REGULATORY REFORM

1.0  INTRODUCTION

The regulation of activity of organisations and individuals has long been accepted as an appropriate role for the State. But although growth in regulation by governments typically accompanies growth in the complexity of societies, the types of activities regulated, the extent of regulation and the form it takes, are frequently much contested. A contemporary manifestation of this contest in many countries has been the strong movement towards regulatory reform.

Regulatory reform in the financial sector and in customs, infrastructure, telecommunications, energy, industrial relations and professional services initially attracted most attention. However changes have also occurred little by little in most other areas, until by 2003 it could be said "Lift any stone and neoliberalism will be found lurking" (comment from the floor at conference on neoliberalism of Concerned Geographers and Town Planners, University of Newcastle, 2003). Consideration in this survey is given to OHS (Occupational Health & Safety) and to nature conservation (or environmental protection) because in many ways these areas were assumed to be poles apart and hence likely to span the range of changes in so far as emphasis on human beings is involved.

During the rise to dominance of neoliberalism in the Western democracies over recent decades regulatory reform has much shifted the focus from the personage of the citizen or worker to more impersonal things like "the plan" or to the regulation of the market itself. For example, in the not too distant past mines the work of inspectorates was looking at the safety of the roof in underground places, at the condition of the machinery in these places, and so on. But over time the inspectorial function would shift from those "real" things to the inspection of paperwork, of mine operation plans. Some see this trend as deregulation and others see it as self-regulation. The field of OHS has traditionally concentrated on the human person, so this is examined to see how it may have fared under regulatory reforms. On the other hand, areas for consideration of environmental conservation are typically lightly populated and the focus has always been much less upon human beings. Hence this area too was selected for review, by way of contrast.

Facts in this essay were gathered almost entirely in a class doing the Master of Policy Studies course (Subject SLSP 5040) under Dr. Michael Johnson , School of Social Science and Policy, University of NSW. Gratitude is expressed to all concerned (this is dominantly from the work of AB, and a class presentation on mine safety by JB).

 

1.1  Changing Regulatory Environment

In Australia and many other countries, the older established regulatory regimes were displaced under neoliberalism because of their perceived inhibiting effects on economic development.

With the aim of integrating Australia with a global economy and enhancing the competitiveness of Australian industry, there has been a sustained movement in Australia towards deregulation in many areas where regulation previously existed, and towards use of alternative forms of regulation in areas where continued regulation, or introduction of regulation, has been deemed appropriate. Under the rubric of regulatory reform, policies to bring about such changes have been developed by successive Commonwealth governments, partly as a result of the advocacy by, and with widespread support from within, the business sector.

The environment has been characterised as one of "regulatory flux" (Braithwaite, 1991). The provisions of international trade agreements to which Australia is a party have been a significant influence in the direction of the changes. And the Organisation for Economic Co-operation & Development (OECD) has been a force in disseminating ideas and information which supported the regulatory changes.

 

1.2  Landmarks in regulatory change in Australia

Landmarks in regulatory change in Australia since 1984 include policies to deregulate the Australian currency, allow entry of overseas banks; reduce tariffs; and develop a National Competition Policy to foster competitiveness in all economic aspects of society. The States have independently initiated their own reform agendas and have been drawn into the national regulatory reform process through intergovernmental agreements. The development of consensual mechanisms such as the prices and incomes accord of the 1980s and the Council of Australian Governments has facilitated the reform process. Commonwealth-established bodies such as the Economic Planning Advisory Council, the Industry Commission, the Productivity Commission and its Office of Regulation Review and the Australian Competition and Consumer Commission have been at the centre of developing policy advice for and/or implementing the reform process.

 

 

2.0  ISSUES

2.1  Questions addressed

* What have been the main features of the regulatory reform movement and how has the movement manifested itself in Australia? How can the efforts made to bring about regulatory reform be accounted for? What have been some outcomes of the changes?

* How has regulation in the occupational health & safety and environmental protection areas in Australia been affected by the regulatory reform movement,?

* Has the process of deregulation, evident in some other public policy areas, manifested itself in occupational health & safety and environmental protection regulation? How can this be explained? Do those changes which have occurred in these two areas reflect the influence of forces which led to deregulation in other public policy areas?

* What is the significance of a process of re-regulation observable in some policy areas for future policy in the occupational health & safety and environmental protection regulation areas?

 

 

3.0  BACKGROUND

 

3.1  The nature of "regulation"

From a sociological perspective, regulation is one type of mechanism by which an individuals and organisations may be governed - contrasting processes being those of competition in a market place and those arising from the shared norms and values of a community. Regulation can be taken to include a wide variety of the instruments used by governments to fulfil policy objectives and achieve governance, both by influencing private sector behaviour and the behaviour of the public sector itself. It has been the regulation of industry by government which has been the particular focus of commencing regulatory reform in many countries. In the work of the OECD on regulatory reform, regulation is regarded as including:

'the full range of legal instruments by which governing institutions, at all levels of government, impose obligations or constraints on private sector behaviour. Constitutions, parliamentary laws, subordinate legislation decrees, orders, norms, licenses, plans, codes and even some forms of administrative guidance can be considered as Regulation' (OECD 1995:20).

Rules established by non-governmental bodies, such as self-regulatory bodies to whom regulatory powers have been delegated by governments, are also taken to form part of regulation in OECD work (OECD, 1996b:4).

Although regulation clearly has the objective of encouraging or restraining certain forms of behaviour, it is not always clear on whose behalf this is done. As pointed out by Groenewegen (1991:10) in relation to economic regulation "regulatory intervention invariably has distributional effects." According to Groenewegen, the purpose of public regulatory activity is summed up by the word protection, more specifically protection of the specific groups such as consumers; workers; industry; or the environment. (From the perspective of public choice theory, even regulators are protected by regulation since their own interest are served by it.)

Gow & Maher (1994:114) point out that sometimes costs of regulation are borne by the community at large even though the benefits flow to particular industries. The industries tend to support such regulation. (Regulation of entry to the professions can be seen in this light.) However, the costs of some types of regulation (e.g. consumer protection) are likely to be concentrated on industry with the benefits being spread across the wider community.

 

3.2  Different Spheres of Regulation.

A distinction is often made between economic regulation, social regulation (Head 1991:4) and administrative regulation (OECD, 1997 b:196). One question being pursued in this report is whether regulatory reform strategies have been differentially applied to these areas.

