Stage 1: Plan

Sound governance is the foundation of making the right decisions and ensures structured oversight to maximise the efficiency, effectiveness and credibility of a review. It formalises decision making powers, reporting relationships and integrity principles.

Governance arrangements include:

• clearly defined roles and responsibilities to avoid ambiguity and confusion in decision making and task allocation
• principles and processes for managing conflicts of interest based on Public Sector Code of Ethics, Conflicts of Interest guidelines, and an agency’s code of conduct and policies
• appropriate recordkeeping practices
• communication and reporting protocols with who communicates to whom and how often (including with the receiving authority) to ensure potential issues and changes of direction are identified early and managed appropriately. 

To determine appropriate governance arrangements, consider:

• the scope and nature of the legislation, and how it impacts stakeholders 
• the context and intended outcomes of the review
• available resources including funding and staff 
• whether a structured governance model using a governing body or steering committee is necessary.

The size and composition of the review governing body need to be considered against the terms of reference.

If the governing body is too large it can be difficult to hold regular meetings and may unnecessarily complicate decision making. 

Including representatives of key stakeholders on the governing body may facilitate greater support and cooperation with the review. However, stakeholders may expect greater influence in decision making, and may feel disengaged if the expectation is not met. It is important to distinguish stakeholder consultation from the governance of the review.

Examples of governance arrangements are under Review governance models.

In some cases, it may be preferred to have an independent person or body conduct the review. This could be an employee of another government agency, industry expert or academic.

The following questions may inform decision making on whether an independent person is required:

• What are the intentions of the minister and desired outcomes of the review? (the political will and the agenda of the government)
• Does the agency have strong connections with key stakeholders? (to identify any conflicts of interest)
• Do existing staff have the required technical expertise to undertake the review? (the credibility of the review will depend on the expertise of the people undertaking the review and their understanding of the subject matter)
• Did the receiving authority direct the agency to carry out the review?
• Are there any conflicts of interest that may arise if the agency conducts the review? (For example, an independent reviewer can mitigate those conflicts where the operations and viability of a statutory body are being assessed.)
• Do stakeholders hold strong and divergent views about the legislation under review or the agency’s role in administering the legislation? (An independent reviewer may alleviate stakeholder concerns and enhance the credibility of the review.)

If an external person is appointed to conduct the review, follow Premier’s Circular 2021/17: Report on consultants engaged by government. Consider selection criteria carefully as expert knowledge alone may not be sufficient to lead the review. Important attributes generally include experience in executive management, policy development, relationship management and an understanding of government processes.

In 2017 a ministerial review of the WA industrial relations system was conducted. The review considered provisions in the Industrial Relations Act 1979 and Minimum Conditions of Employment Act 1993.

A barrister was appointed to undertake the review, supported by a member of Parliament  the Department of Mines, Industry Regulation and Safety providing secretariat support. The independent person’s appointment provided impartiality and expertise in industrial relations law.

The terms of reference are approved by the receiving authority and determine what the review will and will not do. They can be broad or specific depending on the issues and available time and resources.

Consider:

• the review clause in the legislation (if applicable) as this is generally used as the basis for the terms of reference
• initial research and legal advice obtained to ensure important issues are included
• political and fiscal environments
• when the review needs to be completed as this helps manage expectations of stakeholders and the receiving authority
• whether to consult key stakeholders as this may be appropriate for reviews which are large or seek to address stakeholder concerns.

Note: Consultation about the terms of reference can be mistaken for consultation about the issues. Be careful to manage expectations to avoid polarising stakeholders.

A review should seek to engage with the Department of Treasury’s Better Regulation Unit as early as possible.

If it is likely when planning consultation (see Consultation) that the review is going to recommend regulatory proposals or legislative changes that are economically significant, reviewers should familiarise themselves with the Better Regulation Program. 

The Program guides the development, design and implementation of regulatory proposals in WA for improved economic and social outcomes. It requires all economically significant proposals to undergo full regulatory impact assessment. The Agency Information Paper and Guidance Notes provide important assistance on how an agency can satisfy the criteria for Consultation Regulatory Impact Statements and Decision Regulatory Impact Statements. An archive of completed impact statements is also available for reference.

The Program involves 3 broad steps for agencies that are developing and seeking approval for regulatory proposals:

1. Apply the Better Regulation Principles (p.4 Agency Information Paper and Attachment).
2. Determine if the regulatory proposal has economically significant impacts (Guidance Note 1).
3. If the proposal has economically significant impacts, engage with the Better Regulation Unit to undertake formal consultation and assessment.
   (Email betterregulation@treasury.wa.gov.au or telephone 6551 4777)

It is essential to engage the Better Regulation Unit early to resolve any uncertainty about the regulatory impact assessment and clarify expectations. Early engagement can save significant time and effort required to comply with the program by addressing the requirements in the review’s consultation strategy and publications. For example, a discussion paper may qualify as a consultation regulatory impact statement.

A sound project plan establishes priorities, milestones and outcomes. It provides a framework for planning each step and allows for business continuity.

Allow enough time in each stage for potential delays, changes, feedback responses and approvals.             

When preparing the project plan:

• identify realistic timeframes early to create clear expectations for the receiving authority, staff and stakeholders
• develop a consultation plan
• consider if a consultation paper is to be published (this is required by the Better Regulation Program if the proposal is assessed as economically significant)
• consider if a professional editor is needed as this requires additional time and funds
• establish a risk management plan
• plan regular engagement with the receiving authority to minimise the number of potential changes late in the review process.

In addition to a project plan, working with your agency’s communication team to create a communications plan provides clarity about what information is provided to whom and at what stage. The plan can include raising awareness of the review, providing regular updates to the agency chief executive and receiving authority, and how the final report is to be distributed.

Consultation plan

An effective consultation plan identifies key stakeholders who delivers valuable feedback and support for the review.

Include known stakeholders, and accommodate new stakeholders identified during the consultation phase.

Stakeholders can be classified into 3 groups based on the impact of the legislation on them and their level of interest in the review:

The plan should also identify the desired outcomes for the consultation and determine how best to achieve these using available resources.

Consultation can be done at any part of the review. Stakeholders should be given enough time to provide their views.

Consider the following questions when developing a consultation plan:

• Are stakeholders aware of the review and desired outcomes of consultation?
• Do some stakeholder groups have special needs such as physical, geographic, or temporal that must be met to allow them to participate?
• What information do stakeholders need to meaningfully contribute to the review?

Go to Stage 3: Consult for more information.