The idiocies of regulation edition #473

One of the things I have against academics is that they are supposed to be smart. They are smart.  Yet get enough of them together and you get this – from Robin Hanson. Words fail me.

Once upon a time some researchers gave people diseases without their consent or knowledge. Other researchers let volunteers think that they were torturing folks. This so horrified many that they created a system of regulation where any academic “experiments” must have prior approval by an Institutional Review Board (IRB). And that system has expanded to the point of requiring prior approval for any interaction between researchers and non-researchers intended to be the basis of an academic publication.

That is, researchers seeking publication can’t talk to people (e.g., survey), or buy or sell something with them, or even pay them to do trivial tasks like correcting spelling mistakes, without first writing out a detailed plan months in advance and getting that approved by a committee of other academics.

One common rule is “informed consent” – people must be informed in great detail of the consequences of their interacting with the researchers – they must be told much more than ordinary people must tell when they deal with each other. A second common rule is that people must benefit in some other way than money – they must gain some sort of intellectual insight or learning. A third common rule is that no record can be kept of people’s identity unless a really strong reason is offered to the contrary.

IRBs seem a good example of concern signaling leading to over-reaction and over-regulation. It might make sense to have extra regulations on certain kinds of interactions, such as giving people diseases on purpose or having them torture others. But it makes little sense to have extra regulation on researchers just because they are researchers. That mainly gets in the way of innovation, of which we already have too little.

Notice that researchers continue to be allowed to publish their results, and give lectures and media interviews, without such prior approval. Yet couldn’t ordinary people be harmed by reading articles that induce them to have unethical or unpleasant beliefs?  Of course they could – it is only an accident of history that regulation does not also require prior ethical review of publications.

I learned today that you are not allowed to handle food – even at your school fete – without a certificate of food handling.  My daughter told me – and has the requisite certificate. The certificate costs about $85 to get and takes about three hours.  It could be an OK rule I guess – justified by cost/benefit analysis.  But (assuming this is state regulation rather than school regulation) I’d like to see the analysis – and I must confess to being irritated by it.  Back in the day  . . .  we managed without such certificates.

And it’s hard to believe you couldn’t do it a lot more simply with a course on the net for next to nothing.

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g
g
10 years ago

Informed consent can also scare people into responding differently by assuring them that things that could go wrong but the researchers will try to prevent: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430482

conrad
conrad
10 years ago

I think this is in fact mainly a legal issue — this is why we have courses that tell us not to grope colleagues otherwise it is harassment, or if you punch a colleague in the face, this is assault. Fortunately where I work we now get to do these courses online.

Basically, I think the problem is that the universities (and I presume private companies also) are legally responsible for your actions when you are at work. The reason they have these crazy courses is so that if you do something silly, it allows them not to take legal responsibility for the outcome of your action. Now, not being a lawyer, I’m not sure whether this really is true or not, but I’m sure they are under the belief that it is much harder to transfer responsibility when someone says “how was I supposed to know I was supposed to do that that” than when they can say “we gave you a training workshop that was compulsory where we taught you this”. As for research, they want to protect against not only reasonable but frivolous claims. They do this by saying “we complied entirely with a one-size-fits-all document authorized by the NH&MRC and therefore have done nothing wrong”. Curiously the government itself doesn’t do this with census data, where you legally have to write something in the document they give you.

Robert Merkel
10 years ago

Nick, there was a strange one in the magazine section of the Weekend Oz on Saturday.

Apparently, to export wine from Australia, you need the approval of some government-appointed body. OK, safety checks – fair enough. But this body also taste-tests the wine and won’t and apparently knocks back wines they think are “faulty”.

Some of the “faulty” wines include ones that been very highly rated by media and wine show judges.

But, frankly, I don’t see why Australian companies shouldn’t be able to export wine that tastes like battery acid, as long as it a) doesn’t actually contain battery acid, and b) they can find a buyer.

Incurious and Unread (aka Dave)
Incurious and Unread (aka Dave)
10 years ago

Robert @3,

Well, it’s pretty clear in principle why the restrictions are there. Battery acid exports would damage the reputations of other wine exporters by association.

European wines have “Appelation Controllee” regulations to protect quality and reputation. As far as I know, there is nothing similar to this in Australia.

I’m not saying that the regulations you refer to are well-designed, but I can see what they are trying to achieve.

wizofaus
wizofaus
10 years ago

Why should wine be a special case? It would seem rather absurd for government bodies to attempt to enforce quality control over every type of good we export just to ensure that Australian products maintain a good reputation.
The only justification I could see for “taste testing” if it were the only accurate way to determining that products weren’t being mislabeled, which would apply just as well to those meant for domestic consumption.

wizofaus
wizofaus
10 years ago

In fact, I’m far more worried about examples like this giving regulation in general a bad name, rather than exports of low quality plonk giving Australian wine a poor overall reputation.

rog
rog
10 years ago

Appelation Controllee has nothing to do with quality and everything to do with marketing.

