Dr Fiona Haines
Department of Criminology, University of Melbourne
Date: 12 December 2000
Time: 1:00pm - 2:30pm
Venue: CARR Seminar Room, A347
Writing on regulation and compliance often assumes a singular goal - conformance of the regulated with particular rules or standards of conduct. Exhortations on designing "good regulation" envisage regulatory frameworks with the most potential to engender compliance. In contrast this paper explores regulation from the perspective of the regulated, in particular middle management, namely a hospital engineer. From the engineer's perspective "compliance" involves not just one goal, but many.
Standards pertaining to health and safety, dangerous goods, fire safety, building standards, infection control, environmental standards as well as those pertaining to anti-competitive conduct form but a few of the diverse regulatory demands such a manager. For this manager, juridification as the proliferation of regulations, standards and codes of practice is an everyday reality. Further, methods of relieving the proliferation of rules for the regulator - namely the shift to performance measures and "general rules" - create a further layer of juridification in the form of and accreditation regimes and auditing schedules. How is this proliferation to be understood and what are possible sources of relief?
For the engineer, trusting his professionalism appears important whilst for the hospital relief from the inexorable demands of budgeting models tied to throughput and other government techniques to increase their "competitiveness" would enable greater levels of support for middle management to achieve their own goals of compliance. Yet, neither is viable - trusting professionalism lacks public credibility and government draws on notions of the market as the source of fulfilling both demands of the "consumer" as well as fiscal responsibility and administrative efficiency.
The paper argues, drawing on the work of Teubner and Habermas, that it is the tension between fiscal and legitimacy demands that drive juridification. Government attempts to resolve this tension most often rely on the "market" as the legitimating source for regulation. Performance standards, cost neutrality, and regulatory efficiency processes (evidenced through regulatory impact statement processes) each exemplify attempts to "simplify" and "improve" regulation by resorting to market models and competition as legitimating themes. Yet legitimacy demands remain strong, such "market" measures thus being supported, in Australia at least, the growing use of individual criminal liability and administrative penalties. For government, regulatory techniques thus form the basis of resolving this tension, yet techniques are not capable of resolving such tensions, particularly when techniques derive legitimacy from their market or administrative integrity. Rather we would argue, with Habermas, that robust debate and development of notions of public good must drive regulation, not a narrowing of focus or a problem orientation that presupposes a technical solution. For this to be successful, however, political leadership is imperative. Political decisions about the "possible" cannot be delegated to the market or administrative systems without creating juridification and with it necessary non-compliance.