. A lot of the stuff they repurposed from other regulators because it’s just good regulatory practice. Everyone should be confident that you’ve got your first principles. ‘What I’ve found along the way is everyone’s an expert in regulating. Police are telling me how to regulate; lawyers are telling me how to regulate. We still have a challenge to get regulation recognised as a profession. Don’t worry about the details. Be prepared to make a few mistakes along the way. Good regulatory practice will carry you through. And from a leadership perspective, support your people and trust them. Smart people will make good decisions as long as they are supported with the right information.

This article is based on a National Regulators Community of Practice Webinar I facilitated in July 2022. You can watch the full webinar below or read more from Chris in his July 2022 article on ‘Creating Opportunities for regulators to collaborate – reflections from the COVID-19 frontline.’