Hostname: page-component-7c8c6479df-94d59 Total loading time: 0 Render date: 2024-03-28T05:53:29.025Z Has data issue: false hasContentIssue false

Regulatory Failures and Regulatory Solutions: A Characteristic Analysis of the Aftermath of Disaster

Published online by Cambridge University Press:  27 December 2018

Abstract

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.

Type
Articles
Copyright
Copyright © American Bar Foundation, 2009 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Australian Safety and Compensation Council. 2002. Control of Major Hazard Facilities—National Standard [NOHSC:1014(2002)] and National Code of Practice [NOHSC:2016(1006)]. http://www.ascc.gov.au/NR/rdonlyres/C4246822‐C5C6‐4AEF‐9E09‐C8F6D1874413/0/MajorHazardFacilities_2ed_2002.pdf (accessed August 15, 2008).Google Scholar
Australian National Audit Office. 2002. Aviation Security in Australia: Department of Transport and Regional Affairs Services. http://www.ifssa.net/security/australia/pdf/AviationSecurity.pdf (accessed August 15, 2008).Google Scholar
Ayres, Ian, and Braithwaite, John. 1992. Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University Press.Google Scholar
Beaton‐Wells, Caron. 2008. The Politics of Cartel Criminalisation: A Pessimistic View from Australia. European Competition Law Review 29 (3): 185–95.Google Scholar
Beck, Ulrich. 1992. Risk Society: Towards a New Modernity. London: Sage.Google Scholar
Black, Julia. 1997a. Rules and Regulators. Oxford: Clarendon Press.Google Scholar
Black, Julia. 1997b. New Institutionalism and Naturalism in Socio‐Legal Analysis: Institutionalist Approaches to Regulatory Decisionmaking. Law & Policy 19 (1): 5193.Google Scholar
Black, Julia. 2002. Critical Reflections on Regulation. Australian Journal of Legal Philosophy 27:135.Google Scholar
Blumer, Herbert. 1971. Social Problems as Collective Behaviour. Social Problems 18 (3): 298306.Google Scholar
Boin, Arjen, and T'Hart, Paul. 2003. Public Leadership in Times of Crisis: Mission Impossible? Public Administration Review 63 (5): 544–53.Google Scholar
Braithwaite, John. 2003. Meta Risk Management and Responsive Regulation for Tax System Integrity. Law & Policy 25 (1): 116.Google Scholar
Commonwealth of Australia. 2003a. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, September 4. http://www.aph.gov.au/House/committee/jpaa/aviation_security/4sept03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2003b. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, September 5. http://www.aph.gov.au/House/committee/jpaa/aviation_security/5sept03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2003c. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, October 2. http://www.aph.gov.au/House/committee/jpaa/aviation_security/2oct03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2003d. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, October 21. http://www.aph.gov.au/House/committee/jpaa/aviation_security/21oct03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2003e. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, November 12. http://www.aph.gov.au/House/committee/jpaa/aviation_security/12Nov03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2003f. Public Hearings into the Review of Aviation Security in Australia. Official Committee Hansard, November 24. http://www.aph.gov.au/House/committee/jpaa/aviation_security/24Nov03.pdf (accessed August 25, 2008).Google Scholar
Commonwealth of Australia. 2008. Office of Transport Security Strategic Plan 2007–2010. [Department of Infrastructure, Transport, Regional Development and Local Government]. http://www.infrastructure.gov.au/transport/security/pdf/OTS_Strategic_Plan_2007‐2010.pdf (accessed August 15, 2008).Google Scholar
Coglianese, Cary. 2003. Management‐Based Regulation: Prescribing Private Management to Achieve Public Goals. Law & Society Review 37 (4): 691730.Google Scholar
Curran, Daniel J. 1993. Dead Laws for Dead Men: The Politics of Federal Coal Mine Health and Safety Legislation, Pittsburgh Series in Social and Labor History. Pittsburgh, PA: University of Pittsburgh Press.Google Scholar
De Marchi, Bruna, Funtowicz, Silvio O., and Ravetz, Jerome R. 1996. Seveso: a Paradoxical Classic Disaster. In Tokyo, The Long Road to Recovery: Community Responses to Industrial Disaster, ed. Mitchell, James K. http://www.unu.edu/unupress/unupbooks/uu21le/uu21le09.htm#4%20seveso:%20a%20paradoxical%20classic%20disaster (accessed June 24, 2008).Google Scholar
Dillingham, Gerald L. 2003. Transportation Security: Post‐September Initiatives and Long Term Challenges, GAO‐03‐616T. http://www.gao.gov/new.items/d03616t.pdf (accessed June 20, 2008).Google Scholar
Douglas, Mary. 1992. Risk and Blame: Essays in Cultural Theory. London: Routledge.Google Scholar
Douglas, Mary. 1996 [1966]. Purity and Danger: An Analysis of the Concepts of Pollution and Taboo. London: Routledge.Google Scholar
Durkheim, Emile. 1964 [1933]. The Division of Labour in Society. Trans. Simpson, George. New York: Free Press.Google Scholar
Gibbs, David. 1996. Integrating Sustainable Development and Economic Restructuring: A Role for Regulation Theory? Geoforum 27 (1): 110.Google Scholar
Gunningham, Neil, Thornton, Dorothy, and Kagan, Robert A. 2005. Motivating Management: Corporate Compliance in Environmental Protection. Law & Policy 27 (2): 289316.Google Scholar
