“Imagine a community garden”, the Australian National University’s Tending the Tech Ecosystem Report (Report) begins. The Report paints a metaphor of regulator-gardeners cultivating innovation and growth among the different, interdependent technology-plants, while weeding out harmful practices. Landscape architects (politicians and policymakers) set the gardeners’ tools and boundaries. Droughts and floods (tech sector disruption) is rife.
From this figurative play, the ANU Tech Policy Design Centre’s Report goes onto provide a remarkably concrete suggestion to that important question: how to regulate the tech ecosystem?
As the chart of its proposed Tech Policy and Regulation Coordination (TPRC) Model shows: it’s complicated.
The complexity partly stems from the in-depth process of design. The Report’s TPRC Model seeks to incorporate common trends from 32 stakeholders, including regulators, government, industry and society. When you ask this many people, don’t expect a simple answer!
But more importantly, the Report’s complexity reflects the sheer breadth of the ambition in design: to “reward innovations, drive economic growth, strengthen democracy, enhance national security…[and] respond to calls for political leadership, strengthened coordination, increased transparency, access to independent technical expertise…".
To achieve all those goals, and include all those perspectives, the TPRC Model comprises several bodies: a specialist cabinet committee, expert advisory panel and various bodies to facilitate stakeholder coordination. Each of these proposed bodies are central to the Report’s nuanced regulatory response and reflect that there was no support for a centralised super tech regulator. Rather, stakeholders advocated for upskilling and better coordinating existing regulators – with a new, more formal overlay of direction and prioritization from the policymaking and political processes.
The TPRC Model solves for four key challenges in tech regulation: coordination and process; skills and expertise; political involvement; and industry engagement. Unpacking these challenges helps understand how the TPRC Model ends up with the set of advisory and decision making bodies depicted above and how they are meant to work with each other in the Model.
1. Coordination and process
“My overarching view is we don’t need a new or hybrid tech regulator. We just need the existing regulators to do their jobs effectively.” – Thought Leader
Tech regulation is a cross-sector and economy-wide issue that cannot be confined to specific sectors. Effective regulation therefore requires that existing stakeholders come together to discuss tech-related issues and avoid duplication.
The Australian tech ecosystem is currently regulated by several regulatory authorities with various mandates (e.g., ACCC, ACMA, APRA, ASIC), as well as ad hoc non-statutory fora , such as the recently formed Digital Platform Regulators of the ACCC, ACMA, Office of the Australian Information Commissioner and the e-Safety Commissioner, and a host of independent agencies, independent statutory officers and boards which increasingly confront digital issues in their bailiwicks. The current lack of coordination across sectors and among regulators results in disjointed regulatory outcomes, duplication and inconsistencies.
In order to address this challenge, the TPRC Model includes the Tech Policy and Regulator Secretariat, which has the staffing, resources and legal mandate to play a coordination and support role across public and private stakeholders, and maintains a register of proposed and adopted tech policy and regulation. Inclusion of this Secretariat in the TPRC Model reflects the recognition of the importance of staying connected with stakeholders, whose “distinct roles …provides an important check and balance”.
The Secretariat would ensure that consistent interaction between stakeholders forms part of the formal regulatory process, addressing the practical challenge of bringing together many regulatory and government representatives. This would ensure more informed and streamlined regulatory outcomes to best serve the tech ecosystem and civil society, as digital transformation continues to blur sectors and have economy-wide impacts.
2. Skills and expertise
“If you do not have deep domain expertise, there is no way to understand how the tech industry thinks, what their true limitations are, or how they could do it / things differently.” – Leading Regulator
Effective regulation requires regulators and policymakers to have the right skillset and adequate resources to make policy decisions on behalf of the tech industry. Therefore, upskilling existing regulators gives rise to two key questions: what skills or attributes should tech regulators have, and how can existing regulators be equipped with them?
The Report identifies a deep knowledge of business models and incentives driving tech companies as a necessary skill for effective regulation. Good tech regulation requires an understanding of the industry and technology that is subject to regulation – the technology’s limits, benefits and risks.
