Now that you know the hierarchy of laws and the basic features of legislation, Topic 2 helps you through the process of developing policy.
2.1 What is Policy?
A policy is a decision by government to use its resources, and take actions, to meet some objective, and typically to solve a problem.
Sometimes a government will have a clear idea of the policy direction it wishes to take and the role of the public service will be to implement that policy decision. On other occasions the government will need a range of policy options and it is your role to research and develop those options.
Law reform is only one of many possible options for achieving public policy outcomes. As stated in topic 1.1.1, law reform should generally be considered a last resort in policy development, not only because it can take a long time, but because of the burden it can place on government to implement and enforce the law and the effect on the community.
Before undertaking law reform you should be confident that it is both absolutely necessary and the most effective way of resolving your particular policy issue. The example below from the United States demonstrates that law reform is not always the best option for addressing a public policy problem:
The Volstead Act
In the early 1900s, the US was facing a range of social problems, including increased crime and corruption. In an effort to address this, a public policy decision was made to introduce a complete ban on alcohol. As a result, the Volstead Act (also known as the National Prohibition Act) was introduced.
Operational between 1920 and 1933, this prohibition was intended to “reduce crime and corruption, solve social problems, reduce the tax burden created by prisons and poorhouses, and improve health and hygiene in America” (see https://www.cato.org/publications/policy-analysis/alcohol-prohibition-was-failure).
Rather than achieve these goals, the prohibition instead saw an increase in alcohol consumption, the introduction of more dangerous forms of alcohol, an increased use of other dangerous drugs and substances, an increase in organised crime and the already stretched court and prison system become even more burdened. Not only did the Act fail on these grounds, but it removed a substantial source of government revenue.
2.2 The Policy Development Process
Deciding if law reform is the best option for your policy is part of a larger process of ‘policy development’. Policy development, also called ‘policy making’ or the ‘policy process’, describes the process governments use to formulate public policy. The policy development process is a series of steps which help guide policy officers.
There is no standard way to undertake policy development and there are a range of different models and examples to assist you. The below is an example which demonstrates that policy development is a circular process (see Bridgman, P & Davis, G 2004, The Australian Policy Handbook, 3rd edn, Allen & Unwin, p26). While you may begin with identifying the issues, when you evaluate your policy at the end you may need to start the cycle again to fix issues which have arisen.
Another useful tool to consider is the 7 steps that the Australian Attorney-General’s Department has created based on experience developing policy for ministers:
This is just one way of thinking about developing policy, but is a helpful framework for considering your policy problem and how best to address it. This framework does not need to be followed precisely. The order in which you do things will depend on your particular policy problem, the timeframes given, what the minister has asked for and your country’s context.
2.3 Your role in policy making as a public servant
While public servants play a critical role in developing public policy, it is not public servants who decide which policy option to pursue. This decision usually lies with the executive part of the government (and in some countries also with the legislature through standing and select committee processes). The executive part of government is the minister (or ministers) or Cabinet. As the elected officials, it is the role of politicians to make the ultimate decision on how the country should run.
The most effective way for a public servant to ensure that the most effective and efficient policy option is pursued is to provide the best quality advice.
2.4 What is the policy problem you’re trying to ‘solve’?
Before starting to think about solutions you must first understand the problem your government is trying to solve. This is one of the most common mistakes policy officers make – they fail to clearly define the problem before starting the policy making process. This results in wasted time and effort developing laws that do not solve the problem.
If you were a doctor you wouldn’t try to prescribe medication before working out what is wrong with your patient – and policy making is the same.
In some cases, getting a clear understanding of the ‘problem’ may be one of the largest tasks in the policy development process. In these cases, you may need to get a basic understanding of the ‘problem’ and continue to gather facts and refine that understanding as you go.
One way to help clarify the policy problem is to consider the issue in terms of a problem tree.
