The essential role of the oversight body should be to assess:
- the effectiveness of each regulator in discharging its functions and meeting its statutory objects;
- the performance of the leaders and decision-makers within the regulator; and
- how the regulator exercises its statutory powers.
While it may become necessary to develop benchmarks or metrics that serve as a shorthand method to assess performance, formal measures should not be allowed to obscure the fact that the role of each regulator is defined by statute and the tasks entrusted to each regulator by its statute must be the foundation of any assessment. In most cases, that assessment will not be capable of measurement or quantitative expression. For example, the number of proceedings filed, or infringement notices issued, will say little about ASIC’s enforcement culture unless the decisions behind those numbers are evaluated.
Over time, the oversight authority should develop a comprehensive list of items against which each agency’s performance is evaluated. While the broad contours of the areas of enquiry will be largely obvious (for example, licensing, enforcement, consumer protection, regulatory co–operation and market supervision), as ever, the difficulty will come in designing the detail. An important consideration will be how effective the agencies are in enforcing the laws within their remit. (That will determine whether more radical steps, such as creating a specialist civil enforcement agency, should be reconsidered.)
There are three specific matters arising from the reforms that I have proposed in this chapter that should be the subject of oversight and assessment.
The first concerns inter-regulator co-operation. The centrality of regulatory co-operation necessitates that the oversight body review each entity’s compliance with the proposed statutory obligation to co-operate with the other, including fulfilling its information-sharing obligations.
The second concerns the proposed memorandum between ASIC and APRA. Because that document will be central to the regulatory arrangements, the oversight authority’s mandate should include consideration of the extent to which each entity has complied with the terms of the memorandum and the effectiveness of the operation of the memorandum. Any recommendations made by the oversight authority could then be considered and, if thought appropriate, taken up in the regular (at least biennial) reviews of that document.
Third, the oversight authority’s remit should extend to assessing ASIC and APRA’s adoption of the BEAR. In that regard, the oversight authority should be seen as having a role broadly analogous to that of APRA under the current BEAR arrangements.
Beyond that, it will be necessary for the oversight authority to determine how it can assess most effectively the extent to which each entity meets its statutory objects.
The oversight authority’s work should influence and guide ASIC, APRA and the Government. To do so, the authority should be required to prepare a comprehensive assessment of each regulator biennially and provide that report to the responsible minister. The Minister should be required to cause a copy of the report to be laid before each House of the Parliament within 20 sitting days of that House after the report is received by the Minister. The authority should also be permitted to prepare subject–matter–specific reports on an ad hoc basis if the authority considers that necessary.