In May 2025 a second edition of Regulation in Australia was published.
This book provides a comprehensive analysis of the nature of regulation, its origins and development in Australia, why governments regulate, how they regulate, and who regulates whom at the federal, state and local government levels. Management of the regulatory process, the principles of good regulation and ‘red tape’ in regulation are examined. The role of soft law, prescriptive, performance-based and principle-based regulation, as well as the use of rewards and incentives in regulation is also explored.
Through a detailed history of Australian regulation, it argues that the ‘regulatory state’ is not a new concept but has a long history dating back to the nineteenth century and that although the modern language of risk and risk management was not historically used, extensive and numerous legislative provisions show that regulation was ubiquitous and pervasive. Risk management, however termed, has been at the heart of public policy for centuries.
Governments achieve their public policy objectives or produce public value by using a variety of ‘tools’, ‘policy instruments’, ‘methods’, ‘measures’ or ‘interventions’. The book examines the general nature of the regulatory methods or tools employed by governments. Knowing which regulatory tools to use is part of the ‘regulatory craft’ that must be mastered if regulators are to successfully implement public policies.
In some detail the book examines a wide range of regulatory tools, summarised in the diagram below.
The taxonomy used categorises governmental regulatory tools primarily according to the types of resources and processes they use to achieve public policy objectives. Economic regulation involves the manipulation of the production, allocation or use of material resources (such as money or property) in all its forms, as well as the use of markets as regulatory tools. Transactional regulation is a variant of economic regulation where the form of the economic tool assumes great importance but also involves the use of consensual, or ostensibly consensual, agreements between governments and non-government parties to achieve a government’s objectives. Governments’ exclusive power to confer benefits through authorisation regulation permitting certain forms of conduct is a major resource that can be deployed to direct or prohibit activities. Informational regulation relates to access to information, knowledge or beliefs. Behavioural regulation involves the application or manipulation of knowledge about how people behave and make decisions to ‘nudge’ them into behaving in particular ways. The use of physical or technological power, or structural or design-based regulation, relates to the ability to manipulate a regulatee’s environment to determine or influence action. Finally, regulatory technology (‘RegTech’) is an emerging form of regulation that uses various new technologies, such as machine learning and artificial intelligence, to achieve public policy objectives.
What is especially interesting for the readers of this blog is that the book also examines the crucial issues of compliance, enforcement and sanctions and provides expanded consideration of regulatory failure.
In relation to compliance, it examines the challenges in detecting and measuring non-compliance and the growing importance of using the traditional media, social media and regulatory intelligence to inform regulators. In explaining non-compliance and regulatory failure, it looks not only at the responsibility of regulatees or duty-holders but at governments and regulators who may have designed poor regulatory frameworks, poorly implemented, monitored and enforced their regulatory scheme, failed to clearly identify the appropriate targets for regulation, chosen the wrong regulatory tools or have been captured by special interests. It suggests that there is much to be learned from regulatory failure.
The effects of investigations and enforcement activities are rarely considered in terms of their effects on those being investigated, as well as for others who may be involved in the process, including those who make a complaint or lodge a notification against regulatees. Investigations, including any subsequent disciplinary, criminal or civil action, may have a detrimental effect on the health, reputation and livelihood of regulatees. In some cases, it may lead to self-harm or even suicide. The book discusses whether regulators have a legal duty of care to protect regulatees from harm, be it psychological, reputational or financial and whether, even in the absence of such a duty, regulators should consider the welfare of those affected by their actions because it represents good regulatory practice. This may require a sensitive or ‘trauma-informed approach’ based on an understanding of regulatees’ experiences of the regulatory process.
There is an extensive discussion of the wide range of administrative, civil and criminal sanctions in enforcement and the need for regulators to understand which ones to use in which circumstances, the strengths and weaknesses of each, how they can be used, and against whom, taking into account the available empirical evidence as to their effectiveness, efficiency and fairness. More broadly, it examines the range of regulatory strategies adopted by governments in achieving their policy objectives, in particular responsive regulation, risk-based regulation, problem-based regulation and smart regulation.
While the book provides an accessible overview of regulation which is firmly grounded in Australian law and practice, it is informed by the rapidly expanding international literature on regulation. Ultimately, it aims to contribute to the development of the discipline of regulation and to provide regulators, policy makers, lawyers and students of regulation wherever they are located with a body of knowledge that they can draw on in order to avoid regulatory failures and respond to rapidly changing circumstances, such as, most recently, gene technology, nanotechnology, biotechnology, internet gambling, cybercurrencies, autonomous vehicles, the gig economy, ride sharing and point-to-point transport, the digital economy, artificial intelligence and climate change, alongside increasing social and economic inequality and emerging monopolies and oligopolies.
Further details about the book can be found here.
Arie Freiberg AM is an Emeritus Professor at Monash University, Melbourne, Australia. Professor Freiberg’s areas of expertise are sentencing, non-adversarial justice, regulation and the administration of criminal justice. He is a recognised expert on regulation, sentencing and sentencing reform. He is a member of the governing board ofthe Australian Health Practitioner Regulation Agency. Professor Freiberg has produced some 200 publications in a number of areas including criminal law, sentencing, non-adversarial justice, regulatory theory and emotion and public policy.