In this analogy, the tree represents the particular policy problem you are trying to address;
- the roots can be considered the ‘root’ or main causes of the problem;
- the trunk represents contributing factors; and
- the leaves and branches represent the symptoms and results of the problem.
If you cut off the branches or leaves then the problem may be reduced, but you won’t have completely solved the problem because the underlying cause has not been identified and addressed. However, if you cut the roots the whole problem can be solved.
In some circumstances the policy problem may be too large, complex or expensive to fully address the underlying cause. In these circumstances it may be acceptable to just address the symptoms. However, even where this is the case, it is important to understand the difference so you can give the best policy advice to government.
2.4.1 Practical ways to understand your problem
To understand the problem you must undertake research. One of the most effective ways to understand the problem is by speaking to those affected. Research can also be done using hardcopy books and papers and electronic documents.
The type and amount of research you will need to do depends on the complexity of the problem, how important it is and the urgency of the task. If your minister wants an answer next week, you will have to be selective about the research you undertake. If you have a longer timeframe you can conduct more thorough research using a broader range of sources.
Below is a list of practical steps you can take to understand your problem:
Ask questions to understand source of problem
- This may require you to clarify the issue with the minister’s office.
- Why is the minister interested in solving this problem? Where has it come from? For example, it may be an election commitment, an issue that has received media scrutiny, or may have arisen from a court case.
- Knowing the source will help you to focus your research.
Desk top research
- How your country has considered and dealt with the issue in the past (eg files, earlier legislative amendments, past committee reports).
- How similar issues have been addressed in other policy contexts, and in other countries.
- Submissions or papers on relevant topics by stakeholder bodies. For example, some representative bodies and lobby groups have position papers on their websites.
- Models, recommendations or standards put forward by relevant international bodies, and relevant areas of international law (see topic 6.4 for some of these resources).
- Academic research. This may involve reviewing the published literature or undertaking primary research.
- Relevant regional mandates and frameworks endorsed by the Pacific Forum Leaders or Pacific Regional Organisations that specialise in that subject area.
Speak to stakeholders
- People in your agency who have dealt with the same or similar problems.
- Key stakeholders (see topic 2.5 on identifying key stakeholders. You may need permission to discuss this issue externally and it may not be necessary at this point. See topic 2.8 on conducting consultations).
- Other agencies – check whether the problem is already being addressed in a different way by somebody else.
2.4.2 The importance of evidence based research
‘Evidence based policy’ refers to situations where public policy is informed by rigorous and objective evidence. It is based on the idea that better policy decisions are made when they are based on scientific and objective evidence, rather than evidence that is manipulated or ‘cherry picked’.
Finding good evidence can be challenging, take time and be costly – but the costs of an incorrect policy that does not solve the problem can be even greater. You must ensure your evidence comes from a variety of sources and that it is rigorous. This will often mean corroborating your evidence – that is, confirming it is true using two or more different sources.
2.5 Who are your key stakeholders?
It is absolutely essential to identify stakeholders early.
What is a Stakeholder?
“Any individual, group or organisation who has an interest or concern in the outcome of a body of work.”
Early in the policy development process it is essential to identify all those who:
- know about the issues;
- care about the issues (because they are affected or have a strong view); and
- are likely to be involved in implementing solutions later on.
Even if a consultation process is still a long way off, there are good reasons to identify early in the policy development process those who will likely have an interest or contribution. These reasons include that:
- you may need assistance defining your policy problem;
- some stakeholders might need consultation from the start (including, for example, interests within government or interests of vulnerable groups);
- the minister may require advice on the issue, including its implications, who is most likely to be affected or have a view on the issue and any potential sensitivities; and
- the likely scope and method of consultations is an essential ingredient in any project planning.
You should consider not only those who may be affected by a policy proposal, but also those who may have relevant experience or expertise that can help to inform the policy development process. As a project goes on, it is important to look at and update your list of those with an interest so that any agency, entity or individual who should be given progress updates, or who should be consulted, is not forgotten.
Another helpful tool for identifying stakeholders is to map them:
Map your stakeholders
This tool prompts you to think about all the relevant stakeholders within four broad categories. These are:
- inside your agency (includes your minister);
- outside your agency but within government (eg other agencies);
- outside government but within country (in your broader society: e.g. NGOs, vulnerable groups, individual citizens, private businesses, religious groups, civil society etc.); and
- outside government and outside your country (e.g. regional or international bodies or foreign governments who are aid donors).
2.6 Have you developed a project plan and timeline?
You should consider timeframes as early as possible in the legislative process. There are a number of things that need to be considered – has the minister made a commitment about timeframes? Is there an upcoming election that will impact on the reforms? How frequently is parliament sitting? Are there other related government priorities? Does the policy involve funds that have been budgeted?
Scoping and planning are important for any policy project that will require a sustained effort over an extended period. The policy process can often be long and overwhelming, so breaking it down into manageable pieces can make it easier. A common weakness in legislative reform is setting an unrealistic or ambitious finish date for a project that fails to take account of the various steps (such as consultation) that will be required. The expectations of ministers and others may then become fixed around that date (or, worse still, public announcements are made), leading to a choice between failing to meet these expectations, re-scoping the reforms or cutting corners.
2.6.1 Project plans
To help guide projects and ensure they progress within an identified timeframe and scope, it is helpful to develop a project plan at the start.
There are many ways of doing project plans, and your agency may have a preferred method. The below are some template ideas for you to consider:
2.6.2 Risk management
When managing a policy process you must consider what risks might impact on the policy’s development and implementation.
When undertaking risk management you should:
Identify the risks (what kind of things could go wrong)
Analyse/assess the risks (what is the likelihood and consequence)
Evaluate them (are we concerned about these risks)
Control them (take action to reduce the risk if necessary and possible)
Something to consider preparing is a ‘risk matrix’. A risk matrix is a tool for analysing risks – determining what the chances are of that risk occurring and how serious the consequence will be if it does occur.
Once you have identified the level of risk using the matrix, decisions can be made about whether you should proceed despite the risk, or what action you can and should take to reduce the likelihood or consequences of the risk.
You have been asked to undertake a policy development process to address a particular issue. However, you are aware that your country is hosting a major regional forum in two months’ time that will use significant staff resources from your department. Inserting this information into the risk matrix you can see that the likelihood of this forum occurring is ‘highly likely’. Depending on the particular policy issues being addressed, the consequence of being under-resourced is ‘moderate’ or even ‘major’. Having identified this risk as ‘high’ or ‘very high’, you might need to think about whether certain resources can be kept isolated from working on the forum, whether additional resources can be used from elsewhere or whether additional recruitment can be carried out. If these options are not possible you will need to factor this into your project plan and timeline.
2.7 What are the policy options?
Once you have a clear understanding of the policy problem, have identified the various stakeholders and developed a project plan, you can start to generate possible policy solutions.
In some cases there will be a clear choice between a particular solution to a problem, or maintaining the status quo (the current situation). However, it is important not to rush to the conclusion that there is only one possible or preferred option. Exploring different policy options is a key part of policy development and the policy process. The process of identifying and exploring options helps to ensure that whichever option is pursued is likely to be the best. Also, the final proposal might draw elements from what started out as a series of different options.
Below are some general rules for developing policy options:
- the more significant the policy problem, the greater the need to explore and provide more options;
- at least one should be non-regulatory (that is, an option that does not create a rule with an expectation of compliance);
- the status quo (or doing nothing) should also be considered, noting the risks;
- a combination of options can also be considered.
There will generally be a range of possible options – from doing nothing, to public information and education campaigns through to law reform.
Law reform is only one possible option among others, and usually the most burdensome option in terms of the time it takes to develop and put in place and its impact on the community.
Some options other than law reform include:
- using the existing law – perhaps what is needed already exists and has just not been well implemented or is not being enforced;
- information or education campaigns;
- monetary options, for example a subsidy, fee or tax (noting this will most likely require legislative reform to support it, see topic 3.7);
- self-regulation, such as voluntary standards or codes of practice;
- no intervention or maintaining the status quo.
This toolkit assumes law reform is the best option available in your circumstances, but there are a number of other options that are common and can be highly effective, and you should explore these.
2.7.1 Considering law reform as an option
A common type of policy action is changing the law to facilitate, enforce, require or prohibit certain behaviours. However, there are a relatively small number of situations that justify direct government intervention in the form of laws.
The decision to undertake law reform should not be taken lightly. Before suggesting this as a possible policy option you will need to ask yourself a number of questions and undertake research to ensure this would be an effective solution to your problem.
As a starting point, it might be helpful to ask yourself:
Are there existing laws governing the issue?
- If yes, what does the problem seem to be with them?
- How can it be fixed? This might involve a legislative amendment or subordinate legislation, but some problems can be resolved simply through a better understanding of the existing framework. For example, the belief that a problem exists may stem from a misinterpretation of relevant law or guidelines.
If no laws are in place, have other countries used legislation to solve a similar problem?
- What have they done?
- Is it working?
What do your stakeholders think?
- Will law reform work in practice?
- Will law reform fix the problem?
Can your proposed reform be implemented?
- Do you have the resources?
In addition to the above, topic 3 and topic 4 below provide a number of additional factors you will need to consider when undertaking law reform. Many of these are not relevant to this policy development phase and will come at a later point. However, many may need to be considered, at least briefly, before you can recommend law reform as an option to your minister. These include, for example, ensuring that your proposal is permitted by the Constitution. You may wish to review topic 3 and topic 4 at this point to determine what extra research you need to undertake.
2.7.2 Assessing policy options
At this stage you will need to assess the various policy options you have developed. There is unlikely to be a ‘perfect’ option. As a public servant it is your role to provide your minister/s with honest and well thought through advice on the viable options, including the costs and risks of those options.
Think about costs and benefits of each option and compare these between options. It might be useful to consider the following categories:
|Time||Will the option take a long time to implement or be relatively quick?|
|Money||Will the option be very expensive or not (resourcing and staff)?|
|Stakeholders||Will stakeholders and the community be supportive or not?
Who will be most affected if the option was adopted (both positive and negative impacts)?
|Solving the problem||Is the option likely to address the underlying causes of the problem and really make a difference or whether it only addresses contributing factors or symptoms?|
|Uncertainty/risk||What are the potential risks and can they be lessened in any way? (see topic 2.6.2)|
Consultations may be required at various stages throughout the policy development process. It is important to consult early, to help ensure that you have gathered as much information as possible to inform your policy development process. However, consultations may also be necessary later (once a decision has been made) as part of the process of informing stakeholders and finalising the details.
Before beginning consultations, think about the following:
Before you consult with stakeholders, you normally need to get permission from the minister, chief executive officer or permanent secretary to do so. For example, you may seek sign off from your minister on any documents to be provided in the consultation, the process to be followed, the timeframes for the consultation, and the list of those to be contacted for comments.
2.8.2 Who will you consult?
To identify as many interests as possible it can be useful to undertake a formal brainstorming process, running through relevant categories of interest.
Categories of interest:
- other parts of your agency;
- other agencies;
- provincial or local governments, or customary or village leaders (where applicable);
- representative or professional bodies;
- individual businesses and business groups;
- employers and unions;
- non-government organisations and community groups;
- vulnerable groups (such as people with a disability, women and girls, children or the elderly);
- particular racial, ethnic or geographically located groups;
- academic or other experts; and
- foreign countries, regional organisations or international bodies.
It is important to think not only of those directly affected by a proposal, but those who may have relevant experience or expertise that can inform the policy development process. The importance of consulting with other government departments cannot be overstated. This helps to ensure possible problems are identified early and can prevent possible conflicts and inconsistencies between legislation being developed by departments. It also avoids reforms being piecemeal. Additionally, consultations with other government departments can assist you to identify further stakeholders outside of government which may be relevant to your consultations.
As a project goes on, it is important to look at and update your list of those with an interest, so that any agency, entity or individual who should be given progress updates, or who should be consulted, is not forgotten.
2.8.3 How will you consult?
There are a range of options and the method undertaken will depend on the size and urgency of the reforms.
Some options for how to consult include:
- public meetings and briefings;
- calls for submissions;
- industry or sector meetings and briefings;
- direct communications to those affected;
- media and advertising;
- social media activities; and
- exposure drafts (i.e. a draft of the legislative reform released for public comment prior to its finalisation).
In addition to the method of consultation, the scale of consultation must also be determined.
Options for the scale of consultation include:
- full public consultations – this is the broadest form of consultations and provides openness and transparency in decision making;
- targeted consultations – may be necessary for industry or sector specific reforms or reforms that are geographically specific;
- confidential consultations – may be necessary for particularly sensitive issues where prompting unnecessary concern or confusion may result if consultations are undertaken on a broader scale; and
- post-decision consultations – urgency or other circumstances may require that consultations are not carried out until after the decision is made. Consultations will still be important in these instances to ensure implementation and evaluation is discussed and settled with relevant stakeholders.
Whatever consultation process and scale chosen, consultations should ideally aim to be:
- ongoing throughout the reform process;
- broad based, to capture as wide a range of input as possible;
- accessible and inclusive;
- not too burdensome;
- consistent and flexible;
- subject to review and evaluation to ensure ongoing effectiveness;
- not rushed; and
- used as a way to help make the decision, not as a substitute for the decision.
Communication plans can be a useful tool for helping guide stakeholder consultations by ensuring the ‘who, what, why, when, where and how’ of consultations are considered and planned.
- Society; and
- Why are they interested?
- Can they influence the outcome of your work or provide information?
- What do you need from them?
- What do they need from you?
- What do they require to facilitate their participation e.g. building accessibility for people with a disability?
- How many people?
- How much notice and preparation?
- In person, telephone, email, radio interviews, newspaper etc
- How will you collect the information?
When and where?
- Appropriate and accessible facilities for the people attending and accessible facilities for the people attending;
- Providing ample time between consultation appointments to allow them to run over and for sufficient time to travel between venues; and
- Avoid scheduling at the same time as other events.
2.9 Presenting options to your decision maker
How you present your policy options to your decision maker will vary from country to country. You may have a particular template or format that is required and this should be adhered to. If not, some suggested headings you could use for a report or submission when seeking approval from a decision maker include:
|Executive summary||Short overview of the issues|
|Introduction||What is the problem?
Why are we looking at this issue?
Define key terms
Outline the structure of the paper
|Body||What is the current situation?
Include supporting evidence and explanations as required
Outline the causes of the problem
|Possible options||One issue or option at a time
Include analysis of each option – costs and benefits
State how the option contributes to solving the cause of the problem
|Conclusion||Summarise the paper
State preferred option (if decision maker agrees to this)
2.10 Checklist before moving on
While the decision maker may choose any option, for the purposes of this toolkit it is assumed that the best option, and the one chosen by the decision maker, is law reform. Despite this, before moving on, it is still essential that you are comfortable with the following topics from this chapter:
|Checklist before moving on from this topic|
|I understand what policy is and the policy development process||2.1 - 2.2|
|I am comfortable with my role as a public servant in the policy development process||2.3|
|I have thought about the problem I am trying to solve||2.4|
|I have considered who my stakeholders are||2.5|
|I have developed a project plan and timeline||2.6|
|I have considered my policy options||2.7|
|I have planned what consultations are appropriate for this policy||2.8|
|I am prepared to present the policy options to my decision maker||2.9|