Regulation & Policy Analysis

 

sunsetRegulation of business is an ongoing challenge in shifting winds. Rules are both a phenomenon of civilisation and a red-tape choke on progress. Australia’s COAG (Coalition of Australian Governments) has promised – again – to reduce regulation and red tape, and to lift productivity and prosperity. Australian politicians routinely reinforce their concerns about regulation overload on business but still the regulatory reality grows. At working level, Australia will need to weigh this against stark effects of regulation on investment, initiative and innovation.

Over two decades, Sandra Welsman has developed an integrated body of industry and law based work on ‘laws regulating business’ – that is, the multiple and deep effects of all sorts of regulation on small and larger businesses working to compete globally. We work with industry sectors to contribute to all types of regulation reviews – raising issues with regulation that Governments say they must address. reviews

Nor is ‘national regulation’ – an idealised seamless economy – the panacea answer, although it is a package COAG has tried to grasp. Uniform regulations across Australia, if achievable, will not fix poor regulation structures nor negative impacts of sets of rules, intended or otherwise. Uniform poor regulation will increase costs and spread productivity and innovation losses across the economy.

cloudsNot all impacts of rules reflect policy intentions, and all regulations need to be open to cost scrutiny. Reviews often report ‘unintended consequences’  of legislative changes and the ways rules are implemented. Negative effects and costs include dulling the inventiveness Australian policymakers and communities depend on from entrepreneurs, business developers, employers and researchers.

The Welsman approach to dissecting rules involves ongoing monitoring of key regulation areas, plus tenacious and creative analysis of policy, all forms of regulation, and in particular, how regulators, businesses and groups make use of rules (as many do). This analysis extends the perspectives of businesses including SMEs. It is more critical and questioning than lawyerly reading of legislation and occasional cases (most regulatory law impacts stay well outside the courts), and more hands-on than economists with a macro-focus and reliance on regulators for advice.

Frontiers Insight offers:

  • Incisive Regulation Review – beyond economics to practical impacts of laws and detailed rule and rulemaking on operations, productivity and ongoing business innovation.
  • Dissection of rules – statutes, quasi-legislation, standards, expectations – with regard to policy and practices. Development of evidenced cases for change.
  • Analysis of structures – resourceful review of systems and power in industries; market, technical, policy, regulatory, social, economic dimensions. See regulation reviews and strategies
  • Questioning inquiry at interfaces – scientific-commercial-legal-social – including issues arising in the multiplying technical rules and standards.

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Platform investigations on regulations, regulatory law

Industry submission to the Quarantine & Biosecurity Regulation Review 2008, analysising and discussing economic and scientific tests and issues –

“Resort to ‘science-based’ as a catch-cry, even with efforts to be more science-based, will come into question in years forward.While the WTO has supported the ‘seemingly more neutral and universal criterion of science’, there are difficulties in positioning ‘science’ as the backbone of an assessment system. Most scientists, lawyers and businesspeople are aware that opposing science can be argued by expert witnesses to support non-science decisions … Such difficulties are being increasingly recognised on debates on risk and regulation in many areas. Value-judgments, and economic or political dimensions run alongside and through ‘the science’. How the science is assessed and used will affect confidence.”


Business Regulation – promises, realities, futures. Paper presented to the John Howard’s Decade Conference, ANU Canberra 3.2006 – condenses research by Sandra Welsman back to the 1990s and through ongoing regulation reviews for industries where science is a routine part of regulatory schema. >>

The ‘Promises, Realities’ paper (ssrn) argues that regulatory climate for Australian business had barely improved over 15 years, notwithstanding repeated and ongoing promises by governments. In particular that:

– Regulatory review processes are not functioning as projected to forestall red tape
– Need to extend critical review processes to all forms of rules, even judge-made law
– Science-based standards and technical rules are a new front-line of regulatory build-up
– A major challenge will be to shift regulators back out of the ‘entrepreneurial and innovation space’.


Investigative research and scholarship by Sandra Welsman during 2004 led to the Science: Law Stand-off conference paper, and a series of interdisciplinary explorations and research over 2005-2006.

A Science : Law stand-off. International dimensions, local implications. Research paper delivered to 22nd Law & Society Conference, Griffith University, Dec 2004. Lightly updated for SSRN publication 2009. Extract –

“Arguably, the 20th century ended with a widening divergence of Science and Law – particularly at the professional practice and education levels. If this is an effect, then ‘science’ – it seems many feel – is much of the cause. A latecomer to formal branches of learning, science sees itself imbued with modernity and does not shy from the broadest of claims. …

So, should lawyers, financiers, investors, academics, educators or scientists, be bending with these changing winds? In my analysis, at this stage in Australia and globally, scientists may be able to avoid delving into the Law for a while longer. But the need for lawyers and other agency professionals to ‘know science’ (in all senses) is escalating. This is ominous given the indicators of a clear and present stand-off. True cross-knowledge and insight will be a global competitive edge. Further, the scope of the Science : Law challenge is wider than court process and education – far more of the interface occurs outside the legal action system than within. …”


To Boldly go! Can Bright Students realise their Learning Potential at Universities? refereed paper published in proceedings of the RMIT Partnerships for World Graduates conference Nov 2007. This conference looked at ways of educating graduates for the global workforce, and challenges to be faced in restructuring courses to meet evolving demands of the global economy.  For key points of this paper see >>.