Incurious and Unread (aka Dave)
Incurious and Unread (aka Dave)
10 years ago

wizofaus,

I agree that the government should not be doing this. It should be an industry scheme.

I don’t know if wine is a special case. Are there no other goods whose exports are regulated?

I don’t think regulation needs to be given a bad name.

Fyodor
10 years ago

Appelation Controllee has nothing to do with quality and everything to do with marketing.

This is closest to the mark. The AOC system in France is a form of protectionism, not just internationally but domestically. You can’t sell a wine under one of burgundy AOCs unless it conforms with the geographic standard, i.e. comes from the particular region – terroir – afforded that appellation.

By enforcing such standards on product sold under a particular regional “brand” it protects the value of that brand (i.e. protects the incumbent producers from that region), not necessarily the quality of the product.

fxh
fxh
10 years ago

I learned today that you are not allowed to handle food – even at your school fete – without a certificate of food handling. My daughter told me – and has the requisite certificate. The certificate costs about $85 to get and takes about three hours. It could be an OK rule I guess – justified by cost/benefit analysis. But (assuming this is state regulation rather than school regulation) I’d like to see the analysis – and I must confess to being irritated by it. Back in the day . . . we managed without such certificates.

And it’s hard to believe you couldn’t do it a lot more simply with a course on the net for next to nothing.

But think of all the TAFE teachers who would be out of work.

OTOH having been on the other end of having to insist on certain training, food handling, Police Checks for Child Handling (or even being near children), fire safety, lifting goods. allergies, etc – let me say that those who object the most strenuously to the training are usually the very same people who will sue like an American attorney on red cordial should anything go wrong for them or their offspring.

Jacques Chester
Jacques Chester
10 years ago

Ah yes, the rules about food handling. I remember these well.

Back when I was the president of a modestly active liberal club, we used to run monthly social functions involving computer games (don’t laugh, it raked it a lot of cash). At the start we looked at selling sausages-on-bread for $1 a pop, maybe some beer on the side too.

Well between the Health Department and the Liquor Licensing Commission we worked out it was pointless to sell these items. So in order to ensure food safety and the responsible consumption of alcohol, we gave away food and booze free to members of the club.

As it turned out, this was a useful marketing feature. It was pretty easy to sell an event with free food and piss, and our cashflow was positive because we were covered by the NTU’s-then-CDU’s insurance, used about $1.50 of their electricity and the beer was occasionally provisioned by ringing local CLP politicians and asking nicely for material support for the cause of liberalism.

Chris Lloyd
Chris Lloyd
10 years ago

Nick, The ethics rules are imposed by Canberra – as a prerequisite for getting any funding. It is not the academics. As a matter of fact, I am the chair of the local Human ethics Advisory group in my faculty/school. There is not a single project requiring approval that any reasonable person would be able to see any ethical issues. Most of them are surveys of business leaders on their management style and experiences.

I once suggested to a HE committee that there should not be any research ethics approval process at all. None. Blank stares not surprisingly.

My rationale was that there is no teaching ethics approval required. It is presently not the case that, at the beginning of each term, I have to apply for ethics approval of the course I am about to teach, promising for instance not to sell grades for sex, insult Muslims or grope the prettiest students. On the contrary, it is assumed that I am a reasonable person, and if I break the rules of reasonable behavior I will get sanctioned or sacked. The rules of reasonable behavior for academics is somewhere on a website, but I have never checked them because we all know what is reasonable. The system works. 999/1000 times there is no problem. When some Professor in the grip of MLC does something silly, he ends up in big trouble. Because there is no teaching ethics approval required each term, I am not convinced by Ken’s comment that legal liability necessitates these schemes.

Research ethics could be the same as teaching. A long list of principles could be circulated. If you broke them you would come in front of a committee. If you had form, or if it was serious, you would get a serious sanction.

conrad
conrad
10 years ago

“On the contrary, it is assumed that I am a reasonable person, and if I break the rules of reasonable behavior I will get sanctioned or sacked.”

I seem to think that you have probably forgotten the equal opportunity and bullying workshops that I imagine you would have been obliged to do.

Nabakov
Nabakov
10 years ago

“let me say that those who object the most strenuously to the training are usually the very same people who will sue like an American attorney on red cordial should anything go wrong for them or their offspring.”

Yes, reminds me of the line that reason nanny states grow is because so many grownups behave like children.

So I reckon no regulation for sausage sizzles, just a massive serve of small print disclaimers/EULAs prominently displayed.

