Regulating human behaviour through legislation is challenging at the best of times. The complex and, at times, competing web of objectives and values of individuals and the community as a whole can be difficult to articulate, let alone regulate. The challenges in getting the regulatory mix right in disability support services have been usefully illustrated by Hough (2021) in his examination of the design choices underpinning Australia's National Disability Insurance Scheme (NDIS). The article provides particularly useful observations linking the component parts of the NDIS design to the broader literature on regulation, particularly leading thinkers on regulation such as Ayres and Braithwaite (1992), Baldwin et al. (2012), Black (2002, 2011 and Sparrow (2020).In his concluding remarks, Hough (2021) has invited further exploration of the interaction between the NDIS and other regulatory systems, notably Work Health and Safety schemes. Doing so may help to assess an observation made recently at the Royal Commission (19 December 2019) that worker safety may be prioritised over the quality of life of people with challenging behaviours by using restrictive practices as a form of Work Health and Safety risk control (National Disability Services, 2019). This commentary responds to Hough's invitation and compares the design and implementation of the NDIS and Work Health and Safety laws. It highlights a putative tension between accommodating both worker rights and the rights of people with a disability to live an "ordinary life" under the separate regulatory schemes. The commentary concludes by identifying directions that may help reconcile that apparent tension to recognise human rights for all.
Shared featuresMany factors identified by Hough (2021) on the development of the NDIS are reminiscent of those that led to change in Work Health and Safety law. Two factors in particular account for much of the change to Work Health and Safety in the past 50 years.