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New strategies for safety regulators: beyond compliance monitoring

CollectionsANU School of Regulation and Global Governance (RegNet)
Title: New strategies for safety regulators: beyond compliance monitoring
Author(s): Hopkins, Andrew
Keywords: safety regulation
management of risk
industry standards
safety regulators
compliance monitoring
Publisher: The Australian National University, The National Research Centre for OHS Regulation (NRCOHSR)
Series/Report no.: Working Paper (National Research Centre for OHS Regulation (NRCOHSR), The Australian National University) ; No. 32
It is often assumed that the role of regulatory agencies is to bring about compliance with regulation. This makes sense in some contexts. For example, consumer protection agencies aim, among other things, to ensure that traders comply with regulations prohibiting misleading advertising. It may be a matter for the courts to decide whether something is misleading or not, but the law is relatively clear and the concept of compliance is relatively unproblematic. In the case of safety regulation, however, matters are more complex. The focus in this paper will be on safety in an organisational context – for example, safety at work, or safety on public transport. I shall argue that in this context the meaning of compliance is often problematic and that a focus on securing compliance may not be enough to achieve the regulatory goal of safety. Safety regulators may need to go beyond monitoring and enforcing compliance. The purpose of this paper is to outline a number of ways in which they may do this. What is distinctive about the regulation of safety is that it is the regulation of risk. Safety regulation cannot simply prohibit harm, as one might prohibit anti-competitive conduct. So-called ‘accidents’ are indeed accidents in the sense that they are unintended, and it makes little sense to prohibit them. In these circumstances the aim of regulation can only to reduce the risk of harm, not to prohibit it. The point can be put another way. It is conceivable that an employer may have done all within its power to prevent harm, and that an accident may nevertheless occur as a result of an unforeseen and unforeseeable set of circumstances. Companies should only be guilty of an offence if they have not done what they should have done to reduce the relevant risk. It is this, not the harm, that is the offence. What sort of regulatory tools are open to regulatory regimes, which seek to reduce risks to safety? One strategy is to enact and enforce preventive regulations, that is, regulations which specify things that should or should not he done, rules which, if complied with, will keep risk within acceptable bounds. Because such regulations prescribe detailed “do”s and “don’t”s, they are often described as prescriptive.


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