Guruswamy, Lakshman. 1991. The Case for Integrated Pollution Control. Law and Contemporary Problems 54 (4): 4156.Google Scholar
Haines, Fiona. 2005. Globalization and Regulatory Character: Regulatory Reform after the Kader Toy Factory Fire. Dartmouth, UK: Ashgate.Google Scholar
Haines, Fiona. Forthcoming. Vanquishing the Enemy or Civilizing the Neighbour? Controlling the Risks from Hazardous Industries. Social & Legal Studies.Google Scholar
Haines, Fiona, Sutton, Adam, and Platania‐Phung, Chris. 2008. It's All About Risk Isn't It? Science, Politics, Public Opinion and Regulatory Reform. Flinders Journal of Law Reform 10 (3): 435–53. http://hdl.handle.net/2328/1837 (accessed June 20, 2008).Google Scholar
Hancher, Leigh, and Moran, Michael. 1998. Organising Regulatory Space. In A Reader in Regulation, ed. Baldwin, Robert, Scott, Colin, and Hood, Christopher, 148–72. Oxford: Oxford University Press.Google Scholar
Harvey, David. 1989. The Condition of Postmodernity. Cambridge: Blackwell.Google Scholar
Heimer, Carol A. 2008. Thinking about How to Avoid Thought: Deep Norms, Shallow Rules, and the Structure of Attention. Regulation and Governance 2 (1): 3047.Google Scholar
McBarnet, Doreen, and Whelan, Christopher. 1999. Creative Accounting and the Cross‐eyed Javelin Thrower. New York: J. Wiley.Google Scholar
McNally, Raymond V. 1949. Problems of Cartel Policy. American Journal of Economics and Sociology 8 (2): 107–15.Google Scholar
Mearns, Kathryn, Flin, Rhona, Gordon, Rachel, and Fleming, Mark. 1998. Measuring Safety Climate on Offshore Installations. Work and Stress 12 (3): 238–45.Google Scholar
Mearns, Kathryn, Rundmo, Torbjorn, Flin, Rhona, Gordon, Rachael, and Fleming, Mark. 2004. Evaluation of Psychosocial and Organizational Factors in Offshore Safety: A Comparative Study. Journal of Risk Research 7 (5): 545–61.Google Scholar
Nelken, David, ed. 1994. Whom Can You Trust? The Future of Comparative Criminology. In The Futures of Criminology, 220–43. London: Sage.Google Scholar
Ordover, Janusz A. 1987. Conflicts of Jurisdiction: Antitrust and Industrial Policy. Law and Contemporary Problems 50 (3): 165–77.Google Scholar
Parliament of the Commonwealth of Australia. 2004. Review of Aviation Security in Australia. Joint Committee of Public Accounts and Audit. Report 400. http://www.aph.gov.au/House/committee/jpaa/aviation_security/report.pdf (accessed August 25, 2008).Google Scholar
Parker, Christine. 2002. The Open Corporation: Effective Self‐Regulation and Democracy. Cambridge: Cambridge University Press.Google Scholar
Paterson, John. 2000. Behind the Mask: Regulating Health and Safety in Britain's Offshore Oil and Gas Industry. Aldershot, UK: Ashgate Dartmouth.Google Scholar
Pidgeon, Nick. 1998. Safety Culture: Key Theoretical Issues. Work and Stress 12 (3): 202–16.Google Scholar
Quinlan, Michael, and Bohle, Philip. 1991. Managing Occupational Health and Safety in Australia. South Melbourne: MacMillan.Google Scholar
Rees, Joseph V. 1994. Hostages of Each Other: The Transformation of Nuclear Safety since Three‐Mile Island. Chicago: University of Chicago Press.Google Scholar
Scott, Colin. 2004. Regulation in the Age of Governance: The Rise of the Post‐Regulatory State. In The Politics of Regulation: Institutions and Regulatory Reforms for the Age of Governance, ed. Jordan, Jacint and Faur, David L., 145–74. Cheltenham, UK: Edward Elgar.Google Scholar
Scott, W. Richard. 2001. Institutions and Organizations. London: Sage.Google Scholar
Selznick, Philip. 1992. The Moral Commonwealth: Social Theory and the Promise of Community. Berkeley: University of California Press.Google Scholar
Shah, Athol K. 1996. Creative Accounting in Financial Reporting. Accounting, Organisations and Society 21 (1): 2339.Google Scholar
Sparrow, M. K. 2000. The Regulatory Craft: Controlling Risks, Solving Problems and Managing Compliance. Washington, DC: Brookings Institution Press.Google Scholar
Stinchcome, Arthur. 2001. When Formality Works: Authority and Abstraction in Law and Organizations. Chicago: University of Chicago Press.Google Scholar
Sunstein, Cass. 2005. Laws of Fear: Beyond the Precautionary Principle. Cambridge: Cambridge University Press.Google Scholar
Regulation Taskforce. 2006. Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Business: Report to the Prime Minister and the Treasurer, Canberra. http://www.regulationtaskforce.gov.au/__data/assets/pdf_file/0007/69721/regulationtaskforce.pdf (accessed June 20, 2008).Google Scholar
Teubner, Gunther. 1998. Juridification: Concepts, Aspects, Limits, Solutions. In A Reader on Regulation, ed. Baldwin, Robert, Scott, Colin, and Hood, Christopher, 389440. Oxford: Oxford University Press.Google Scholar
Weber, Max. 1991 [1925]. Max Weber on Law in Economy and Society, ed. Rheinstein, Max. New York: Simon & Schuster.Google Scholar
Weick, Karl, Sutcliffe, Kathleen, and Obstfeld, David. 1999. Organising for High Reliability: Processes of Collective Mindfulness. Research in Organizational Behaviour 21:81123.Google Scholar
Windeyer, Richard. 2006. Transport Security as an Integral Part of a National Security Plan and Ensuring Business Continuity. Paper presented at the Australian National Security Summit, November 14–15, in Sydney, Australia.Google Scholar