David Walker
David Walker(@d-w-griffiths)
10 years ago

Trivia point: the food handling laws are responsible for the death of the Saturday Morning school cake stalls which used to feature at my local shopping strip.

Steven Munchenberg, now head of the Australian Bankers Association but previously at the Business Council, was the first to point the cake stall example out to me. He used to cite three reasons for this sort of thing: risk aversion; the low cost of regulation; and the need to tinker when the first round of regulation doesn’t work. I would add a fourth: the difficulty of foreseeing and explaining all the unintended consequences that a regulation will cause. (Note: none of this is an argument against regulation, rather, it’s an argument against ill-considered, low-payoff regulation.)

The cure for this is for society to realise that regulations that don’t have a sizeable payoff stand a good chance of doing long-term damage. We need a higher hurdle for regulation. This will eventually happen. More and more people will see enough perverse outcomes so that eventually the law of unintended consequences becomes widely understood. Instead of nodding approvingly at some penny-ante administrative decree, people will laugh derisively.

My guess is that it will take decades for this to happen. But we should do what we can to shorten that lag. It took a quarter-century to entrench support for sensible fiscal policy in Australia, but the payoff is now clear, if you look at a nation such as the US or Italy.

observa
observa
10 years ago

Hmmmm…..
http://www.cis.org.au/publications/issue-analysis/article/1621-towards-a-red-tape-trading-scheme-treating-excessive-bureaucracy-as-just-another-kind-of-pollution
In private enterprise you just have to take all the regulation with a grain of salt and steer a reasonable course and pay your insurance premiums naturally. SMEs couldn’t possibly comply with letter of the law regulation and stay afloat, whereas Big Biz usually has the wherewithal to do all the paperwork.

Take construction and a couple of obvious examples. Law says noone stands above 2M without a scaffold or restraint. The cottage building industry uses subbies and largely ignores it, whilst commercial wears it.(remember those BER costs?) The electrical unions have forced commercial to have every electrical lead and equipment tested and tagged every 3 months. Buy a new tool or lead which must meet appropriate AS and no matter that will need test and tag to come onsite. Strictly speaking every cottage building site will need an OHS officer responsible if a fall or electrocution occurs but there won’t be one among all the subbies and they’ll go looking for the principal builder. HIA estimate full regulatory compliance a la commercial would add around $14k to the cost of an average home if rigidly enforced. We have the world’s dearest housing now.

Here’s another example-
http://www.news.com.au/breaking-news/oil-companies-to-foot-inspection-bill/story-e6frfku0-1226025685869
where you can see exactly what will happen. Big Biz is paying so the PS office jocks, who will know sweet FA about the real risks of drilling, will want the maxm number of inspections they possibly can, to get out of the office and build their empire, seeing as it’s user pays. Nothing surer. Now whilst oil and gas drilling might well be able to pay, it’s this creeping cost burden on our industry that drives more and more offshoring. You guys are just getting a taste of that with a globalised research market, where the well meaning office jocks are tying one hand behind your back. Private enterprise sees it all the time, particularly if its in a global market, but to the extent that non-traded sectors have their costs driven skyward, that has flow-on effects to the traded sector too. Luckily we have lots of expensive dirt to continue with this self indulgence, although our ‘big bad polluters’ are about to be wedged offshore even more with carbon taxing.

stephen
stephen
10 years ago

the wine discussion (@merkel, incurious, wizofaus) is interesting as a good example of a regulation that was justified once, but no longer.

To explain: wine is actually not a special case. There are export inspection regimes for a range of agricultural products – meat inspection being a good example – because they are sold in export markets as “australian product” and one or two crooked operators can make a quick profit while destroying the market for everyone else. The kangaroo substitution scandal on meat was a case in point.

When our wine industry expanded into a significant exporter from around the 1970s, Australian wine was similarly ‘generic’. There was little understanding in other countries of differences between Penfolds Grange and Chateau Pee D’emu. The reputation of Australian winemakers overall, and the export market, would have suffered if wines tasting like battery acid had been exported. Today this justification does not hold, the market is sufficiently well informed to make its own judgements.

However, due to the apparently universal law that states that all regulation must persist well beyond its usefulness, the testing regime remains in place.

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derrida derider
derrida derider
10 years ago

OTOH, food poisoning is no fun at all, is very common from school tuckshops and the like and is easily avoided with a little care and knowledge. It’s amazing the number of people who don’t think washing hands before handling food that others will eat matters. And consumers can’t tell just by looking.

Maybe regulation seems overly cumbersome for your sausage stall, but if you don’t have it then some stall is going to poison its patrons by the score sooner rather than later.

