Well it is Law Week and frankly I have come out in so many hives in this final week of electioneering with all the off the cuff policies and so on, that I thought it was time for a slightly different, and maybe, unexpected topic.

I will revert to type after the weekend – I hope. Should I hope for an energy policy soon?

When people talk about regulation and regulators, I get the feeling that they’re generally referring to business regulation – not confined to economic regulation, but including things like OH &S and environmental regulations. But regulation is much broader than that. The biggest extension I can think of is the legal system. Laws and associated regulations apply to us all. They are monitored and enforced by the justice system which includes the courts, prisons and the police.

So can we apply some of the same thinking to these regulators as we apply to the business regulators ? I think so. This is particularly when you consider the powers these regulators can wield.

What has got me thinking is the current royal commission in Victoria looking into the use of police informants. (https://www.rcmpi.vic.gov.au/the-commission). But also getting me thinking about this is the more general loss of the community’s trust in many of our institutions. I’m sure they’re connected.

I only know what’s been reported publicly about the royal commission, so I’ll keep my comments high level. But it does seem to me that the police force have kicked a few own goals recently, and it seems to have had trouble owning up to them. Own goals are regrettable and I’m not trying to lessen any need to investigate and remedy causes, but the police are only human so mistakes will be made. But bells should really be ringing when it appears to be not a one off issue but a systematic matter driven, or at least sanctioned, by very senior officers. It’s what happens in the aftermath that I’m most interested in here.

The use of some informants by Victoria Police has raised the ire of the judiciary who have not held back in expressing their condemnation of the practices in question. On the face of it, Victoria Police have struggled to make their case. They have dragged their heels in providing information to the commission and failed to explain why they used dubious methods to obtain information. Their only reason for undertaking the practices seems to boil down to “it was a tough time, we were getting heat for slow progress in these cases, so the ends justified the means.”

It’s not uncommon for organisations to close ranks when things go wrong, but it isn’t very helpful. For regulators it is even more important to seek to shine light on the problem and be open about what happened. How can you trust a regulator which is itself not transparent or accountable? Invariably the best way to do this is not some closed door internal investigation, but a more open approach. It’s not surprising that people are now questioning the efficacy of the Police Standards Division undertaking investigations of these kinds of police incidents. I note the latest reported incident is to also be investigated by the State’s anti corruption body.

Earlier this year the police commissioner downplayed the issue of police officers falsifying random breath testing data. Every little bit can hurt. They failed to take a stand and say this shouldn’t happen and we’ll do something about it. Actually doing something, and showing the public that this is happening, would have been even better.

It is really important that the justice system is seen to be functioning and reliable, trustworthy and accountable. Etching away at this trust is a potentially serious issue for our whole way of life.

Transparency shouldn’t be a last resort, ie through royal commissions, but should be part of the fabric of all good regulators, including the compliance and enforcement aspects of the legal system. If you’re charged with upholding the adherence to the laws of the land then you’d better be pretty much beyond reproach or your credibility will be shot.

Being charged with enforcing the law does not put you above it. On the contrary, it means you must be even more vigilant in your own actions and how you go about your business.

A little more humility and a lot more acknowledgment of the community’s expectations of an open and trustworthy justice system would be a fair outcome for this royal commission.