1. Colloquium on Regulation, Griffith Law School Renewing Regulation Richard Johnstone KCELJAG, SLRC and Griffith Law School, National Research Centre for OHS Regulation, Australian National University Department of Ageing, Work and Health, The University of Sydney

2. Colloquium on Regulation, Griffith Law School Renewing Regulation:  Conceptions of regulation have broadened oMost people assume regulation to be confined to command and control (C&C) – defined as the deliberate attempt by the state to influence socially valuable behaviour which may have adverse effects by establishing, monitoring and enforcing legal rules.  But:  Over past decades increasing recognition of the limits of C&C: in particular limited effectiveness in achieving its goals – largely because the social systems sought to be regulated have become too complex and diverse to be managed by a direct ‘top down approach’ Eg systems theory: various ‘systems’ (eg law, politics, economy) are separate from each other and operate (at least partially) autonomously from each other, with different logics, workings and languages; and can only influence each other indirectly through maximising ‘structural coupling’ (ie systems are normatively closed but cognitively open) – a different vision of regulation, and the use of law.

3. Colloquium on Regulation, Griffith Law School  Empirically, the state does not only use C&C to regulate: eg often uses (i) economic instruments (taxes; subsidies; tradeable rights: eg ETS; altering the rules of liability: eg to strict liability on producer of a harm - if is the person best able to weigh the costs and benefits of the activity); (ii) information tools; and (iii) consensus/self-regulatory techniques to influence behaviour.  Broader conception of regulation as all state-centred forms of social control.  Empirically, state is not the only regulator, and regulation need not be ‘intentional’, and need not be ‘vertical’ Eg corporations, NGOs, trade unions, trade associations, markets etc regulate. Eg: South African township taxis; FIFA; fair trade coffee etc  Even broader conception of regulation as all forms of social control, whether intentional or not, and whether imposed by the state or other social or economic institutions (often in partnerships or networks)

4. Colloquium on Regulation, Griffith Law School Interdisciplinary  Law  Economics  Sociology  Social theory  Anthropology  Psychology  Philosophy  Political science  History  Educational theory  Criminology  Industrial relations etc  A wide range of analytical frames, and can be tensions and areas of divergence, as well as some common ground, between the disciplines

5. Colloquium on Regulation, Griffith Law School Variety of issues and problems to be researched  Reducing risk: tempering the harmful effects of markets – environment, health and safety at work, road safety, consumer protection – product safety, consumer credit, animal protection, over consumption etc  Creation of markets – emissions trading scheme, vouchers etc  Provision of ‘public services’ – the ‘new regulatory state’  Reshape or bolster markets – consumer credit, labour regulation  Ensure markets operate efficiently and/or fairly – competition regulation, equal opportunity regulation etc  Fair and efficient operation of the professions  Etc  Issues of great social and economic importance

6. Colloquium on Regulation, Griffith Law School Variety of approaches  Analytical oWhere does regulation come from (history, political science: pluralism etc, economics, political economy etc)? oMapping: What regulatory nodes?; What tools?; How enforced? How accountable? Why legitimate? Interface with other regulatory regimes in the regulatory space etc oMeta-studies/reviews oCritical: from an ‘external perspective’  Empirical oimplementation and effectiveness studies oPositivist: surveys, statistics etc oInterpretive ( eg symbolic interactionism) – interviews, participant observation, documentary analysis (self-documenting communities)

7. Colloquium on Regulation, Griffith Law School  Foucault’s approach to power/knowledge enables empirical analyses of approaches to governance – using the concepts of strategies (the formulae of government), technologies (local and multiple forms of activating and managing a population) and programs oEach formulation of an art of governing embodies an answer to series of questions:  Who or what is to be governed?  Why should they be governed?  How should they be governed?  To what ends should they be governed? oRecognises that a whole variety of authorities govern in different sites, in relation to different objectives: leading to a second set of questions:  Who governs what?  According to what logics?  With what techniques?  To what ends?

8. Colloquium on Regulation, Griffith Law School  Theoretical  Middle-level theorising: inductive theorising from ‘thick’ descriptive understandings of, for example, how a regulatory regime works (and from other empirical studies – see each study as a distinct ‘experiment’) by ‘recursive cycling’ among the data, emergent theory and the developing literature to develop theoretical constructs, models, hypotheses, paradigms and propositions that express, at a medium level of abstraction, the dynamics of a regulatory regime, how it operates, why it is accepted as legitimate etc  Political economy: link with political and economic forces – studies should do more than give detailed explanations of regulatory regimes – should locate them in their specific historical and social conditions and the structural forces underpinning them  Can link with – test, apply or develop - high level theory

9. Colloquium on Regulation, Griffith Law School  Normative  Using economic models  ‘Australian toolkit’ approach – ‘technocractric and instrumentalist’ o‘Smart regulation’: methodological mix of empirical case study observation (‘empirical testing grounds’), broad theoretical precepts (eg ‘responsive regulation, reflexive regulation, legal pluralism/decentred regulation etc) and policy pragmatism (propose synergetic combinations of a broad range of instruments and institutions, prefer less interventionist approaches, empower surrogate regulators, maximise opportunities for win-win etc)  Construct a series of normative prescriptions indicating the conditions under which particular regulatory tools are likely to achieve behavioural change most effectively and efficiently  Make valuable policy contributions oMust evaluate oMust consider broader questions of legitimacy: adherence to key principles and values eg rule of law, role of law, and other constraints on normative regulatory approaches

10. Colloquium on Regulation, Griffith Law School Conclusion  Great variety in approaches to regulating and to researching regulation: increasingly broad understandings of what regulation is; and potentially diverse range of disciplinary frameworks and theoretical models used for analytical and normative studies.  Important to be aware of range of scholarship and strengths and weaknesses of various schools of thought.  Constant need for exploratory and replicatory empirical studies.  Need for more theorising – middle-range (including meta- studies) and links with higher level theory.  Need to evaluate implementation and effectiveness of existing and new policy approaches.