Economic regulation emphasises entry to markets, competition, industry structure, prices and costs (Head 1991:4). The objective of economic regulation is sometimes explained as improving market efficiency. Social regulation relates to health, consumer protection, public safety, industrial relations, environmental protection and occupational health and safety. Here the aim is to 'protect the interests of citizens and consumers' (Head, 1991:4). Under the influence of social activism and consumer rights organisations, there was a great upsurge this area in the in the 1960's and 1970's (OECD, 1997b:196-6), a trend which has continued. Administrative regulation (OECD 1997b:196) is associated with the information requirements and administrative complexities of government programs, often referred to as 'red-tape'.

 

3.3  Instruments of Regulation

Instruments used in regulation range from those in which there a high level of government involvement to those where there is a high voluntary or self-regulatory component, these latter sometimes being referred to as "non-regulatory approaches". Different levels of flexibility, responsiveness to market forces, and cost of implementation and compliance are inherent in the different instruments

In traditional command and control type regulation, standards are prescribed and enforced by a government regulatory authority. Typically specific of operations or equipment are prescribed, to apply uniformly to all. A government inspectorate often forms part of the enforcement system. Serious breaches are subject to possible prosecution in the court system (Gunningham 1994: 256). Such regulation is often claimed to be too expensive; too inflexible and of limited effectiveness.

In performance based regulation, it is the desired outcome - the desired performance, which is specified by government rather than the means by which that performance is achieved. The objectives are thus standard, but not the means. This form of regulation is considered appropriate when specific standards can be readily identified, but where many different technical means exist, or may be developed, to achieve those standards. (OECD 1997c:221). Theoretically, performance based regulation enables cost of compliance to be reduced because it gives industry the flexibility to achieve the performance in the most cost effective way it can.

Process regulation is a form of regulation by government which addresses the problem that performance standards may be difficult to specify. It requires that integrated processes are put in place, requirements often being tailored to suit the needs of an individual firm or industry (OECD, 1997b).

Economic instruments include tradeable property rights which are used by governments in attempts to limit certain types of production or consumption and taxes, subsidies and charges which can also be used to encourage or discourage certain forms of behaviour(Buckley, 1991). Such economic instruments are often advocated to correct a situation in which some of the cost of production, such as pollution effects, is not reflected in the price of goods or service produced. Some insurance strategies can also be used as economic instruments of regulation, for example, where costs of premiums are linked to risk.

Voluntary agreements range between situations where there is an informal understanding between industry and government, but industry sets its own targets and undertakes monitoring and reporting on the targets, to those where there is a form of contract between industry and government, with negotiated commitments forming part the arrangement (OECD 1997a:29). Sometimes such agreements appear to be entered into by industry with a view to avoiding stricter regulation by government. Voluntary agreements are typically used to complement existing regulation and are well regarded for their flexibility, but there may be problems in compliance, especially where targets are not binding.

In self regulation, members of an industry group work together to regulate their own activity, often but not necessarily with the encouragement of government. Development of private standards is one mechanism by which self-regulation may occur. Sometimes government agencies rely on private standards in their regulation especially at local government level (Baram, 1982:53-6). Some forms of self regulation involve use of standard management systems. A form of "mandatory self-regulation" is termed co-regulation in Australia.

 

3.4  Discussion

In the regulatory reform movement there has been a shifting towards alternatives to traditional command and control regulation. The main aim has been to find mechanisms which are more cost-effective, to reduce the cost of implementation by the public sector and reduce the cost of compliance by industry. Mechanisms which allow flexibility in decision-making and which can respond to evolving technologies are sought, these being advocated particularly by business. The need to gain compliance readily is also an issue in choice of instrument, analysts such as Grabosky and Braithwaite (1986) having pointed to difficulty in enforcing traditional regulation. In the cause of ensuring effective operation of markets, issues of certainty and ensuring that competitors in a market are equally subject to regulation, are also a concern.

In some perceptions, the rationale for regulation is to correct market failure (Gow and Maher, 1994:116). Government intervention is justified as a means of overcoming the causes of market failure: the existence of monopolies, inadequacy or asymmetry of information; the existence of externalities (i.e. costs or benefits to production which are not factored into the price of goods or services); and public goods, i.e. outputs which are available for all to consume and whose consumption by some does not affect the stock available for consumption by others. The choice of instrument used in regulation is thus influenced by the type of market failure which is being addressed.

Ayres and Braithwaite (1992a, b) urge consideration in regulatory reform not just of alternative instruments of regulation but alternative systems of regulation, stressing interdependence of state and private regulation, and developing concepts of responsive regulation and partial industry regulation.

From the perspective of gaining compliance, it is suggested by Braithwaite (1991: 24; 25) that greatest effectiveness occurs, where there is system of gradation in enforcement ranging from self enforcement in most cases, with persuasion as the tool, through enforced self-regulation and command regulation with discretionary punishment to command regulation with non-discretionary punishment (e.g. revoking of a licence - rarely used).

While common law actions (on the basis of, for example, negligence or nuisance) could be used instead of regulation to address most environmental and OHS risks, such approaches entail difficulty with respect to obtaining proof and are inclined to be costly (Baram, 1982:6).

 

 

4.0  REGULATORY REFORM STAGES AND STRATEGIES

The Regulatory Reform Movement includes a range of changes to regulation which have taken place widely since the early 1980s but whose origins go back to the 1970s. They can be seen both as the product of changes in economic conditions and global trading relationships, and as a reaction to the increase in regulation which accompanied rising social expectations in post World War II years and the growth of consumer and environmental movements in the 1960s.

It has been argued that greater co-operation amongst countries, more open economies and intensification of economic competition, together with new types of technology, and increasing unemployment, have created the need for new kinds of regulation. Problems with existing regulation have been claimed to include: that it is ‘outdated', exists in 'thick regulatory jungles'; is 'vulnerable to interest group capture'. And that 'regulatory inflation and rising regulatory costs seem inexorable' (OECD, 1997f).

In Australia the changes have been particularly the product of a deterioration in Australia's trading position during the 1980s, as referred to in Hawke (1986), related in part to changes in demand for rural and mineral export commodities. Potential economic benefits have been the main goal of regulatory reforms which have bee seen as a means of removing impediments to competition, helping to improve productivity and export performance.