  • Book 1. On Rural Industry Regulation: High Court chews the grass! A story of Australian realities, law and judges – as witnessed in agricultural cases during the first century of our lead court.  S J Welsman
  • Book 2. On Agriculture and Biotechnology: GM crops: science, agriculture and potential legal issues. A Clarke,  J Stanley, A Taji; What Australian Courts might say about ‘damage’ from cross-pollination by a GMO, M Lunney
  • Book 3. On Farming & Environmental Rules: Farmers: what do you own? Are environmental regulations changing the nature of land rights? K Lee ; On Agricultural Supply Chains: Market power, wheat exports, law and cases. HS Chang, SJ Welsman. books

More detailed findings of this research – and ideas for universities on applying findings are relayed in two papers:

Double or nothing! Clever thinking, double-degree frustration and returns to Science. National Uniserve Symposium, Sept 2007, Science Teaching and Learning Research including Threshold Concepts, University of Sydney. Proceedings, Gifted and Talent Forum Presentation. ssrn

  • Science is readily dominated in double-degree dynamics. The conceptual demands and commercial promise of programs such as law, finance or economics can overbear the time-hungry Science courses.
  • Many of these brightest of students are pulled/pushed away from Science after a string of base units; their worldly interests unfuelled by ‘lame labs’, multiple-choice ‘fact exams’ and discipline-bound feedback.
  • With limited efforts at university level to deter discipline silo pressures on double-degree takers, there is opportunity for inventive Science faculties to take a lead in genuinely integrative learning – and in doing so, to open and maintain paths ‘in Science’ for these gifted students.

Double or Nothing! Boosting returns to science from double degrees. Chemistry in Australia, Magazine of the Royal Australian Chemical Institute Inc (paper on invitation) March 2008 issue.


Further dimensions of interfaces of science, law and market ‘push and pull’ have been explored in –

Drugs in sport: What’s the line? Could there be a Western advantage in sports drugs policy? Working paper 2000-2004-2008. Where does a sports drink invented by scientists to lower internal temperature, differ from a ‘drug’ coined by chemists also ‘to win’? At last 2008 saw some debate around technology and ‘unfair advantage’. Australia still backs science as critical to winning.

Regulatory restrictions on introduced plant species. An exploration of ‘species’ issues. 2004

  • A science-law pivot point: Under Native Vegetation Acts, a ‘foreign species’ may be from elsewhere in Australia as well as from overseas. In some circumstances whether an species is ‘foreign’ or not may be a grey area, and where there are grey areas there is room for legal argument (if the issue is important). Whether a new line of a plant is a distinct species might be a point of debate. Biologists disagree on the definition of the term ‘species’, yet species are the fundamental taxonomic units of biological classification, and environmental laws are framed in terms of species. The Ecological Species Concept sees a species as a group of organisms that share a distinct ecological niche.

The AgLaw Papers 2004. Sandra Welsman promulgated 15 novel interdisciplinary research concepts exploring agribusiness, science, law, economics frontlines in the four AgLaw Centre research streams [Agricultural Supply Chains, Agriculture and Biotechnology, Rural Industry Regulation, Farming and Environmental Rules].

Interdisciplinary teams and individuals worked to achieve five papers in three books for a wide readership, particularly farm and agribusiness managers, science and social researchers and agri-industry, government leaders and agencies:

The AgLaw Papers are also listed on AusAid’s Australian Development Gateway website.

‘[High Court chews the grass! ] provides historical and recent case studies of Australian experiences in agricultural policymaking, regulation and judicial responsiveness. The paper explores a range of issues including: · Protectionism and free-trade; · The relationship between the law and agricultural industries and people · The influence of non-legal factors in judicial decision making; · The financial and other impacts of court cases.’ AusAid

High Court Chews the Grass! Agricultural realities, judicial impression and responsive law during the first century of Australia’s lead court. SJ Welsman, 2004-09, a research-discussion paper, is now posted on ssrn. paper


Laws Regulating Business in the 1990s : Facilitation, Control, Overload ?Sandra J Welsman, PhD thesis. Original and inventive exploration and analysis of business-government-social-economic interfaces into 21st C Australia. Tested against policy expectations for innovation, entrepreneurship, Asian-global interaction and rising trade; in context of market and personal behaviours, governance, social and environmental aims, roles of policy, rules and types of lawmakers.

[This thesis] demonstrates significant research across disciplines and across areas of law … significant critical ability at a high level. I was particularly impressed by the analysis and criticism of the ‘Responsive Regulation’ hypothesis … I am not aware of any detailed, well supported study of the effect of legal regulation on Australian business. I hope this will be published.Professor JG 2001

This investigative research and analysis across many disciplines, has informed multiple reports and papers and continues to inspire active and critical investigation of regulatory issues impeding Australia’s productive advance.

see Regulatory reviews and strategies 

 

Parts
1. Framework
– expectations of business, business views on regulation; Society, policy, law-making and changing rules; Parliaments, judges responding to communities; Ascent of subordinate legislation 2. Considering regulation broadly - regulation effects on business; motivating business people; costs and competitiveness in global trade; SMEs as innovative front-line. And wider contexts:a) Innovation, enterprise, entrepreneurs – Adam Smith to scientific frontiers; Regulation at technological forefronts. b) Globalisation, Asia and rulemaking – social, commercial, legal interfaces; trade / culture driven evolution, Japan, China. c) Rules, market failure and social fabric - an element of distrust of business? Social capital concepts and regulatory change. 3. Identification-dissection of key regulatory issue areas for business, then focus on: 4. Environment and planning – as new statutory regulation; international, national and local dimensions. 5. Consumer law and judicial regulation – consumer protection goals, principles; competitive markets – regulation policy and practice; regulators, tribunals and courts as industry participants.6. Changing rule systems – regulation review – commitments, systems, progress; issues with rules; workability, enforcement; conduct outside expectations, unacceptable, intolerable.

 

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