Do Work Health and Safety regulations comply?

The draft model Work Health and Safety regulations were published for public comment in December last year, but rather than sailing through with general public support (i.e. negligible objection) they were met with incredible public objection, with over 1000 submissions.  This astonishing fact begs the question; has something gone wrong in the WHS legislation making process? Or did the Australian public suddenly have nothing better to do than write all those pages?

You may, or may not, be aware that when legislators want to create legislation there are very solid principles and clear guidelines that legislators must comply with.  These “rules-for-rule-makers” are provided to us courtesy of the Council of Australian Governments (COAG) and the Office of Best Practice Regulation (OBPR).  And for mine, they are excellent.

The reasons we in Australia have those rules are many but in a nutshell it’s because some governments have over the years proved to be pretty good at creating flawed legislation with unintended or anti-competitive consequences. And some have been pretty good at blustering their rules through to the public and papering over the deficiencies.

It pleased me to learn that those legislation making guidelines are incredibly similar to the design process that engineers are taught in first-year university:  Define the problem very, very clearly.  Make sure you are not misled by an apparent problem, which can be hard to do when you already have a solution in mind.  Get creative and think up several options to solve that problem.  Work out the costs and benefits of each. Present your case and pick the best design option. Finally, create the solution.

Flawed and less economical engineering design solutions result when we reverse or distort the design process; by building a solution first then fudging the report to the boss or client, making out it was a good design choice.  The result may be that the design goes ahead, but it will invariably be a less effective and productive result than it could have otherwise been.  Ultimately, customers become less satisfied. And do it one time too many and customers eventually leave you.

The same applies for legislation design and writing, which could be considered to be somewhat like social engineering.  Except in the case of national legislation, the designers have a captive market and no “customer” can walk away, except unless they can be one of the rare few that can get exemptions.

Another COAG principle regarding the design of legislation is that regulation is usually the least preferred solution for most problems.  Blank pages and non existent paragraphs are default regulation elements when there is inadequate substantiation.  Nothing should cause the public to go about their business in a way they would not otherwise do if there is not good reason.

There is no argument that we do not need OHS regulation. In fact much of the present State based legislation that repealed a lot of bad legislation in the nineties has brought considerable productivity as well as safety. The Victorian efforts were a stand out achievement.  What is in question now however, according to the many submissions on WHS, are critical small elements of regulation; paragraphs, sentences and words that change the operation of OHS law.

Sometimes legislators and their expert advisers do a pretty good job working through the legislative design process. And they create great Regulatory Impact Statements (RIS) that nail the problem and quantify and explain how the best solution was arrived at.  And effective, productive legislation follows.  The OBPR publishes examples of good RIS on their web site.

But sadly, sometime legislators don’t do a good job: Legislation gets invented that is not as good as it should have been. And sometimes RIS are weak and do not provide adequate substantiation of legislation.  We’d hope the OBPR and COAG watchdogs are on the case of all those legislators – before the moulds are made.  A tough question is, what should happen if an expensive and less than satisfactory mould has been made and the product is not yet cast?

We are told that model WHS regulations are basically going to implement and nationally harmonise what is already the OHS norm in the States. And the draft may well be based on and look a lot like current State OHS regulations. But, like the fine print of a contract, it only takes a few word changes; an extra paragraph or two to completely change the design of the legislation and way they it coerces people.

And if only a few small words are changed, it is easy to argue that a few words do not warrant another (expensive) impact assessment.

If you were one of those many WHS objectors, you possibly took offence to some small element, or perhaps even large swathes, of the model WHS regulations. Few if any would have objected to the whole.  Some will object no matter what a law says, but most “customers” [the regulated] who would rather get on with their business, but have instead set aside substantial time and effort to object, probably have some valid points.

If you are one of those objectors; considering the element(s) of the model WHS regulations that you take offence to, you could consider these COAG based questions about legislation design and assess if their been good compliance:

1. Has a proper case been established in the RIS to substantiate the need for that chunk of new or changed regulation?  And do you think the case was made before the legislation was moulded, or as sometimes happens, have parts of the RIS been fabricated to support a predetermined design?  Or, have bits of legislation been written or tweaked that don’t even have any substantiation?
2. Have a good range of feasible policy options been properly considered, including self-regulatory, co-regulatory and non-regulatory approaches?  And have their benefits and costs been properly assessed?   Or could legislators have limited the number of options presented to say two with the other one obviously worse than the one they wanted?    Could the analysis have been written to bundle many elements into an all or nothing choice?  Would it have been better to break it down and provide analysis and choices for several key elements of the regulation?  Is quantification lacking?
3. Have the legislators adopted the option that generates the greatest net benefit for the community?  Or could the excessive costs of the less well designed bits have been swept under the carpet?
4. Will the legislation elements restrict competition?  Or perhaps more subtly, will they provide unreasonably generous advantage for some in the regulated community over others?  Could some regulators overly influence the design of the legislation to give themselves much more market power to dictate, prescribe and enforce than they presently have?
5. Does the legislation element provide effective guidance to the regulators and regulated parties in order to ensure that the policy intent and expected compliance requirements of the regulation are clear?  Or is the legislation sometimes a bit wishy-washy, leaving too much to the discretion of a bureaucrat at some later time?
6. Will the legislation element remain relevant and effective over time?  Or will they cost taxpayers a packet to enforce – with negligible real benefit over the current situation?  Will the solution to some not-so-good bits be to just not enforce them?
7. Have the legislators effectively consulted with affected stakeholders at all stages?  Or has the consultation been constrained or more show than go?  If there was effective consultation, why are so many complaining?
8. COAG says government action should be effective and proportional to the issue being addressed.  Is it that for the bits you care about?  Proportionality involves ensuring that government action does not ‘overreach’, or extend beyond addressing a specific problem or achieving the identified objective.  Has there been over-reach?

I have worked with OHS regulations for over fifteen years and know the plant sections well. And considering model WHS reg’s in light of the above COAG perspective I have concerns.   How about you?

Martin Haglund