Making sense of cross-border regulation

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  • Published Date: 28 April 2020

They say good fences make good neighbours, but where does that leave the regulators and citizens whose daily lives cross Australia’s borders, and who have to deal with different time zones, different fishing regulations and even different standards for school buses?

While Australia’s federal system is a sensible response to the geographic and economic scale and diversity of the nation, residents of border communities can find themselves battling the inconsistencies and absurdities of different regulation.

These issues - part of their daily lives - have recently been brought to broader attention as states introduce controls on movement to prevent the spread of COVID-19.

An ANZSOG/ National Regulators Community of Practice webinar on 21 April 2020 Regulating at the Border brought together two public sector leaders whose job is to ease the regulatory tensions for border areas and ensure that they are thought of considered when the policy is hammered out in distant state capitals.

Victorian Cross Border Commissioner Luke Wilson and NSW Cross Border Assistant Commissioner Emma Watts took part in a panel discussion and answered questions from a virtual audience on the role of regulation in border communities.

Mr Wilson said that the biggest issues actually arose from ‘practice differences between jurisdictions’ although these were often blamed on actual differences in legislation. When added to differences in service provision on the other side of the border, this created a complex picture for people who lived and worked across borders.

“Not every difference at the border is a problem, but there are many that become a problem, and for regulators and people who deal with the same issues every day, they become a persistent irritation,” he said.

Victoria has land borders with NSW, South Australia and, technically, Tasmania (down the middle of Bass Strait’s uninhabited Boundary Islet). Mr Wilson said that key issues included ‘P’ and ‘L’ plate rules, business regulations, taxis, fishing, mental health orders, family violence information sharing and Victoria’s recently introduced Voluntary Assisted Dying scheme, which has no counterpart in other states.

He stressed that regulators needed to use discretion and take a practical approach to apply rules, as well as trying to advocate on behalf of border communities.

“Good regulators recognise we have borders and they ‘ask the border questions’. They get out and meet border stakeholders and ask what will work on the ground, and invest in cross-border relationships,” he said.

“They learn and push those learnings back into policy development – recognising that it is often easier to fix things in the design stage,” he said.

Ms Watts, said that the communities affected were largely regional and remote, and were diverse demographically and economically.

She said the role of the NSW Cross Border Commission, which was set up in 2012, was to assist border communities by connecting them with agencies, and to try and focus on the root causes behind individual issues particularly those that could be resolved without legislative or regulatory change or a budget allocation.

Ms Watts started her position in January 2020, and said she had been surprised by the range of issues that arose, from business regulations to service delivery.

She said one of her main concerns now was how surprised people, including NSW government bureaucrats, were by the fact that there were cross border issues.

In response to a question from the audience, Ms Watts said that regulators needed to shift ‘head office thinking by making border issues part of strategy’ and by asking them to visit border areas so ‘the light switch goes on’.

“If they’re not experiencing it every day, they won’t understand the depths of the issue,” she said.

Mr Wilson agreed, and said that there were several reasons why border issues were not handled well in policy development.

“There is ignorance from Melbourne or Sydney-centric governments that don’t think through the implications for the border – they are not dealt with properly or assumed away,” he said.

“There is also stubbornness – some policymakers are so convinced of the purity of their solutions that they won’t give ground, and sometimes there is an assumption that the other jurisdiction does things a certain way but it is never checked.”

“We talk about the benefits of competitive federalism and the way jurisdictions can learn from each other, but people on the border experience the learning process and that is a burden they carry,” he said.

Ms Watts said that the COVID-19 crisis had added even more uncertainty to border communities, with WA, SA, the NT, Queensland and Tasmania implementing restrictions on interstate travel.

She said it had become more important than ever to provide timely and relevant information to communities, many of which had dealt with droughts, fires and now lockdowns.

“Be practical and aware of individual circumstances, because the actions you take now will reflect on your agency. You must not be tone-deaf about regulation.”

She said that the COVID-19 outbreak had shown some of the strengths of the federation.

“States have made their own decisions to protect their people within a cooperative framework, and there are things we can learn in the longer term about how to meet diverse needs in a cooperative way.”

The full discussion is available here: