Review of the ACT Election Commitments Costing Act 2012

Review of the ACT

Election Commitments Costing Act 2012

Prepared by Bill Burmester, Mark Evans and Don Fleming

with the support of Richard Reid

(ANZSOG Institute for Governance at the University of Canberra)

For the Chief Minister and Treasury Directorate

ACT GOVERNMENT

Contents

Acknowledgements 3

Executive Summary 4

1. Terms of Reference 6

2. Interpretation of Terms of Reference 7

2.1. Aims 7

2.2. Principles of engagement 8

2.3. Review design 8

2.4. The organisation of the report 9

3. Legislative Intent 10

4. Evaluation 12

4.1 The perceived benefits of the Act 12

4.2. Implementation of the Act 17

4.3. Estimated Costs 21

5. Findings and Suggestions 22

References 25

Acknowledgements

We would like to express our gratitude to the broad range of ACT politicians, political staffers and public servants who have helped us to assess the strengths and weaknesses of the implementation of the Election Commitments Costing Act 2012. As always, however, the interpretation of data in the analysis which follows remains the sole responsibility of the ANZSOG Institute for Governance.

Professor Mark Evans

Dr Don Fleming

Bill Burmester

Richard Reid

Note: in the text: “Act” refers to the Election Commitments Costing Act 2012; ”Guidelines” refer to the “Guidelines for Costing Election Commitments 2012” issued under the Act on 31 August 2012. The use of capitals in “Party/Parties” designates reference to the three main political parties contesting the 2012 ACT Election (whereas party/parties refer to interested participants in a matter).

Executive Summary

The implementation of the Election Commitments Costing Act 2012 may be viewed a success both in terms of achieving its legislative intent and in its operationalization. It met its obligation to provide political parties in the ACT with an efficient and effective election commitments costing process as well as also providing additional perceived benefits to both political and bureaucratic levels.

There were a broad range of critical success factors identified in the Review, the most important being: the inclusive approach that was adopted to policy formulation (thus ensuring that the Act was implemented with a broad sense of ownership); sound project management of the costing process by Treasury; and, the establishment of effective working relationships between Treasury and political parties. A number of concerns were identified in terms of refinement of the provisions and arrangements of the Act’s operations to mitigate strategies designed to avoid fair and equal scrutiny of a Party’s commitments.

Several possible improvements to the implementation governance of the Act were identified in the findings of the Review that could be considered by the Assembly.

Perceptions by the Parties of the potential for “game playing” under the Act could be reduced by considering the suggestions below in terms of the scheduling and the timing of the release of costings.

1.  Parties, if they considered it useful in their campaign strategy, could be allowed to submit requests that they have not yet publicly announced provided that they specify a date when the commitment will be publicly announced so that Treasury can publish the costing on that day. The same requirements around withdrawing a request should still apply as presently defined.

This suggestion would allow Parties to better manage their own campaigns while maintaining the fundamental principles of the current Act. The downside to this suggestion is that it could lead to a loss of flexibility for Parties to reschedule release of commitments after their early submission if they wished to vary their campaign strategy. It could also lead to requests being withdrawn if the Party changes its policy prior to its public announcement.

2.  Treasury could maintain and publicly issue a running “tally” for each major party during the election campaign.

This proposal would provide public information on the fiscal position of the Parties, and is in line with the release of the pre-election budget update in ensuring key budgetary matters are available to the electorate during the election period. The downside to this suggestion is that, at any point in time, the released progressive totals would reflect the timing of submitted commitments for costing and not the full fiscal impact of Party commitments. This could provide a misleading picture of the various positions of the Parties until the end of the election period. It may also provide an incentive for Parties to delay their costing requests. In any event, the release of the costings would allow any interested person or the media, if they wished, to compile such a tally.

3.  The confidentiality provisions of the Act could be broadened to include any aspect of any dealings that Treasury has with the Parties in the course of undertaking election costings, and so avoid concerns that the incumbent Government had access to information that could be used against other contestants in the campaign.

This suggestion would strengthen the trust of the parties and electorate in the Act, but would need to take account of existing caretaker conventions applying for the same period.

4.  As part of the ongoing monitoring of the Act’s impact, Treasury (or another commissioned body) could compile a data base of access to, and media reporting on election costings material. This could include recording the numbers visiting the information on the Treasury website.

This suggestion would respond to the broader observation as to whether effective monitoring systems are being designed into the operations of the Act to ensure that appropriate data is being collected to evaluate whether the legislation is meeting its public information purpose and facilitating higher quality public policy debate.

5.  As an act of good faith, the Guidelines on which the Act depends for effective implementation could be tabled before the Assembly rises for the election to allow for parliamentary scrutiny, and discussion if warranted, of its provisions.

While the Guidelines issued for the 2012 Election were not in dispute, tabling of future draft Guidelines in the Assembly would help foster commitment to and trust in the Act by the Parties. Going a step further and making them subordinate legislation as disallowable instruments runs the risk of negating these benefits through potentially making them an item for contention and dispute.

1. Terms of Reference

This Review was requested at Part 3, Section 14 of the Election Commitments Costing Act 2012:

Part 3: Section 14 – Review of Act

(1) The Minister must review the operation of this Act after the end of the costing period for the 2012 election.

(2) The Minister must present a report of the review to the Legislative Assembly not later than –

(a) the last sitting day in October 2013;

(b) if there is no sitting day in October 2013, the first sitting day after October 2013.

(3) This section expires on 31 October 2014.

The Review benefited from the inclusive methodology that underpinned policy formulation with the establishment of the Select Committee on the Election Commitments Costing Bill 2011 Exposure Draft which reported in June 2012. Cross bench membership ensured that the Act was formulated within the spirit of consensus demanded from legislation of such democratic significance.

The Terms of Reference specified in the commissioning documentation required the reviewer to undertake a review the Act and Guidelines which focussed on:

(1)  That matters of principle are in the Act and not the Guidelines.

(2)  That during the 2012 ACT Election:

(a)  The costings process occurred in a transparent, non-partisan and objective manner;

(b)  Both political parties and public servants clearly understood their roles and responsibilities;

(c)  Costing timelines and costing period were appropriate;

(d)  The process of requesting costings was easy to follow; and

(e)  The final reporting of the costings was informative.

2. Interpretation of Terms of Reference

2.1. Aims

The purpose of including a requirement to review the Election Commitments Costing Act 2012 within the legislation is in line with “best practice” requirements to assess whether the operation of the Act met its legislative intent and was implemented efficiently and effectively within the allocated project timeframe.

Hence a comprehensive (within given constraints) and independent evaluation of the project will inform the ongoing development of a responsive, co-ordinated costing service system and the strategic policy framework which underpins it. The Terms of Reference established during the commissioning of the Review (above) focussed the assessment around:

1.  developing sound base-line knowledge of election costing practice prior to intervention;

2.  Identifying anticipated impacts;

3.  Describing the intervention and its logic;

4.  Highlighting any critical barriers to effective implementation;

5.  Presenting mitigating strategies for addressing such barriers; and,

6.  Assessing project outcomes at the officer, political, legislative and community levels.

A ‘realistic evaluation’ approach was adopted in the Review (see: Arksey in Taylor and Baloch, eds., 2005; Palfrey, Thomas and Phillips, 2012; and, Pawson and Tilly, 1997) appropriate to an intervention which involves delivering outcomes in a highly politicised setting, namely an election. The review design sought to ameliorate these complexities through the adoption of a co-learning approach with key stakeholders and participants. This involved integrating the views of all the key stakeholders and participants in the review process to discover what works, for whom and under what circumstances. This approach recognizes the importance of focusing on both project process and outcomes. Such an approach also allows for systemic factors influencing the project to be identified and moderated ensuring the achievement of better overall outcomes (see Figure 1).

Figure 1. The learning process underpinning the review

2.2. Principles of engagement

Given the politicised nature of this Review, four principles of engagement were adopted in the Review process:

i.  A developmental approach anchored in designing an evaluation which has broad ownership. The emphasis in this form of evaluation is placed on organisational learning and lesson-drawing.

ii.  The Evaluation Team engaged in an ‘Objective-led’ evaluation i.e. the aim of this evaluation is to determine the relevance and fulfilment of project objectives in terms of their ‘efficiency’, ‘effectiveness’, and ‘impact/influence’.

iii.  We also emphasized the importance of synthesizing the findings through collaborative analysis. This process maximises utilisation of the research and ensures that the evaluation provides information that is credible and useful, enabling the incorporation of lessons learned into the organizational workplan.

iv.  The research also drew on the best traditions of action-based research to allow for the timely integration of findings into decision processes.

2.3. Review design

As noted above, the ‘realistic evaluation’ approach adopted assesses the perspectives of all the key stakeholders and participants to discover what works, for whom and under what circumstances. The Review therefore needed to capture lessons from the perspectives of stakeholders, participants, the Project Team and partnering agencies (where appropriate) on the ingredients of effective project delivery. The evaluation used mixed methods to collect both quantitative and qualitative data on base-line, process, impact, and systems issues. A range of data sources were utilised, including interviews with the Project Team, interviews with users from the three political parties, implementation analysis, impact measurement, and professional reflection sessions. The Review focused on the analysis of data collected through project participants, augmented as appropriate with further data collection activities. This allowed us to build a picture of: a) the base-line (election costing practice prior to intervention); b) the intervention and its logic; c) barriers to action and their mitigation; d) project impacts; and e) broader systemic impacts on the quality of democratic life in the ACT. The following questions were evaluated with project participants:

Box 1. Guiding themes for evaluation

Understanding the status quo
How did the previous system work? What was wrong with it? What was the experience of service provision? What worked and what didn’t? What problems are addressed through the Act?
Perceptions of the purpose of the Act
What do you see as the purposes of the Act as they relate to your particular role in the election process? Is that of value to your role? And, if so, in what ways? How would you measure the success of the Act? Do you think others have different understandings of the intention? If so, how did that manifest itself?
Implementability
How was the implementation of the Act managed? Did the implementation of the Act confront any barriers? Box 2 presents the range of potential barriers to effective implementation and associated questions which we evaluated with informants.

2.4. The organisation of the report

The substantive elements of the report are organised into three further sections. Section 3 assesses the legislative intent of the Act. Section 4 evaluates both the benefits deriving from the Act, and how well it operated in practice within the requirements of the Act itself. Section 5 presents an overview of the Review findings and suggestions for further consideration.

Box 2. Potential barriers to the effective implementation of the Act

Timeframes and game-playing issues
Did the timeframes create difficulties? Did they provide for behaviours that limited the effectiveness of the Act? Do you think parties did, or could, exploit the timeframes? Do you think any party held back announcements until late in the election with the likelihood that they could not be costed in time? There is a political sanction against this – do you think that it is strong enough? Would you change the specified timeframes? As no fees are charged under the Act was the process used as a testing ground, in that commitments were costed but not made public if they looked too expensive? And do you think the Government used the caretaker conventions appropriately in regard to costing of their or others’ commitments, or used the conventions to their advantage?
Compliance issues
In your view, did all parties comply with requirements, in spirit as well as letter of the law? Did Treasury perform according to Act and Guidelines? To your knowledge, were there any breaches of the confidentiality provisions? Do you think there was comprehensive coverage of your and others commitments?
Technical issues
Were the commitments clear enough to cost, or were there iterations with Treasury? In relation to “Discretionary level” commitments, was value added to understanding and accuracy by process? Or could they be dropped from examination? Costings are just one aspect of policy analysis another is assessment of what public value you get from the intervention. Do you think the process should try to quantify benefits? And with the published costing assumptions?
The authorising environment
Do you think the ACT electorate appreciated the outcomes from the process? How would we know? Do you think the process mitigated, or exacerbated political claims around costings? Did it enhance public policy debate and political literacy during the campaign?

3. Legislative Intent