Public accountability of regulatory and even broader public sector agencies has continued to rise over the past 5 years as evidenced through the number of increased number of Parliamentary Inquiries, Royal Commissions, formal external reviews of agencies working in a diverse range of sectors and industries. This is in addition to growing media scrutiny which has also been the catalyst for examination of agencies as part of the challenges of meeting expectations of stakeholders.
The predictable questions often arise – where was the regulator and what role did they play? What did they know (or should have reasonably have known) about practices presenting harm? When did they know it? What actions or decisions were taken? Our experience in working with investigation and compliance teams across many regulatory agencies continues to highlight the same key elements that continue to pose challenges that undermine organisational reputation and create a whole host of collateral damage. Some of those themes include:
- Appropriate use of powers. Training of staff to ensure that there is a consistent and clear understanding by ALL those using legislative powers as part of their work in understanding the limits of those powers and the context under which they can be applied. Regulatory agencies hold extensive powers in many circumstances however they inherently include an obligation to exercise them appropriately and with systems that can demonstrate high levels of accountability. It is also important to remember that agencies need to document the decision making about when they elect NOT to use their powers in addressing risk of harm as those choices can also attract scrutiny and questions from those impacted or potentially impacted.
- Investigative process. Investigations conducted by regulators need to demonstrate objectivity. For example ensuring relevant witnesses are given an opportunity to put their version forward and ensuring that decision making around this critical step in the process is documented in accordance with organisational guidelines. Poorly documented investigation planning can create perceptions that may well be inaccurate later but certainly leave individual investigators and agencies very exposed.
- Procedural fairness. The onus is on the regulatory agency to demonstrate how their investigations and enforcement actions have met their fundamental obligations.
- Risk based compliance and enforcement. Most Australian agencies have moved to the contemporary model of a risk based compliance and enforcement model. The key feature of successfully implementing and embedding this type of philosophy into an Agency is hinged, however, on how the organisation demonstrates their process around determining risk levels as they continually evolve.
Questions such as: What matters will we investigate? What won’t we? How do we prioritise? How do we manage alleged breach notifications, reported incidents and complaints? How do we determine resource allocation? How does our proactive work (audits, compliance operations) factor in to the risk model? How are qualitative indicators of risk such as stakeholder feedback capture and integrated into organisational risk modelling?
Upskilling and building confidence in staff required to perform regulatory roles is a tangible demonstration and important first step in building a strong investigation and compliance management systems, processes and culture.
For more information on compliance and enforcement training, such as the Certificate IV in Government Investigations PSP40416 and the Diploma of Government Investigations PSP50416, please contact us.
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