Responsive regulation incorporates a multi-level integrated approach towards the enforcement of regulation. It uses an escalating range of regulatory tools and enforcement measures to gain a desired regulatory outcome. It provides a framework for the use of enforcement tools with lower level sanctions at the base and more severe enforcement measures at the top. This pyramid shape suggests a sequential model of enforcement, with the lower level enforcement tools being used more frequently.33 Regulators can be responsive to how effectively
organisations and individuals are regulating themselves. Braithwaite confirms that there is a place within a responsive regulatory environment for a number of different regulatory actors, each playing a dynamic role in building capacity to persuade those that they regulate, each with a role to play in deciding when and how to punish.34
Such an approach is responsive to the moves regulated actors make, to industry context and to its environment.35 It is not possible for regulators to detect and enforce every contravention of the regulation that it administers so it is vital that regulators are able to be responsive to those whom they regulate and that they employ regulatory techniques that will best encourage
31 Valerie Braithwaite, Kristina Murphy and Monika Reinhart, 'Taxation Threat, Motivational Postures, and Responsive Regulation' (2007) 29(1) Law & Policy 137, 153.
32 Braithwaite, above n 4, 135.
33 Ayres and Braithwaite, above n 4 and Michelle Welsh, 'Civil Penalties and Responsive Regulation: The Gap Between Theory and Practice' (2009) 33(3) Melbourne University Law Review 908, 911.
34 Braithwaite, above n 26, 118. 35 Braithwaite, above n 8, 475.
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compliance.36 Those who are regulated need to understand the purpose behind regulation and be given the opportunity to suggest methods of finding a solution to the problem that the
regulation is attempting to address. Responsive regulatory theory recognises that regulation that entices people to act in the most responsible way is to be encouraged.37 It is more effective to try to persuade people to comply, rather than to punish them for not complying, particularly when the persuasion is backed up by punishment. There needs to be a range of regulatory techniques, moving from persuasion to punishment.38 Grabosky and Braithwaite suggest that regulation that focuses on ensuring compliance rather than aiming to punish can be the most effective.39 Six confirms that as part of a responsive approach or strategy there must be some level of trust by regulatees in the regulatory actors and that there is room for research that is able to consider the levels of trust that exists between regulatees and regulatory actors.40 The concept of responsive regulation incorporates the notion of ‘smart regulation’, which is ‘regulation that embraces ‘flexible, imaginative and innovative forms of social control’41 It highlights the importance of policy makers understanding how to combine different types of regulatory techniques and instruments to achieve desired outcomes.42 Smart regulation first developed in the area of environmental regulation where State agencies were failing to
36 Braithwaite, above n 8 , 20 and Welsh, above n 33, 910.
37 Philippe Nonet and Philip Selznick, Law & Society in Transition: Towards Responsive Law (Transaction Publishers 4th ed, 2009), xi and Braithwaite, above n 8, 10.
38 Braithwaite, above n 4, 19, Healy and Braithwaite, above n , S56 and Welsh, above n 33, 910 and Gabrielle Simm, 'Regulating Sex in Peace Operations ' in Peter Drahos (ed), Regulatory Theory Foundations and Applications
(ANU Press, 2017) , 420
39 Peter Grabosky and John Braithwaite, Of Manners Gentle: Enforcement Strategies of Australian Business
Regulatory Agencies (Oxford University Press, 1986)
40 Frederique Six, 'Trust in Regulatory Relations ' 15(2) Public Management Review 163, 166.
41 Neil Gunningham and Darren Sinclair, 'Smart Regulation ' in Peter Drahos (ed), Regulatory Theory Foundations
and Applications (ANU Press, 2017) 133 , 133. 42 Ibid, 140.
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effectively regulate pollution.43 It is recognised that animal law can learn from environmental law.44 Researchers such as Abate confirm that animal welfare regulators should draw from the area of environmental regulation and adopt the same smart approach by embracing the use of co-regulation, quasi-regulation and industry or self-regulation in achieving compliance.45 A responsive regulatory approach recognises that to be successful, regulation is often reliant on cooperation between governments, regulatory bodies and industry. In industry domains where governments are not the sole provider of regulation, it is necessary to rely on business and industries to assist with meeting regulatory objectives by the development of a corporate or industry culture that becomes at least partly self-regulating. Gunningham confirms that it is not uncommon to rely on oversight from local communities and other third parties to supplement direct government regulation.46 This approach to regulation continues to grow.
