No abstract

Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage “excellence” in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the “good society.” It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the “scientific” strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.

The literature pertinent to regulation presents disparate views of the role of human agency in regulatory compliance. Some authors assume regulators' and regulatees' capacity for agency to be self‐evident; others show that human agency may be constrained and as a consequence tends toward sustaining the legitimacy of their respective organizations rather than achieving the risk reduction goals prescribed by the regulatory regime. Drawing on Margaret Archer's work (among others'), this article explores how the agency of regulatory actors is critical to the regulatory project yet contingent. This contingency is explored through a comparative analysis of the regulatory responses to an industrial disaster and to counterterrorism efforts at seaports and airports in the wake of the 11 September 2001 (“9/11”) terrorist attacks. This analysis found that problem solving in the pursuit of regulatory goals was most effective when there was political support for the authority of the regulators and respect for their expertise and when the risk of concern could be narrowly defined. These conditions could also reap benefits at the worksite level. However, the capacity of regulators to mobilize resources, exert authority, and transform constraints into opportunities in order to reduce risk could be limited. Tight political control, limited knowledge of the environment to be regulated, and a potentially limitless exposure to risk meant that while agency could still be expressed, it was aimed at goals that included shoring up political legitimacy, enhancing personal authority, and allaying public concern.

This article analyzes the regulatory reform and implementation process in Australia following three event clusters: an industrial explosion, recent terrorist attacks, and a corporate collapse. The research employed a characteristic analysis where the compliance challenge on the ground is understood as affected not only by the enforcement efforts of the regulator, but also the reform process and the structure of the industry concerned. In each of the cases studied, preferred reforms could be understood as "metaregulatory" and framed around outcomes, principles, and processes rather than a preoccupation with adherence to prescriptive rules. Metaregulation was seen as the most appropriate regulatory framework to maintain the integrity between regulatory goal, regulatory regime, and compliance behavior. Yet, reform pressures that shaped the causal narrative associated with the particular risk, the emotional work involved in compliance, and success strategies of sites all affected what risks were actually reduced and hence the likelihood of a repeat disaster .