Fundamentally the direction of change within the reform movement has emphasised the facilitation of market processes. It can be interpreted as arising from a view of economic activity as being the principal force in society and from dominance the use of a market model as the principal tool in analysing the society dynamics. 1991:3,4)

 

4.1  Deregulation, Regulatory Quality and Regulatory

In tracing the evolution in thinking and practice in regulatory reform in OECD countries, OECD analysts suggest a model in which broadly an initial Deregulation Stage has been followed by a stage of Regulatory Quality improvement and this in turn by a stage of Regulatory Management (OECD, 1997c:202-4). The stages are portrayed as being indistinct and not occurring everywhere simultaneously.

According to OECD analysis, the Deregulation Stage came about partly as a policy response to concerns in business (especially small and medium businesses) about excessive red-tape and regulatory burden, and partly because of concern that some aspects of regulation were restricting competition, elevating prices to consumers and impeding trade. It was essentially a reaction against the existing systems of regulation and had an orientation towards smaller government.

The emergence of a Regulatory Quality Stage is regarded in OECD analysis as representing a recognition of the limitations of deregulation, and a perception that since governments were continuing to produce many new regulations, there should be an effort to improve the quality of new regulatory instruments produced, so that they cost less and were more effective. The emphasis here has been on regulatory instruments: making new regulations more simple, flexible and effective and developing improved non-regulatory instruments. Public consultation about regulation and analysis of regulatory impact have been amongst procedures used. The emphasis has been essentially pro-active, although a move towards reviewing existing regulation has also formed part of this stage. In contrast to the Deregulation Stage this Regulatory Quality Stage did not emphasise government downsizing as an objective.

The stage of Regulatory Management has been a further development, addressing system wide issues such as aggregate effects of regulation and globalisation, and taking a long-term strategic view of regulatory reform. According to OECD (1997c:206), building of regulatory management systems includes the adoption of policy for regulatory reform at the highest political levels; establishment of explicit standards for quality of regulation; establishment of explicit principles of regulatory decision making and building regulatory management capacities (for example through such means as creation of specialised units for regulatory reform as well as giving new responsibilities to pre-existing bodies (OECD, 1997c:209). The applicability of this model to the Australian experience is discussed in Section 5.

 

4.2  Strategies Used in Regulatory Reform

Strategies which have been implemented in OECD countries as part of the Regulatory Reform Movement, have included the following, all of which have been used within Australia to some extent, both at Commonwealth and State level. Some Australian examples as given in Section 5 (OECD, 1997c:205) are:

* Articulating explicit policies for regulatory reform and making use of alternatives to traditional regulation;

* Reviewing existing regulations using ad-hoc or one-off reviews and reviewing proposals for new regulation; removing regulation deemed to be anti-competitive, in some economic sectors;

* Establishing explicit quality standards for regulation and developing programs of regulatory impact analysis;

* Establishing specialised permanent units in administration to oversee regulatory reform; developing appropriate reform skills within regulatory bodies; conducting public consultation programs concerning regulation;

* Establishing mechanisms to harmonise and bring about mutual recognition of regulations.

 

4.3  Alternatives to Traditional Forms of Regulation

Part of the Regulatory Reform Movement has involved exploration of different forms of regulation and of non-regulatory approaches as a means of achieving the forms of behaviour which are the goals of traditional regulation. These include tradeable property rights; taxes and subsidies; self-regulation; voluntary agreements; insurance strategies; and various information strategies. Many of the alternatives being experimented with in regulatory reform have a voluntary component or a market basis and in one sense represent a privatisation of a previous public sector role.

 

4.4  Discussion

It is claimed in the Regulatory Reform Movement that the high cost of compliance, inspection and enforcement of traditional regulation impacts negatively on efficiency and competitiveness in the economy (OECD, 1998b). The issues of cost-effectiveness and the desire to promote competitiveness appear to have been the major factors driving the search for alternatives to existing regulation. A trend towards downsizing or limiting growth in the public sector has been incompatible with strengthening of traditional inspectorial and enforcement functions of the public sector. A shifting of costs from the public sector to the private sector is entailed in many of the moves towards new forms of regulation and non-regulatory alternatives.

It is claimed that voluntary and private sector involvement in regulation is needed because public sector can no longer afford to undertake it (Baron, 1997). But an alternative would be for the private sector to support resourcing of the public sector sufficient to enable it to carry out regulation.

 

 

5.0  THE AUSTRALIAN EXPERIENCE OF REGULATORY REFORM

5.1  Federal Issues

The nature of the federation has been a significant influence on the course of regulatory reform in Australia. Much regulation occurs in areas which are primarily or have traditionally been, state activity. On one hand, both Commonwealth and State governments have independently initiated reforms of regulation within their own spheres, in some cases the states having been the pace setters of reform. On the other, there has been a strengthening of mechanisms of joint deliberation and action by the Commonwealth and States through the Council of Australian Governments (COAG) and Ministerial Councils. COAG under its 1995 Competition Principles Agreement, part of National Competition Policy, has now taken the lead in a nation-wide process of regulatory reform. A Commonwealth-State Committee on Regulatory Reform reports to COAG. The foreign affairs power of the Commonwealth, the requirements of international agreements and need for mutual recognition of standards and regulation with trading partners are some factors which have contributed to a strong Commonwealth role in regulatory reform.

 

5.2  National Competition Policy

Amongst many policies for regulatory reform developed in Australia since 1980, the National Competition Policy (Hilmer et al, 1993), stands out because of its potential to bring about systematic, penetrative, and far reaching change. In 1992, following agreement by COAG on the need to generate greater competition in the economy, an Independent Committee of Inquiry, chaired by Frederick Hilmer, was established to consider future development of national competition policy and legislation. The wide-ranging recommendations of the Hilmer report (Hilmer et al, 1993), constitute the basis of a National Competition Policy and are supported by a set of associated legislative and administrative arrangements endorsed by COAG in April 1995.

Regulation was one of the major issues specified in the terms of reference for the Hilmer Inquiry. The Inquiry reported that there was need for a new mechanism 'to ensure that regulatory restrictions on competition do not exceed what is justified in the public interest.' It recommended that all Australian governments should 'adopt a set of principles aimed at ensuring that statutes or regulations do not restrict competition unless the restriction is justified in the public interest' (Hilmer et al, 1993:15). It suggested that:

* 'any restriction on competition must be clearly demonstrated to be in the public interest;

* new regulatory proposals (should be) subject to increased scrutiny, with a requirement that any significant restrictions on competition lapse within a period of no more than 5 years unless re-enacted after further scrutiny through a public review process;

* existing regulations imposing a significant restriction on competition (should be) subjected to systematic review to determine if they conform to the first principle, and thereafter lapsing within no more than 5 years unless re-enacted after scrutiny through a further review process;

* reviews of regulations (should take) an economy wide perspective to the extent practicable' (from Hilmer et al. 1993:16).

