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Navigating Current Challenges in Regulatory Practice

Navigating Current Challenges in Regulatory Practice

The Navigating Current Challenges in Regulatory Practice Seminar will examine two different areas of regulatory strategy, both of which are currently receiving significant attention from a broad range of Australian regulatory bodies.

On the first day we will examine the practical challenges of implementing “problem-centric” work (which some agencies refer to as “harm-reduction” or “risk-based” projects).

The basic concept has been circulating in regulatory circles for at least two decades, but the practical work of developing mature problem-centric capabilities and institutionalising them is far from done.

Many agencies have had some success with specific projects on an ad-hoc basis, but lack any formal system for managing a portfolio of such projects.

Many agencies have tried to run problem-based or risk-based projects only to watch them run into difficulties given the range of ambiguities and subjective decision-making required, as well as the analytic challenges that such projects inevitably bring.

In this session, we will revisit the essential nature of problem-centric work and the reasons for doing it, but the majority of the time will be devoted to identifying and dealing with the practical obstacles most commonly confronted by agencies that commit to developing a substantial and sustainable problem-centric capacity.

The second day will focus on alternate regulatory structures, and their respective strengths and weaknesses.

Even long-established agencies with legacies of prescriptive (or “rule-based”) regulation have been pushed, of late, or have chosen to migrate towards other structures such as performance-based regulation, principle-based regulation, self-regulation, third party regulation, Safety Management Systems, or other approaches labelled “light-touch,” “right-touch,” responsive, or co-regulatory, etc.

Political fashion has played a role in pushing regulatory regimes one way or another, and some proponents believe that a “light-touch, trusting, self-regulatory” approach is now what constitutes modern regulation and is the best approach for everything.

This session will take a more cautious and discriminating approach. It will provide an opportunity for participants to clarify which systems their agencies use, and why.

Specifically, we will examine how various parts of the risk-management task can be delegated by regulators to industry, or to third parties, and how such structures of delegation match up with different regulatory approaches. The goal is to provide clarity about which classes of risk are best handled by which structures, bearing in mind the varying motivations and capabilities of regulated entities.

A clear understanding of these issues will enable regulators to identify any weaknesses in their current arrangements and provide a reliable foundation when they choose to use or advocate for, one structure rather than another in various parts of their mission and jurisdiction.

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