This is a single section from Chapter 19. Read the full chapter here.

What regulatory tools are the most appropriate?

Regulatory options should be effective and efficient, workable in the circumstances that they are required to operate in, and be appropriate in light of the nature of the conduct and potential harm they are intended to address.

 

All regulatory options included in legislation must be consistent with the purpose of that legislation. Some statutes are intended to prevent, deter or punish certain behaviour. Other statutes are intended to protect the public or compensate those who have suffered loss. In some cases, legislation may intend to provide a mechanism by which individuals can resolve their own disputes by granting civil rights of action or by providing for a scheme of self-regulation. In other cases the legislation will be empowering (such as authorising local government to operate, and utilities to enter and acquire rights over private land).

Any decision to include a particular regulatory option in legislation, particularly those involving the intervention of the Government (for example criminal law, infringements, pecuniary penalties, injunctions, or management bans) must be based on a robust and transparent assessment of how appropriate the option is in relation to the purpose of the legislation and the particular circumstances in which it will operate.

 

  • The harm caused and the nature of the conduct involved: The option must be appropriate in light of the conduct it relates to. For example, it will generally be inappropriate to use the criminal law to address matters relating to a simple breach of a commercial contract or a failure to pay a private debt. By contrast, conduct that involves deliberate and significant physical harm to a person should generally be subject to the criminal law.

 

  • Effectiveness and efficiency: Will the option have the desired effect? For example, where deterrence is the primary objective, issuing a $1,000 infringement notice to a large corporation may have little deterrent effect. Where the objective is to compensate someone for loss or damage, the ability to seek damages for torts or breaches of contract might be more effective than processes such as obtaining compensation through the criminal process.

 

  • Practical considerations: Is the option workable having regard to the circumstances in which it is intended to operate? For example, it would be impractical to require local authorities to pursue every instance of illegal parking through civil debt recovery processes. 

 

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