Under the Competition Principles Agreement (CPA) of April 1995, systematic review of all existing legislation and other regulation is required. with the aim of keeping anti-competitive effects to a minimum. Review of regulation entails identifying restriction on competition and the costs and benefits of such restriction; and considering if there alternative means to achieve the same ends, including approaches which are non-regulatory (OECD, 1996a:27). The Council of Business Regulation was set up under the CPA to provide advice on priorities for review. The Commonwealth has agreed to provide additional general purpose payments to the States and Territories to enable them to carry out the reform programs agreed under National Competition Policy (Holmes & Argy, 1997:94). The National Competition Council (NCC) established as part of the NCP reforms, assesses progress made by Commonwealth, State and Territory in implementing programs under the Competition Principles Agreement.

 

5.3  Strategies of Regulatory Reform in Australia Since 1980

Examples of some of the strategies of regulatory reform which have been implemented in Australia since 1980 are listed below:

* Reviewing existing regulation

In the decade from 1995 'the stock of Australian regulations (was) reviewed more often and more thoroughly than in any other OECD country' (OECD 1996a:25). Commonwealth review was mostly on an ad hoc basis, often embracing government business enterprises as well as the private sector, and often carried out by the Industry Commission, established in 1986. Since 1993, the National Competition Policy (NCP) has provided the basis for systematic review of all existing regulation nationally, a process which is ongoing. According to Holmes & Argy (1997:116), as a result of NCP, by mid-1996, the Commonwealth had scheduled 96 pieces of legislation for review and the States and Territories 1500. The field was very diverse and included building codes; food standards; business laws; fisheries; primary products; professional standards; health and rules for workplace safety.

* Removing regulation deemed to be anti-competitive

In the 1980s, there was a major focus on deregulation in the financial sector and trade. Decisions were made to deregulate the Australian dollar (1983), allow entry of overseas banks (1983), lift restrictions on foreign investment, reduce tariffs, and deregulate the domestic airline industry. Since 1993, the scope of regulatory review has broadened, under the aegis of National Competition Policy. Deregulation as a focus has given way to developing different forms of regulation - different in terms of mechanism and different in terms of purpose and subject. One stimulus for the genesis of new regulation has been the corporatisation and privatisation of activity previously carried out in the public sector. As Rhodes (1997:91) has noted, where privatisation occurs, ownership of an activity gives way to regulation of that activity. Ensuring community service obligations are met is just one aspect of the new regulation.

* Making use of alternatives to traditional regulation

Consideration of use of alternatives to traditional regulation is a widespread requirement in regulatory review processes throughout Australia. Performance- based regulation and use of mandatory or voluntary codes of conduct are, in particular, both increasing (OECD, 1996a:38). The Intergovernmental Agreement on the Environment (IGAE, 1992) promotes use of market mechanisms in pursuit of environmental goals.

At the state level, a 1995 NSW government guide to best practice in regulation stipulated that a regulator should 'use market forces where possible; the key to best-practice regulation is that it uses dynamics already present in the market place to achieve its objectives (NSW, 1995, quoted in OECD 1996a:22).

* Establishing explicit quality standards for regulation

A Commonwealth regulation review policy of 1986 established quality standards for regulations and regulatory processes. Many other statements have since been developed at State and Commonwealth level. The COAG Principles and Guidelines for National Standard setting and Regulatory Activity, endorsed in April, 1995, establishes best practice for development of standards by Ministerial Councils and intergovernmental regulatory bodies. A requirement of the Commonwealth and some States is that a proposed regulation represents 'minimum regulation necessary' and a requirement everywhere is that 'other solutions such as self-regulation or market based measures have been fully considered and regulation is shown to be the best policy instrument available' (OECD 1996a:24).

* Developing programs of regulatory impact analysis

Regulatory impact analysis is a component of regulatory review in the Commonwealth and in all States and the ACT. Progressively such analysis has become more rigorous and instead of being conducted only by regulators themselves, typically involves input from specialised review units, and public consultation and often formal regulatory impact statements (RIS) (OECD, 1996a:26).

* Establishing specialised units to oversee regulatory reform

Advice on Commonwealth regulation review policy is provided by an Office of Regulatory Review (ORR) established in 1989 and now located in the Productivity Commission. Regulatory review units exist in all States and Territories.

* Reviewing proposals for new regulation

Benefit-cost analyses have been carried out since 1985 for Commonwealth bills, lower level rules and decisions which have regulatory effects that impact on business, to inform decisions (OECD, 1997d:23).

* Harmonising and bringing about mutual recognition of regulations

In 1992, all governments except Western Australia signed a Mutual Recognition agreement (OECD, 1996a:20)

 

5.4  Stages of Regulatory Reform in Australia

How effectively does the OECD model of stages of regulatory reform (OECD 1997c) reflect the reality of the Australian experience?

Activities corresponding to each of the Deregulation, Regulatory Quality and Regulatory Management Stages can be recognised in Australia. And, as reported in other countries, deregulation was the most prominent element of early part of the movement in Australia, with systematic attention to regulatory quality and regulatory management coming later in as the focus of reform widened. The early enthusiasm for deregulation as a means of solving economic problems appears to have been considerable in Australia, being embraced both by government and big business. But later the slogan changed to 'minimum effective regulation'. At the present time, it is the application of rationality and managerialism to regulation which is the most obvious feature of the widened reform agenda.

One factor complicating analysis is that until the NCP in 1993, the States and Commonwealth were taking reform initiatives independently and out of phase with each other. Another complication is that not all policy areas have been equally or simultaneously the target of reform. At the time when deregulation began, it was finance, telecommunications and transport sectors which were the highest priority for reform. Other policy areas have been drawn into regulatory reform later, and have been addressed by regulatory reform strategies which emerged later.

Deregulation persists amongst the tools being used in regulatory reform. The present nation-wide process or regulatory review and Standardisation is aimed in part at repeal of existing bodies of regulation and so, in effect, at reducing regulation. This does not in itself mean however that areas of activity previously regulated are now unregulated: rather, they may be regulated in a new way.

 

5.5  Re-regulation

A process sometimes termed re-regulation has emerged in the wake of deregulation. The introduction of new forms of regulation to facilitate the operation of markets and the development of new regulation to influence former public sector activities which have now become corporatised or privatised fall into this category. Significant questions about the re-regulation concern how it differs from its antecedents in terms of content ('What is regulated?') and process ('What form of regulation is used?') and in terms of who loses and who gains from its effects.

