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Regulation has become a permanent feature of the way in which contemporary democratic economies, including Australia, are governed. There are few spheres of economic activity that are not subject to some form of regulatory oversight and control. Daily news programs rarely pass without some mention of a significant regulatory decision, proposed regulatory reform or allegations of some regulatory failure or scandal. For lawyers, dealings with regulators and regulatory regimes have become part of the staple diet of their work. Yet the practice of regulation is far from straightforward. Regulatory policy and practice has evolved considerably from its traditional origins in the form of ‘command and control’, accompanied by the growth of specific terminology and concepts that are likely to be unfamiliar to those other than regulatory technocrats. This subject provides an opportunity for students to develop an understanding of, and critically to evaluate, the basic tools, techniques and decision-making methodologies that are employed in regulatory design and practice. It will be of interest to both private and public sector lawyers who practise in regulated sectors of the economy, enhancing their understanding of how regulators go about the business of regulatory decision-making.
Principal topics include:
- Introduction: What is ‘regulation’ and ‘governance’?; the regulatory agency: institutional features, strengths and shortcomings; the rise of the ‘regulatory state’; regulatory regimes and the role of non-state actors
- Tools, techniques and instruments of regulation: command—traditional legal prohibitions backed by sanctions; competition—market based approaches; communication—information disclosure and publicity-based approaches; consensus (including self-regulation); code architecture and the use of ‘nudge’ techniques
- ‘New governance’ approaches to regulation: choice of Instrument; ‘hybrid’ approaches to regulation; responsive regulation, ‘smart regulation’ and its variants (including meta-regulation); algorithmic regulation, cost-benefit analysis and regulatory impact assessment and ‘better regulation’
- Enforcement and compliance: problems with rules; principles-based regulation; the role of the criminal and civil law; punitive civil sanctions (the Macrory Review); regulatory enforcement styles; national styles of regulation; private enforcement, third party monitoring and certification systems and the role of technological instruments for monitoring and control.
- Appraising Regulation: regulatory accountability; regulatory legitimacy: between democracy and expertise.
Intended learning outcomes
A student who has successfully completed this subject will:
- Acquire a set of general analytical tools and concepts that may be applied to the regulation of any domain of social activity, in any jurisdiction, in seeking to understand how regulatory authorities pursue the social objectives that they are expected to promote
- Have a sophisticated appreciation of the challenges (of both a principled and practical kind) associated with attempts by regulatory authorities in seeking to promote particular social goals, including an appreciate of the kinds of conflicts and tensions which may arise within, or as a product of, the regulatory process
- Have the capacity and skills to critically appraise regulatory design, policy and practice, including the role and limits of the law’s contribution to regulation
- Have an advanced and integrated understanding of general challenges associated with effective and legitimate regulatory governance, including an understanding of so-called principles of ‘better regulation’ and various desiderata considered essential to ‘good’ regulation
- Be able to critically examine, analyse, interpret and assess the effectiveness and legitimacy of a regulatory program, proposal or decision
- Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as tools and instruments of regulation, approaches to regulatory enforcement, the use of regulatory decision-making methodologies such as cost-benefit analysis, regulatory impact analysis, risk-based approaches to regulation, the role of public and private enforcement, the characteristics of various sanctions for violations of regulatory standards, and how to evaluate and design regulatory regimes
- Have the cognitive and technical skills to generate critical and creative ideas relating to the design and evaluation of regulatory regimes, and to critically evaluate proposed solutions to regulatory problems
- Be able to demonstrate autonomy, thoughtful and informed judgment and responsibility as a learner in the field of regulatory policy and practice.
Last updated: 24 March 2020