PS What’s wrong with Chateau Pee D’Emu? After all, it’s cheaper than battery acid (though probably more prone to cause sulphonation).

derrida derider
derrida derider
10 years ago

And observa, you do know I presume that about one construction worker a day still dies in Australia don’t you? And I worked in the construction game in the 70s, before the unions succeeded in getting those burdensome regs passed by friendly Labor governments, and the death rate then was far, far higher. Looking back, my hair still curls at some of the work practices. It’s one reason I refuse to join in the curretnly fashionable demonisation of building unions.

Of course, the root cause of industrial deaths is inadequate worker’s compensation – if employers had to pay the full cost of those deaths then they’d be enforcing those regs themselves without the need for laws. But I doubt that observa would like what that would do to labour on-costs ….

Patrick
Patrick
10 years ago

about one construction worker a day still dies in Australia don’t you?

What,from old age?? I live in Victoria, which presumably accounts for at least 10% of Australia’s construction workforce. I have a few mates in construction and if there is a death on site I more often than not hear about it because they get the rest of the day off.

And I hear about it pretty rarely.

And with a quick google, I come up with rabidly right-wing anti-union sites giving figures like ’50 a year’, (even unions work more than 50 days a year!)..further clicking through links (like the third on the google search page) suggests that there are not even one workplace fatality a day full stop in Australia.

Surely you knew that was crap when you wrote it?? Seriously one a day??

John Quiggin
John Quiggin
10 years ago

How are academics to blame for this? The Tuskegee experiment was undertaken by the US Public Health Service, and the rules were drawn up in response by bureaucrats and lawyers. It’s like blaming tuckshop staff for health regulations.

Ken Parish
Ken Parish
10 years ago

The confusion is probably due to the fact that, in Australia at least, the ethical clearance rules for academic research ARE predominantly a product of academics themselves rather than lawyers and government bureaucrats. Human research is governed by ethical clearance rules promulgated by each university but based closely on the NHMRC’s National Statement on Ethical Conduct in Human Research, a joint publication of the National Health and Medical Research Council, Australian Research Council and Australian Vice-Chancellors’ Committee. To the best of my knowledge it is not enshrined in legislation. Like the US situation discussed by Hanson, rules designed for very dangerous medical experimentation situations have been imposed in a heavy-handed manner on social science survey research involving talking to people, often on very inoffensive subjects, in such a way that any form of such research is absurdly enmeshed in largely unnecessary bureaucratic red tape. The NHMRC document draws a distinction between higher risk and “low risk” and “negligible risk” research such that some elements of the approval process (e.g. the detail of disclosure required to research participants) are marginally less onerous for the latter categories, but IMO it remains unnecessarily bureaucratic and intrusive in most areas of humanities/social science research.

Ken Parish
Admin
Ken Parish(@ken-parish)
10 years ago

Nicholas

I’m not fully au fait with the rules and their underpinning, but I don’t think there would be any regulatory prohibition as such on adopting a ‘negative licensing’ approach. That said, the combined imprimatur of NHMRC, ARC and the V-Cs’ Committee is rather heavy duty, so it would be a brave sole university that departed from its prescriptive model. Researchers from that university would probably not qualify for ARC grants, and it’s likely that the AUQA audit process (which does have regulatory underpinning at least to the extent of being significantly determinative of ongoing university general funding) has compliance with these ethical clearance requirements as formal audit criteria.

conrad
conrad
10 years ago

“some activism pointing out how the Govt could lower costs by taking a more light handed approach to this stuff”

I don’t think the government would care at all about this since it is the universities that pay the cost, not the government.

“this was to be interviewed about gov 2 for Christ’s sake”

This is typical — you need layers of permission and warnings for everything (let alone interviewing people!). We have enforced warning statements like: “If you are accessing this web page from another country then be aware that the laws of your country may forbid you to…..”, and when you finally get through all the crap it will turn out that you are answering a survey on something like the preferences people have for different types of pets based on their household situation.

john walker
john walker
10 years ago

“Institutions will try to preserve the problem to which they are the solution.”

—Clay Shirky

john walker
john walker
10 years ago

Nicholas ….. sorry , but personally, I would say its more of a cliche than glib.

Patrick
Patrick
10 years ago

It is actually fairly profound, because it highlights a key driver of regulatory and bureacratic growth!

john walker
john walker
10 years ago

The ethics system is needed, no question . The ethics system (as it affects the humanities )differs from the law in that there is not enough in the way of clear separations of powers , not enough openness, a lack of ‘statute books & case law’ and not enough equivalents to the rules about things like ‘admissible’- it can stray into impossible questions of intention – for example: ‘can you guarantee that by writing about two authors you might not create unintended comparisons between those two authors that might be harmful to one or the other authors standing as an ‘author’?’
The problem is actually to much authority and not enough rule of law.