 

 

6.0  ASPECTS OF OHS REGULATION

Responsibility for Occupational Health and Safety (OHS) in Australia lies principally with the States. But increasingly, through intergovernmental co-operation mechanisms, the Commonwealth has become active in this area, and there have been many initiatives to unify national practice. The National Occupational Health and Safety Commission (NOHSC) with representation of State and Federal government and of peak employer and employee bodies was established by the Commonwealth Government in 1985 to provide leadership in this area. At the state level, regulatory authorities include those concerned with general OHS issues (e.g. Workcover in NSW) and those dealing with specific industries (e.g. Department of Mineral Resources in NSW).

Some insights into changing approaches to OHS regulation in Australia are illustrated below by reference to: the influence of the UK Robens Report; the work the National Occupational Health and Safety Commission (NOHSC); the recommendations of a 1995 Industry Commission Inquiry into OHS; examples of use of alternatives to traditional regulation in OHS and public safety areas; and an industry specific case study related to mine safety regulation.

 

6.1  Influence of the Robens Report (1972) on OHS Regulation in Australia

The 1972 Robens Report on safety and health at work in the UK (Robens, 1972) led to introduction of a new kind of OHS legislation in Australia in the early 1980s. Previously, regulation had traditionally been prescriptive, specifying in great detail such things as machine guarding and boiler design. But in the early 1980s, in addition to the requirements of existing regulation, new legislation imposed on employers an overarching duty of care (Hopkins, 1995:74), without specification as to how that care was to be exercised. Subordinate legislation and codes of practice were prepared by tripartite working groups to supplement the legislation, but the system allowed considerable variation in implementation.

This form of regulation, sometimes regarded as mandatory self regulation currently forms a major part of OHS regulation in Australia, though it co-exits with other forms.

In his UK study, Robens reported extensive and confusing legislation and took the view that apathy in the workplace was a major cause of safety problems. His concern was that the amount of state regulation should be cut and that there should be greater reliance on personal responsibility and voluntary effort (Baldwin 1995:127). 'The primary responsibility for doing something about the present levels of occupational accidents and disease lies with those who create the risks and those who work with them' (Robens, 1972, quoted in Baldwin, 1955:127). This view led to recommendations based on the assumptions that:

* the main function of law in workplace health and safety was to provide a framework in which industry itself could take responsibility for safety and health in a form of self-regulation;

* safety and health at work should be the responsibility of all workers - not just management.

The Robens recommendations foreshadowed a system in which in which there would be worker representation in health and safety decision -making and in which the role of an inspectorate would be largely to guide and advise. The system in Australia has come to be called co-regulation.

A salient feature of the growing component of the Australian occupational health and safety which is derived from the Robens system, is that it represents a move from prescriptive to performance - based regulation. As discussed by Emmett (1995) there is an umbrella Act which sets out the general duties of all parties. Regulations under the legislation set performance objectives and state what needs to be done, but do not set out how it is to be done. Codes of practice are developed to give guidance on one acceptable method of complying with the Act, but non-compliance with the actions specified in the code of practice is not in itself an offence. The onus of proof is on the responsible party to prove, if challenged, that the action taken was 'as good as' that in the approved code of practice' (Emmett, 1995:3). In contrast, in the use of prescriptive legislation. many details are embodied in regulations and non- compliance with these is an offence.

Many employer groups welcome the flexibility of the Robens approach and the notion that workers should themselves should take some responsibility for their own safety. But some employers favour prescriptiveness because of the perceived certainty it entails. Unions have hitherto favoured involvement in the tripartite processes which have evolved from the Robens approach. But under current Commonwealth workplace relations legislation, and in a climate of diminishing union power, the future role of unions in such processes is problematic. Unions have supported the development of standards within the performance based system and have criticised recent curtailment of this activity at a national level (ACTU, 1997).

Critics of the Robens approach note that Robens assumed that there is a natural identity of interest between the workers and employees on health and safety matters, whereas it has been demonstrated that on economic grounds, this frequently is not the case (Hopkins, 1995; Baldwin, 1995:134). Moreover, Robens assumed that workers should be more safety conscious whereas research suggests that most accidents result from unsafe systems of work.

Although establishment of a performance-based system can have considerable resource implications for government in developing it, it may be less intense in its requirements for government involvement in its implementation. Notably, a government inspectorial function has been seen as less necessary than in traditional regulation. (Inspectorates are generally being wound back, with some consequent problems, such as those identified in the mining industry by ACIL (1997). The strong workplace focus of performance-based systems is consistent with the current industrial relations climate in Australia which emphasises greater flexibility and more negotiation at the enterprise level.

 

6.2  Work of the National Occupational Health & Safety Commission

Between 1991 and 1997, a major project being conducted by the National Occupational Health and Safety Commission consisted of the systematic development of performance standards and codes of conduct to replace prescriptive state rules, and to used nationally. (Emmett, 1995). However the program was curtailed in 1997. Influenced by reports from the Small Business Deregulation Taskforce (Bell, 1997; DIST, 1997a), a May 1997 communiqué from the Labour Ministers Council (LMC) stated that:

'There will (henceforth) be less emphasis on development and/or promulgation of national OHS standards and codes developed by the NOHSC. The prior agreement of the Labour Ministers Council as the peak OHS body will be sought before any further national standards or codes of practice are developed. Where new standards or codes are supported they will be consistent with the overall objective of regulatory reform' (LMC, 1997).

Subsequently, NOHSC stated that it would 'ensure standards and codes of practice are developed only when there is a demonstrated need, and they further the goals of simplicity and clarity in regulation' NOHSC, 1997).

Referring to 'massive cuts ' to OHS funding, the ACTU (1997) noted that in 1996 funds to NOHSC had been cut by $6.63 million and that there was a further cut of $528,000 in 1997. Commenting that research, training for employee representatives, and development of new standards, had been severely affected by the cuts; and noting that 'under the direction of State and Federal Labour Ministers, development of new national (OHS) standards has come to a standstill', it stressed that it saw a 'continuing need for development of new OHS Standards, particularly for new and emerging hazards' (ACTU, 1997).

