Harmonisation of social regulation in the Australian Federation: a case study of occupational health and safety

2017-02-28T04:47:48Z (GMT) by Windholz, Eric Larry
This thesis examines the harmonisation of Australia’s occupational health and safety (OHS) laws and, through that examination, the intersection of three important contemporary public policy issues: harmonisation; social regulation; and federalism. Through this examination the thesis challenges the prevailing political zeitgeist of harmonisation as an overwhelmingly positive and economically rational reform. Instead, the thesis reveals that harmonisation reforms are complex, contested and, as with all areas of social regulation, involve difficult trade-offs between competing values and interests producing both winners and losers. The thesis begins by describing and conceptualising each of the key research frontiers: harmonisation; social regulation; and federalism. Each issue is found to be more complex than first appears, and capable of multiple meanings. The thesis develops a conceptual framework for each issue through which each can be better understood, and its use examined. The frameworks are then employed to examine the harmonisation of Australia’s OHS laws. The OHS policy arena provides a particularly interesting and challenging case study. It is an area characterised by strong competing interests and multiple stakeholder objectives where progress (viewed from both the employer and worker/union perspectives) has often been the product of hard fought battles. It also is an area with a rich harmonisation history, employing different modes of federalism and different harmonisation techniques. The thesis reveals that the decision to harmonise social regulation, properly understood, is a value judgement that involves the balancing of three broad sets of values: (1) economic efficiency; (2) broader societal values of equity, justice, fairness, etc; and (3) the democratic values underpinning a federal system of government. It also reveals that harmonisation initiatives involve balancing the interests of different actors, including between single-state and multi-state regulatees; between regulatees and the people whom the regulation is intended to benefit; and between regulatees and beneficiaries of different states. However, in the case of OHS these complexities and trade-offs were either not understood or positively avoided in the harmonisation policy development process. Broad promises were made that the reform was unable to fully deliver. This left some stakeholders dissatisfied and the harmonised regime vulnerable to the pressure these dissatisfied stakeholders could bring upon responsive state governments to deviate from the uniform model laws. Several reasons for this are identified. These include: the economic-centric nature of the policy debate that largely ignored the distributional effects of the reform; the ‘seductive’ nature of the harmonisation concept itself; the selection of harmonisation mechanisms ill-suited to delivering the reform’s policy objective; and the existence of two tiers of government involved in setting OHS policy which provides dissatisfied stakeholders with the opportunity to re-advocate their case before more responsive state politicians. The overall findings of this research project suggest that some reform of the processes and institutions of harmonisation policy making may be desirable, and a number of ideas to make harmonisation work better are offered. Such reforms it is suggested would enhance the efficacy, efficiency and legitimacy of the harmonisation process, and its outcomes. 

Awards: Winner of the Mollie Holman Doctoral Medal for Excellence, Faculty of Law, [2013].