BEGINS

New thinking needed in deregulation
John Tucker
Lindsay Tanner’s deregulation adviser. Nicholas Gruen, is not only a Spice Girls fan but also a lateral thinker in a field where there has been precious little of this (“Preparing for a red tape revolt”, March 1, p. B2).

Excessive black-letter regulation over the decades has led to calls to relieve the red tape burden and extinguish regulatory “hot spots”. Minister Tanner at the Federal level and Minister Emerson and his colleagues in COAG have embarked on a new deregulation exercise and, with goodwill on all sides and Dr Gruen’s assistance, they should have some success.

Dr Gruen’s themes lead us in new directions. The interesting thing is that some sectors of Australian business, industry and the community are there already.

Dr Gruen’s first theme is that we should focus on the intent of regulation – not what it says but what it is meant to do – to ensure that cars are difficult to steal, for example. Good idea. Standards makers in Australia and internationally already produce performance-based standards, leaving it to manufacturers and other standards users to innovate with specifications to achieve or better the standard.

Dr Gruen’s second theme is that having more and better regulatory impact statements (RISs) and “one-in, one-out” rules is only part of the story. Good point again. The Office of Best Practice Regulation at the Federal level and similar bodies in the States and Territories should not just be “RIS police”. They should have an educative role, including educating public servants (and Ministers) in “lighter touch” forms of regulation, including self-regulation, as an alternative to detailed and debilitating black-letter regulation.

“One-in, one-out” is pointless if it is only a mathematical exercise; it would not necessarily reduce the burden of regulation. It would do so, however, if there was a requirement that the piece of regulation coming in had to be a “light touch” option – either self-regulation or industry codes or standards underpinned by regulation.

Dr Gruen’s third theme is that the regulatory optimum will lie somewhere between being bound by black-letter regulation and abiding by the spirit of the regulation. Fair point again. COAG and Minister Tanner and his team should look at successful “mid spectrum” examples of generalised regulation that refers to standards developed by consensus between stakeholders – business, government and consumers – particularly because consensus-based standards are less likely to lead to later complaints about regulatory burdens.

The Building Code of Australia, administered by the Australian Building Codes Board, is one such example. It embodies a uniform approach to building regulation across Australia. The Productivity Commission said in 2004 “that reform of building regulation has delivered greater certainty and efficiency to the building industry, as well as benefits to the broader community. The Board has successfully reduced many regulatory differences across jurisdictions, especially those based on the core elements of the Code, and established the framework for a performance-based regulatory regime.” Not a bad standard for our deregulators to aim at.

John Tucker is Chief Executive Officer, Standards Australia, the national standards body

ENDS

(Sigh), Nicholas, if you replace “zigazig ha” with “sex” you’ll pretty much be in the ballpark. Sometimes a cigar isn’t about a cigar but pop music is pretty much always about sex.

There is some stuff in the reg review material publicly available that allows for an exemption to the RIS requirements for ‘permissive’ changes such as this - now - though I believe FORS were correct in their assertion at the time - perhaps you or another brave soul working in the area - might fill us in on the detail. I’ve had a quick look at the Best Practice Regulation Handbook and I can’t find it - I think it may be in some more detailed documentation but I don’t have time to try to find it now. (Not that I’m condoning the FORS comment - they seemed pretty low voltage at the time and it seemed like a bit of an excuse).

But my understanding is that this remains a live issue in the very area of the original example. I understand from conversations within the Dept of Transport in around 2006 that RISs were being required for substantial new work on ADRs which was largely permissive - rewriting many of them according to UN specs which were a translation of a lot of existing rules into performance specifications. (ADR 25 after has permitted purely electronic locking since at least the last review - previously it specified that the locks required at least four mechanical barrels). But because there was substantial rewriting going on, it was generally understood that an RIS was required.

More seriously though, one question that it reraised in my mind was the validitty of the RIS excuse that the road safety regulators gave you for their failure to get rid off the ADR 61. I don’t know to what extent you had time to explore it in the public hearings, but having worked in the ORR at around this time, I find it hard to believe that the extent of analysis (and associated costs of compiling a RIS) that would have been demanded for such a change would have been significant. Of course, in the new environment post the Banks Taskforce (on which I also worked), the need for proportionality etc is built more explicity into the system. That said, it might be an interesting test of the system to explore exactly how, under the new arrangements, such as proposal, if submitted to the OPBR, would be handled today.

This is not to be starry eyed about sometimes dopey judges and the slippery concept of ratio decidendi and so on; it is simply to point out that law that evolves in a kind of organic way is often preferable to the hard edged geometric written law. A good example is the huge weight of our migration law, which has been written so as to allow no scope for judicial discretion. The result was that the minister ended up getting flooded w lots of cases which the written law did not fit, even though the ideas behind it and logic and humanity might dictate otherwise.

This is partly an effect of the way laws are written nowadays. Compare the slim Sale of Goods Act w the rotund Trade Practices Act. The issue is a doomed destire for precision, which tends to end up with a lot of babies going out with the bathwater. (My cliche count is getting a bit high - sorry)

There are some workarounds. For example, the trend to purposive rather than literal interpretation of statutes helps, as does the insertion of objects clauses in legislation - or it would if most objects clauses did not appear to have been written by blood crazed orcs.

Sometimes you see some good ideas. The Building Code of Australia is “performance based”. It provides objectives and performance requirements (what a window should do) and then it provided “deemed to satisfy” specifications, but if they dont work in a particular case it expressly allows for “alternative solutions” which may be devised to meet the particular case. So if you did that w car locks, the performance requirement would be (say) “make the car secure against theft except by the owner”; the “deemed to satisfy” would be locks/keys/number of tumblers etc, but an “alternative solution” might be keyless and depend on (say) fingerprint recognition or some other technology.

SOrry, this went on a bit longer than I expected. I would have liked to put in a link to the BCA but I don’t know how. See my pathetic request about blogs somewhere else in this thing.

So regulation should be expressly purposive; it should have clear (and intelligent) objectives; it should allow for development.