Stakeholders identified a range of further attributes as critical for effective tech regulation – a diversity of multidisciplinary skills; analytical thinking; an outcomes-focused regulatory toolkit; and base-level digital literacy, amongst others. The Report also recognised a need for access to independent and objective technical expertise and information.
However, the practical realities of equipping each regulator within the tech ecosystem with these skills would be costly, time consuming and would require constant updating to remain relevant in the dynamic industry. Every regulator needs a good baseline of digital skills, but they are never going to have the depth of expertise they will sometimes need to address digital issues in their jurisdiction.
The TPRC model seeks to address this challenge through its Tech Policy and Regulator Expert Advisory Panel. The Panel is an independent body of Australian and international experts who can feed expertise, information and advice to tech regulators on a needs basis. The Panel also overcomes challenges posed by the tech industry’s dynamic nature, and the need to ensure currency of knowledge. Facilitating ad-hoc access to specific expertise combined with a base level of digital literacy would ensure that regulators have a sound understanding of that regulated industry.
3. Political involvement
“Regulators shouldn’t be making policy outside of democratic processes… [otherwise] it will inevitably veer off track from society’s expectations and fracture important governance processes. Society’s trust in regulators is very vital.” – Senior Public Servant
Regulators which have a degree of independence from government are an important feature of our democratic process. But the accepted maxim is that regulators ‘should apply policy not make it’. The TPRC Model seeks to apply this maxim through its Tech Policy and Regulation Coordination Cabinet Committee, and Council – which represent the new formal overlay across the existing regulators, operating at the highest level of government.
The Cabinet Committee facilitates active political leadership throughout the regulation process, including setting priorities and implementing / enforcing regulation, through quarterly meetings of Ministers involved in tech policy and regulation. Political involvement in a new regulatory model is key to ensuring tech policy priorities are acted upon and necessary regulation is introduced.
Properly upholding the democratic process should involve elected representatives directing regulatory priorities, as opposed to independent regulators solely driving them. Digital transformation goes to the heart of the future shape of our economy, society and the democratic process itself. More so than regulation of the ‘static’ economy, effective regulatory process requires the involvement and input of both regulators and government.
The role of the Council sitting below the Cabinet Committee comprise the heads of the regulators and the key policymakers. Its role is to promote enhanced coordination and collaboration in designing and implementing tech policy and regulation. This would not interfere with the existing mandates of policymakers or the independence of regulators but would promote the open exchange of information among those involved in tech regulation to advance a coherent approach and inform policy decisions. It provides an opportunity to educate policymakers and ensure that diverse views inform decision-making. Policymakers and regulators can then separately consider learnings from this collaborative engagement during their respective monthly Tech Policy and Regulators Board meetings.
4. Industry engagement
“There is a perception that being close to industry is a bad thing. This is indicative of a lack of maturity in the relationship between regulators and tech companies and the public conversation about this relationship.” - Industry Executive
When developing tech regulation, it is important to engage with industry stakeholders. The Report recognises a clear knowledge asymmetry between the ‘regulators’ and the ‘regulated’. Stakeholders noted there is a clear lack of industry engagement in the tech regulation conversation. There have been calls for “a more sustainable way for industry to help policymakers and regulators develop the experience” or a non-adversarial forum to facilitate knowledge sharing between regulators and industry.
The TPRC model responds to these calls through its Tech Policy and Regulatory Expert Forum, which enables meaningful deliberation by industry, civil society and consumers on regulatory issues. This Forum ensures that diverse perspectives are considered in the regulatory process and that regulation’s impact on the tech ecosystem can be considered prospectively.
So, the apparent complexity of the TPRC Model does make sense. Distributed models of governance like the TPRC Model can seem harder to manage than the deceptively simple solution of a ‘super regulator’ (whether a new regulator or an existing regulator with an expanded brief).
The TPRC Model recognises both that digital transformation has seeped into every corner of government and regulation, and that it is beyond time that we had a focus on digital transformation the highest level of government.
The TPRC Model is being tested with stakeholders during Phase 2 consultations. For more information see ANU news article.