This highlights a potential problem with the performance based regulation towards which the Australian OHS system has been shifting: to be effective it must be supported by appropriately researched standards and codes of practice. But present events suggest that resources to do this will not continue to be provided. Former Chief Executive Officer of NOHSC, Dr Edward Emmett (1995) portrayed the development of national performance standards and codes by the NOHSC as an integral part of regulatory reform process in Australia, with the capacity to improve national competitiveness. But he also stressed at all times the capacity of the research-based codes to make the regulation effective. The recent downsizing of the NOHSC suggests that OHS effectiveness may not be the main value pursued in future changes to the OHS system in Australia.

 

6.3  Inquiry by Industry Commission into Occupational Health & Safety 1994/5.

In 1994/5, the Industry Commission, conducted an inquiry into Australia's approach to occupational health and safety, with terms of reference which required the inquiry to 'have regard to the established economic, social, environmental and regulatory reform objectives of the government' (IC 1994). Conclusions and recommendations of the Inquiry included the following:

* Legislation should be consolidated and rationalised to form a 'single enabling act';

* Performance style regulations should replace prescriptive standards where possible and 'guidance contained in codes of practice' should be available;

* 'Industry-based of codes practice' should be prepared (in a consultative framework)and recognised by government;

* Firms need 'more flexible regulation';

* Firms should be permitted to implement their own best-practice safety management systems to 'identify, assess and manage the health and safety systems associated with the enterprise';

* National uniformity should be implemented by template legislation to promote inter-state equity;

* Participation by employees plays an important role but OHS committees should not have a regulated form and health and safety representatives should not necessarily be compulsory in workplaces (IC, 95 fide NSWMC, 1997b:6-7).

In these recommendations can be recognised many of the hallmarks of the Regulatory Reform Movement. The suggestion for flexibility at the enterprise level but uniformity amongst states is notable. The recommendations on how employee participation is to be achieved represent, in effect, a form of deregulation. And the reference to industry-based codes of practice may amount to suggesting private development of OHS standards - a partial privatisation of the regulatory process. Essentially 'writing-out' unions from the process, they are consistent with current workplace de-unionisation and with developments in workplace relations legislation since 1996.

 

6.4  Examples of Alternatives to Traditional Regulation in OHS and Public Safety

Some examples where alternatives to traditional prescriptive regulation have been used are:

* Replacement of prescriptive state rules with performance standards and codes of practice which would provide the basis for performance -based regulation was the major focus of NOHSC work in the 1991-1997 period. These standards and codes apply nationally. Their development was intended to be accompanied by the repeal of prescriptive legislation which they supersede.

* In the coal mining industry in NSW, government inspectors have been encouraging major operators to develop their own management systems for core safety risks (high consequence/low probability events such as spontaneous combustion) (NSWMC, 1997a:18).

* A notable example of self regulation related to public safety occurs in the meat processing industry where there has been replacement of a detailed system of government meat processing inspections by a self-regulated quality assurance scheme a move which according to the Industry Commission may ultimately produce considerable cost savings (IC, 1995).

 

6.5  Case Study: NSW Mine Safety Review, 1997

A major review of mine safety in NSW in 1997 provides some evidence of changing regulatory philosophies in that sector.

The NSW Mine Safety Review (ACIL, 1997) found that coal mine inspectors within the Department of Mineral Resources were highly confused as to their role and unclear as to how to perform their duties. This situation can be interpreted as arising from the 'mixed signals' which inspectors were receiving from the competing models of regulation in their environment. At the time of the review, inspectors were attempting, with diminishing resources, to administer a body of safety legislation which very diverse, some of being traditional command-and control regulation and some reflecting the Robens philosophy. A long-standing practice of non-enforcement had evolved. Inspectorate leadership had been emphasising the advisory aspect of the inspectorial role and was encouraging major operators to develop their own safety management systems. And sections of coal industry management were urging greater opportunity for self-regulation (NSWMC, 1997a). The review concluded that there should be strengthening of the traditional inspectorial role and a greater focus on enforcement.

Some coal companies told the Review that 'the detailed prescriptive approach taken in the Coal Mines Regulation Act and its Regulations encourages a compliance mentality and inhibits greater moves towards best practice' (ACIL, 1997:69). The Review recommended against developing legislation which introduced a more 'enabling approach in general, which might dispense with much of the present detail and require in place establishing of safety management systems'. It did however recommend that consideration be given of a two tiered system of regulation (ACIL, 1967:70, 81) in which sites which had demonstrated a capacity for good safety management might be excluded from the requirements of the lower tier, a recommendation which parallels the systems of responsive regulation advocated by Ayres & Braithwaite (1997a) and which indicates the influence of supporters of greater self-regulation in the coal industry.

 

6.6  Discussion

* Since 1980 changes based on the Robens system have become the most pervasive feature of OHS reform in Australia during the regulatory reform movement. Yet ironically while Robens recommendations have now been implemented under the banner of regulatory reform (e.g. Emmett, 1995), it is not clear whether Robens original recommendations sprang from the same origins as the Regulatory Reform Movement more broadly. Robens' overt concerns were not economics, efficiency, competitiveness or markets. His recommendations represent his own prescription for effectiveness that has to do with perceptions of common interest of workers and employers and notions of 'self reliance' and 'taking responsibility for self'. These latter can be interpreted as expressions of the liberal thought which has accompanied neo-classical economics as the theoretical underpinning of the Regulatory Reform Movement in its widest expression But Robens' focus was not economic issues.

* Apart from the Robens-based changes, occupational health and safety regulation was not much touched during the 'deregulation-dominant' phase of the Australian regulatory reform movement in the 1980s. The long period in office of the ALP, and the political power of the union movement may have contributed to that, although it can be argued that there may then have been widespread consensus about OHS as an area where regulation was needed. Corbett (1996: 97) observed 'No political party seriously proposes (as of April 1996) that public sector agencies be relieved of responsibility for regulating and enforcing safety in the work place.' Even though, as has been shown here, the Robens changes have involved a shift towards some self-regulation, they not readily fit with the 'deregulation in some sectors'. They are more akin to actions identified with the Regulatory Quality stage of the OECD model (OECD, 1997c).

* The regulatory reform movement as a whole was driven principally by goals of

economic efficiency and competitiveness. So initially it was regulation in areas other than OHS, which were perceived to be most significant for reaching those goals and which were pursued in early regulatory reform: these are the areas (e.g. finance) where early 'deregulation' was most manifest. But since the regulatory reform agenda has widened, especially since 1993, all aspects of economic activity have become subject to the regulatory reform process. OHS regulation is influenced both by OHS-specific reform initiatives, such as the 1994/5 Industry Commission Inquiry (IC, 1995), but also by across-the-board policies such as those mandating regulatory impact analysis and review of existing regulation in light of reform principles. In 1997, in the government's response to the Small Business Deregulation Task Force report (DIST, 1997a), an intention to speed up review under NCP of regulation in both OHS and environmental areas was announced.

