Principles for the Governance of Regulators Public Consultation draft



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89.Review of decisions


. Citizens and businesses that are subject to the decisions of public authorities should have ready access to systems for challenging the exercise of that authority (OECD 2012). This should include internal review of delegated decisions, as well as more robust external review by a body such as a court. An important distinction can be made between the principle that specific decisions of a regulator should be subject to judicial review, and the regulator’s ultimate accountability for its performance to the legislature and/or Minister.

. Delegated decisions (such as those of inspectors) can have a material effect on regulated entities and should be subject to a timely and transparent internal review process on request. The regulator should advise the regulated entity of any options for internal review when they are informed of the decision. The internal review process should be published and made accessible to regulated entities. The internal review unit should be as operationally separate from those responsible for the initial decision as practicable. Where the review upholds the original decision, the regulated entity should be given a reason as to why the decision was upheld.

. There should also be timely, transparent and robust mechanisms for the external review of significant regulatory decisions. External reviews can act as an accountability mechanism and can improve the quality of the regulator’s decision-making and internal review processes. The regulator should outline on its website the process by which regulated entities may seek an external review. In many cases, such decisions will be able to be reviewed by an Administrative Tribunal or Court.

. Formal complaints can be made about the regulator to an Ombudsman or similar public ‘watchdog’ if the conduct complained of falls within the Ombudsman’s jurisdiction and the complaint has not been able to be resolved between the regulator and the complainant. The contact details for the Ombudsman or similar complaints body should be published on the regulator’s website.




Applying the principles - accountability, transparency and performance
90.Accountability

Has the Minister provided a written Statement of Expectations to the regulator?

Does the regulator publish a corporate plan outlining how the regulator intends to meet objectives set by legislation and the Minister’s Statement of Expectations?

When are the Statement of Expectations and corporate plan reviewed and revised?

Is there a legislative requirement for the independent regulator to produce an annual report to the legislature?

If the regulator is a Ministerial regulator, does it provide the same level of public reporting on its activities and outcomes as would be required if it were an independent regulator?

Do the agreed performance indicators provide sufficient and clear information to enable meaningful assessment of the regulator’s performance across the range of its responsibilities?

Have key outcome indicators for publication in the annual report been agreed with the Minister?

91.Transparency

Has the regulator published its key operational policies?

Does the regulator provide accessible guidance material on these matters to regulated entities?

Are there good public policy reasons for not publishing some of this information, due to:

disclosure of data and informational inputs for decision-making being more likely to lead to gaming of the system; or

confidentiality requirements (e.g. for enforcement actions that have not yet been resolved)?

92.Review of decisions

What is the regulator’s process for internal review of significant delegated regulatory decisions?

Are regulated entities advised that internal review of significant delegated regulatory decisions is available when they are informed of the outcome of the decision?

Is the process transparent, timely and conducted at arm’s length?

Is the internal review unit as operationally separate from the decision-making body as possible?

Are there any strong public interest reasons why all the significant regulatory decisions should not be able to be subject to both internal review and external appeal?

What decisions can be appealed?

On what grounds can decisions be appealed?

During the appeals process, are decisions suspended or overturned, or do they remain in force until a decision has been made?




Box 7. Questions on accountability and transparency

The link between performance and arrangements for accountability and transparency

‎0.: What governance arrangements or mechanisms can encourage good performance management and improvement?



Clear expectations

‎0.: Are the Statement of Expectations and corresponding corporate plan the best mechanisms for ensuring clarity of expectations?



Performance indicators

‎0.: Is public reporting on activities and outcomes necessary and sufficient to provide regulator accountability?



Transparency of operational policies

‎0.: Are there valid limitations on transparency for the activities of regulators? If so, what are they?



Review of decisions

‎0.: Is the principle that decisions that have a significant impact on regulated entities should be subject to appeal a valid one?


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