This is a single section from Chapter 22. Read the full chapter here.

If government enforcement is required, what are the most appropriate regulatory tools?

Regulatory options should be effective and efficient, workable in the circumstances that they are required to operate in, and 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 Acts 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 be designed 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).

If it is decided that the Government needs to monitor and enforce the legislation, the choice between enforcement options (for example criminal law, infringement offences, 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 and regulatory system in which it will operate. The relevant factors include:

  • 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.
  • Enforcement objective—Will the option achieve the desired enforcement objective? For example, if deterrence is the primary objective, issuing a $1,000 infringement notice to a large corporation may have little deterrent effect. If the objective is to compensate someone for loss or damage, criminal remedies will generally not be sufficient.
  • Practical considerations—Is the option workable having regard to the circumstances in which it is intended to operate? For example, it would be impractical and not provide effective deterrence to require local authorities to pursue every instance of illegal parking through a criminal prosecution or a civil debt recovery processes. It’s important here to consider the characteristics of the regulated group, what are the range of reasons for non-compliance and the incentives affecting behaviour, and design enforcement options accordingly.
  • Fairness considerations—What are the characteristics of the regulated group—how homogenous are they? What is their ability to challenge unfair decisions? These considerations affect both what enforcement tools, or combination of tools, are likely to be appropriate (as well as effective) and the nature of the procedures and protections that are needed to ensure appropriate safeguarding of rights and interests (for example, the need for low-cost internal review processes—see Chapter 28).

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