* Unions see OHS as an industrial matter. Inevitably OHS regulation is intertwined with other aspects of workplace regulation. While OHS itself has not been deregulated, the deregulation of labour inherent in the Commonwealth Workplace Relations Act can be expected to have significant influence on how OHS is managed in the future.

* The greater use in OHS of instruments which have a market basis (e.g. wage premiums) is advocated by some overseas analysts (e.g. Vicusi, 1995a,b). (The philosophy underpinning such an approach is not at odds with that of the current direction in Australian industrial relations.) Some regulatory authorities presently use the incentive of savings in workers compensation insurance to gain management commitment to OHS. But analysts such as Hopkins (1995) refute the claim that 'safety pays', and stress the importance of continued regulation and enforcement.

* The NOHSC has seen the system of national standards and performance codes it was developing as an aid to national competitiveness (Emmett, 1995). The fact that its programs have been curtailed perhaps foreshadows a move towards less OHS regulation or increased use of economic instruments or approaches where there is a greater voluntary or self regulation component.

 

 

7.0  SOME ASPECTS OF ENVIRONMENTAL PROTECTION REGULATION

Growing environmental consciousness in Australia in the last three decades has resulted in a considerable body of regulation aimed at environmental protection. Initially much such regulation was initiated in the States. But following its 1974 enactment of the Environment (Impact of Proposals) Act, the Commonwealth has become increasingly involved in environmental regulation. The 1992 Intergovernmental Agreement on the Environment (IGAE, 1992) provided a framework for defining the respective responsibilities and roles of the States and Commonwealth, with some amendment to roles agreed in 1997 (DPMC, 1997). A major stimulus for Commonwealth involvement has been the need to meet environmental obligations under international agreements to which it was a party.

 

7.1  Major Influences in Environmental Regulation in Australia

A significant factor in development of environmental regulation in Australia in the last decade has been the influence of ideas expressed in the report Our Common Future (Brundtland, 1987). These have formed basis of an international move towards endorsement of principles of ecological sustainable development ESD as at the United Nations Conference on Environment and Development at Rio de Janeiro in 1992 (UNCED, 1992).

The Brundtland report, published by the World Commission on Environment and Development, paved the way for future bringing -together of economic and environmental policy systems, by suggesting that 'current patterns of economic growth could not be maintained on ecological grounds'. It proposed a new kind of development, defining development as sustainable if: 'it meets the needs of present generations without compromising the ability of future generations to met their own needs.' (quoted in EPA, 1996:25). Since 1987, the concept of ESD has been widely accepted internationally as a framework for action on environmental issues.

The Intergovernmental Agreement on the Environment (IGAE, 1992) made a commitment to the principles of ESD emphasising the need for maintenance of Australia's international competitiveness and for effective integration of economic and environmental considerations in decision-making. Its principles, in effect, provide an imprimatur for use of market mechanisms and economic instruments as a means of reaching environmental goals. It provides that:

* 'environmental factors should be included in the valuation of assets and service;

* polluter pays i.e. those who generate pollution and waste should bear the cost of containment, avoidance or abatement

* the users of goods and services should pay prices based on the full life-cycle costs of providing services, including the use of natural resources and assets and the ultimate disposal of any wastes

. environmental goals, having been established, should be pursued in the most cost- effective way, by establishing incentive structure, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems'

(IGAE, 1992, Cl 3.5.4).

 

7.2  Use of Alternatives to Traditional Regulation in Environmental Protection

Examples of use of alternatives to traditional regulation are:

* Under the NSW Protection of the Environment (Operations ) Act 1997, a system of load based licensing is being developed for pollution control. Fees paid for licences will depend on the quantity of pollutant discharged, the relative harm from each pollutant and conditions in each type of receiving environment. This aims to providing an incentive to minimise pollution (EPA, 1996b).

* An environmental standard coming into voluntary use in Australia is ISO 14000 under which an organisation develops an environmental management system. This entails setting of targets, progress monitoring and continual review. Although participation in the scheme is voluntary, a firm opting to participate must comply with all conditions of the scheme (Palovic, 1996). Environmental management plans are required for all operating mines in New South Wales.

* Tradeable property rights are being introduced in a number of schemes for pollution control and harvesting of natural resources. One scheme of tradeable permits is the Hunter River salinity management scheme: coal mines in the area generate saline water; each mine is allocated a tradeable permit under which it can discharge to the river a certain fraction of the salt load being allowed to enter the river, credits being given for good environmental performance. Another scheme is the system of tradeable permits introduced in NSW in 1994 as part of a new fisheries management system. A system of tradeable permits for carbon dioxide emissions has been recommended in 1998 as part of Australia's greenhouse strategy in the report of an inquiry by the House of Representatives Standing Committee on the Environment, Recreation and the Arts.

* Taxation deductions which are available to business for environmental protection include those for expenses to prevent, combat or rectify pollution of the environment or to treat, clean up, remove or store waste (Boer et al, 1994:229).

* Voluntary agreements to establish best practice in waste reduction have been signed by leading construction companies under the WasteWise Construction Program established by the Australia and New Zealand Conservation Council (DIST, 1997b)

 

7.3  Discussion

* The growth of environmentalism in the Australian community in the period since 1980 and the response to it by politicians, has led to a burgeoning of environmental protection by government and considerable institutional change, as analysed by Papadakis (1996). While early deregulation was occurring in some policy areas, the ALP was gaining electoral support at federal level from the environmental movement. Rather than being a period of reaction against large body of previously existing regulation and established practice which was seen as outmoded, the environmental protection page was almost blank in the late 70s and early 80s as environmental protection mechanisms were being newly devised.

Thus because of the influence of environmentalism, and because as in the case of OHS, environmental matters were not then seen as central to the pursuit of the economic goals of deregulation, environmental regulation was not directly subject to the effects of the deregulation of the 1980s. Referring to the OECD model of regulatory reform stages, it can be said that the Deregulation Stage is not apparent environmental regulation. However, from the late 70s, the development of environmental regulation has been consistent with the emerging Regulatory Quality Stage of the OECD model (OECD, 1997c). The use of consultation in development of environmental regulation, and development of information disclosure and participative schemes as a means of environmental protection, exemplify the exploration of alternatives to traditional forms of regulation.

