Policy Problems Seeking Policy Solutions
Carolyn Adams, Macquarie Law School
Presentation to Australian Law Reform Commission Legal Officers, 12 August 2011
* contemporary government challenges papers of Australian Public Service Commission are relevant e.g. Tackling Wicked Problems, Smarter Policy, Challenges of evidence-Based Policy Making.
* Public Policy Development – role played by statutory agencies such as ALRC – ALRC Act 1996 s. 21 and s. 24 – consideration of economic costs/benefits has become a more recent consideration
* ALRC has more scope to pursue more creative, innovative and “riskier” solutions than a Government department
* implementation of original ideas can happen over a long timeframe – e.g. ALRC privacy recommendations from 1983 taken up in 2001
* “principled pragmatism” – analyze stakeholder contributions but don’t feel beholden to them – need at the same time to be relevant, credible and evidence-based
* Right tool for a policy action: Efficient? Effective? Equitable? Acceptable?
* tools include legislation: Legislation Handbook (PMC, 2000); Federal Executive Council Handbook (PMC, 2009); Legislative Instruments Handbook (AGs, 2004); also Office for Best Practice Regulation
* Codes of Practice can be made legally binding (ComLaw site)
* Education and training: essential to support any new or developing policy – can be a cliche, but remain an important complementary tool where behavioral change is important.
Regulatory Approaches and Pragmatic Solutions
Vij Nagarajan, Macquarie Law School
* Regulation broader than law; governance broader than regulation
* Hard laws versus Soft laws
* Pyramid of diverse regulatory approaches: (1) regulations, codes, deliberations (involving stakeholders in the debate, generate trust); (2) deterrence strategies; (3) punitive strategies (laws, courts, penalties etc.).
* Case Study: regulating for more women on corporate boards
* Issues: identifying why it is a problem; different views with competing and limited empirical evidence; options of hard and soft laws – a contested space
* International examples: hard law (quotas) – Spain, Norway, France; soft law ( stock exchange guidelines) – Australia, US; soft law (independent regulator) – Germany, Netherlands, UK.
* regulatory conversation – bringing together multiple strands of argument – stakeholder alignment, even if differently motivated
* shrinking state and cost efficient regulators – backdrop of self-regulation – how to regulate competition in Australia: Trade Practices Commission (now ACCC). – had to be an incremental “softly softly” relationship – “soft polycentricity”
* Polycentric Regulation: three distinctive dimensions: organizational; functional; conceptual – state’s role in hardening soft laws: definitional guidance; participatory incentives; enforcement capability.
* from hard laws to hybrid guidelines – how to secure the public interest in networked environments? – encouraging non-state actors to participate