Ineffective Regulation

Abstract

The thrust of this book so far, and of the previous two chapters in particular, has been about how regulation works. Braithwaite’s negative evaluation of the predominant style of regulation in Australia — ‘going though the motions’ — is a sharp reminder that regulation may not work. An extreme example of the ritualistic Australian style is provided by the asbestos mine studied by Gunningham (1987) and discussed in Chapter 4. The reasons for ineffectiveness, like the means used to achieve compliance, are very varied. We should be in no doubt, however, that success in achieving compliance or even ascendancy does not necessarily result in effectiveness, though in the latter case this is certainly a likely result. If the requirements of compliance are set at very modest levels they may easily be achieved, but regulatees will still be able to do more or less as they please. If the regulator is ascendant it will be able to influence regulatees substantially, not least because they accept regulatory objectives. Questions still arise, however, over whether those objectives are realistic. As Yeager (1995) points out, the 1972 Clean Water Act in the US explicitly required the elimination of all industrial water-pollution by 1985 (p. 257). Implementation was to be achieved by the Environmental Protection Agency, which was large and had substantial powers and public support.