* As in the case of OHS, it is not necessarily the case that this the exploration of alternatives to traditional regulation in environmental protection has been based on the same economic concerns as the flight from traditional regulation in other spheres. Prior to the emergence of ESD as the dominant paradigm in the 1990s, protection of the environment and economic development were largely seen as adversarial. (The use of alternatives to traditional regulation prior to 1990 may in part have arisen from a desire to provide opportunities for wider participation in environmental decision making).

* Following the IGAE (1992) and the nation-wide endorsement of ESD, there has been strong emphasis on considering economic instruments and voluntary and self regulation mechanisms in development of new forms of regulation or reworking earlier regulation. This trend has been especially apparent in greenhouse response policy, where economic instruments have been at the forefront of consideration (e.g. DPIE, 1998). While proponents of market-based measures point to their efficiency as solutions to environmental problems, opponents have concerns about their equity effects and question the notion of the being able to purchase rights to pollute (Fowler, 1994). A mix of 'regulatory' and 'non-regulatory mechanisms', including some market-based, is often advocated for environmental protection (e.g Fowler, 1994; Johnson, 1991).

* One issue for future environmental regulation concerns application the precautionary principle, which is embodied in the Intergovernmental Agreement of the Environment (1992) in the following statement:

'Where there are threats of serious or irreversible environmental damage, lack of full

scientific certainty should not be used as a reason for post postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable serious or irreversible damage to the environment and (ii) an assessment of risk-weighted consequences of various options' (IGAE, 1992, Cl 3.5.1).

But difficulties which might occur in bringing the precautionary principle into play are suggested by the following OECD remark:

'An underestimated role for regulatory quality standards is that they explicitly or implicitly reverse the burden of proof for regulation. Traditionally regulators faced few restrictions on the use of discretionary powers, but regulators are increasingly expected to demonstrate that their actions are necessary and justified. Uncertainty and lack of information today work against new regulations rather than for regulation. This supports a critical change in the regulatory state (OECD 1997c:209):

* Like OHS regulation, environmental protection regulation in Australia is now subject to the full spectrum of across-the-board regulatory management activities being pursued, such as regulatory impact analysis and review of existing regulation according to reform principles. (These fall into the OECD's Regulatory Management Stage.). In 1997, in the government's response to the Small Business Deregulation Task Force report (DIST, 1997a), an intention to speed up review, under NCP, of regulation in environmental areas was announced.

* While environmental issues do not presently appear to be as high on the political agenda as formerly in Australia, the institutional changes which

environmentalism has produced will continue to be influential. But a future 'steering not rowing' role for government even in regulation, seems increasingly likely in environmental protection. A recent delineation by the Commonwealth of its role in environmental matters (DPMC, 1997), represents a withdrawal of the Commonwealth from some environmental protection areas.

 

 

8.0  FURTHER DISCUSSION

8.1  Origins of the Regulatory Reform Movement in Australia

8.1.1 Influential Economic & Social Phenomena in the 1970s

The rise of the regulatory reform movement in Australia can be linked in part to certain economic and social phenomena in the 1970s and early 1980s . Some of these are:

* rise of environmentalism and consumerism , from the 1960s

* fall in Australia's GNP relative to other OECD countries 1960-90

* Australian trade problems: weak commodity prices

* rise of unemployment in Australia

* desire to promote economic growth in Australia

* desire to promote competitiveness of Australian industry

* technology changes

* effects of globalisation in its many forms

* influence of trans-national corporations.

* rise of neo-liberal think tanks

8.1.2 Influence of ideas

The regulatory reform movement can also be attributed to influence of particular lines of thought about society, government and economics. Some of these are:

* influence of liberalism and neo-classical school of economics

* competing models of society: community/ market/ bureaucracy

* changing view of nature of government in 1970s

* the perception of government failure and inability to deal with economic problems

* rejection of welfare economics

* redistribution issues implicit in government activity

* public choice theory

* market theory and assumptions about efficacy of market processes to solve social problems

* importance of efficiency and managerialism as a means of achieving its

* ideas derived from strategies used in USA & UK

 

8.2  Some Questions about the Outcomes of Regulatory Reform

Questions about regulatory reform which need to be considered include:

* Is there evidence of regulatory reform contributing to economic growth in Australia? (The evidence is equivocal according to OECD 1996: 64 ).

* Is there evidence that use of economic instruments result in efficiency gains in environmental management? (Adequate empirical evidence is not available

to provide an answer according to OECD, 1997:24)

* How is effectiveness o f regulatory mechanisms being tracked in regulatory reforms and what is the relative importance attached to effectiveness during the reforms?

* Where privatisation of public service provisions occurs, how can community service be provided for?

* Who are the losers and winners in processes of regulatory reform? How can negative impacts of change on some community groups

be counteracted?

 

8.3  A Change of Direction?

Where deregulation has occurred in the Australian economy there has been a tendency for development of new regulation to arise: to maintain competition; to maintain prudential controls; and to ensure community service - a process of re-regulation. . In response to recent international financial crises there has been recent discussion of introducing mechanisms to provide some limitation of international transfer of funds: 'Putting some sand in the gears of the markets' (Caton, 1998).

Is this a sign of growth in scepticism about replacing the 'dead hand of government' with the 'invisible hand of competition'?(Groenewegan 1991). Might such thinking ultimately affect other areas? It is notable that in the area of mine safety in NSW, an area in which the NSW government was on the threshold moving towards more self regulation prior to 1997, there is now a sharp increase in government resources being committed to the area.

 

 

9.0  CONCLUSIONS

While deregulation in Australia has impacted strongly on economic regulation, it has not markedly affect occupational health and safety and environmental protection. This is consistent with deregulation being a 'frontier' stage in the evolution of regulatory reform, the high priority given to economic regulation as an area for reform, and the political sensitivity of the OHS and environmental protection areas.

Nevertheless, OHS and environmental regulation has been influenced by other aspects of regulatory reform In both areas, there is now use of alternatives to traditional regulation, often with a market based or voluntary component.

OHS and environmental regulation has been affected by both the 'regulatory quality' and 'regulatory management' phases of regulatory reform identified in OECD analyses.

While there has been a burgeoning of environmental protection regulation during the decades of regulatory reform, there has been a tendency for this newly emerging field to take the form of 'new style' rather than 'old style' regulation (as characterised by OECD 1997c).

 

 

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