Regulatory space/network governance theory is an offshoot of responsive regulation theory recognising the expanding role of private actors in the regulatory space.47 Parker, Scott and others recognise that adopting a collaborative approach can build capacity and effectiveness.48 Braithwaite confirms that an approach to regulation that continues to improve by engaging with
43 Altham and Guerin, above n 19, 62.
44 Randall Abate (ed), What can Animal Law learn from Environmental Law (Environmental Law Institute 2015), xxxi.
45 Timothy Eccles and John Pointing, 'Smart Regulation, Shifting Architectures and Changes in Governance' (2013)
International Journal of Law in the Built Environment , 72.
46 N Gunningham, '“Environmental Law, Regulation and Governance: Shifting Architectures”,' (2009) 21(2) Journal
of Environmental Law 179, 200.
47 Peter Drahos, 'Intellectual Property and Phamaceutical Markets: A Nodal Governance Approach' (2004) 77(2)
Temple Law Review 401, Colin Scott, Fabrizio Cafaggi and Linda Senden, 'The Conceptual and Consitutional Challenge of Transnational Private Regulation ' (2011) 38(1) Jounral of Law and Society 1, 1 and Andrea C Bianculli, Xavier Fermandex-i-Marin and Jacint Jordana (eds), Accountability and Regulatory Governance: Audiences, Controls and Responsibilities in the Politics of Regulation (Palgrave Macmillan 2015), 6.
48 Parker, above n ; Colin Scott, 'Speaking Softly Without Big Sticks: Meta-Regulation and Public Sector Audit ' (2003) 25(3) Law & Policy 203, 213 and Christine Parker, 'Meta-Regulation: Legal Accountability for Corporate Social Responsibility? ' in Doreen McBarnet, Aurora Voiculescu and Tom Campbell (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (2007) , 3.
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a wide network of regulatory actors provides a strong base for the regulatory pyramid.49 Within such an approach is the need to determine the power of each of the regulatory actors. Such power depends on the degree of social, economic and political effectiveness and legitimacy of each regulatory actor.50
In some industries there is no central regulatory body or piece of regulation.51 Instead, in these industries, the regulatory environment involves multiple sites of regulation, with power located throughout a network of private and public actors that deploy their regulatory capacities using their own resources.52 At the crux of a network governance approach, where the regulatory environment is non-hierarchical is the recognition that such an environment can build on its flexibility by collectively employing mechanisms such as mutual surveillance, reporting and peer review in improving regulatory performance across all regulatory actors.53 In industries where regulatory authority is shared between State and non-State actors some of the actors within the regulatory network may be interconnected.54 This theory is attractive for use by social legal researchers as it is framed around a set of practices that can be observed every day.55 Such an approach seeks to understand how regulation is experienced, and there is opportunity for those being regulated to play a role in ensuring that regulation is in line with public interest. To play
49 Braithwaite, above n 10, 476.
50 Braithwaite, above n 3, viii and Emmanuelle Mathieu, Koen Verhoest and Joery Matthys, 'Measuring Multi-level Regulatory Governance: Organizational Proliferation, Coordination, and Concentration of Influence' (2016) 11(3)
Regulation and Governance 252, 252. 51 Parker, above n 6.
52 Julia Black, 'Legitimacy and the Competition for Regulatory Share' (Working Paper LSE Legal Studies No 14/2009) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424654' (2009) , 3 and Wardrop, above n 29, 201 and Verbruggen, above n 25, 512.
53 Scott, above n 7,354.
54 Scott, above n 7, 337. A good example is the relationship between the RSPCA and the State and Territory Governments, each playing a role in enforcing animal welfare and anti-cruelty legislation and presumably enforcing the dog breeding codes that exist currently.
55 Scott, above n 7, 362 and see Appendix 2 that shows that recently a number of States have set up enquiries to consider dog breeding in Australia.
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this role, people who experience law and regulation need to be given a voice, to report on how regulation impacts upon them and how they perceive regulation and regulators.56
Healy and Braithwaite argue that regulators need to be aware of, and responsive to the culture and context of the regulatory environment and of those they seek to regulate when deciding whether a more or less interventionist approach is appropriate.57 Braithwaite asserts that when considering how to improve a regulatory framework an effective approach is to assess its current strengths and then expand upon them. Building the capabilities of the regulated actors may be the most effective strategy in improving regulatory outcomes.58
This research recognises the usefulness of a responsive regulatory approach as a lens through which to consider the dog breeding regulatory environment. Such an environment has a plurality of regulators and responsive regulatory theory allows a consideration of a cooperative approach and the usefulness of both regulatory and non-regulatory technologies in achieving
compliance.59