Transcript Self-regulation - Families and Friends for Drug Law Reform

Illicit drugs policy through
the lens of regulation
Alison Ritter,
Director, Drug Policy Modelling Program
NDARC
FFDLR Public Meeting, Canberra
23rd April, 2009
Regulation
• What is it?
– Government achieving its goals (through law and rules,
regulations)
– Rules accompanied by mechanisms to monitor
compliance
– Efforts by the state to steer the economy
• Narrow definition
– shaping market outcomes for public good
• Broader definition
– ‘steering the flow of events’. All forms of social control
overlap with ‘governance’
• Purpose = abatement or control of risks to
society and to protect the public good
Shifts in regulation
over time
• 1st wave – regulation (by government through law) up to
1970s
• 2nd wave – deregulation (allowing market forces to sustain
economy, society) 1970s-1990s
• 3rd wave – ‘protective’ regulation/responsive regulation
1990s onwards
Assumptions that have underpinned much
regulatory thought:
• Regulation thought about in market terms & focussing on
economic instruments;
• Regulation as primarily the responsibility of the state;
• Distinction between criminal law and regulation.
Newer concepts in
regulation
1.
Governance is changing and role of government changing
(context: less rowing more steering)
2.
Regulatory pyramid – responsive regulation
3.
Business regulation and policing should be regarded as two
branches of the same genealogy (Braithwaite)
4.
The role of the state is limited and non-state resources
(private, public, NGO) can be used in the futherance of
society goals
5.
Networked and nodal governance provide improved
theoretical basis for understanding, interpreting and using
effective regulation
6.
Importance of globalisation as part of regulatory
structures
Regulatory pyramid
Escalating mechanisms
“Soft before hard”
1.
2.
3.
4.
Voluntarism
Self-regulation
Economic regulation
Enforcement
Ayres, I., & Braithwaite, J. (1992). Response regulation. New
York: Oxford University Press.
Regulation and
drugs? My purpose…
• To explore whether regulatory theory has
anything to offer illicit drug policy
• Key issue: illegality of behaviour (so not
thought about as a regulatory issue)
• Usual focus: international treaties and law
enforcement
• Assumption: existing legal framework
• Application of regulatory theory to illicit drugs
policy
• Four areas:
–
–
–
–
Self-regulation (from pyramid)
Market regulation (from pyramid)
Non-state actors (hybrid governance)
Nodes and networks
Illicit drugs and
regulatory pyramid?
Voluntarism
persuasion – prevention
programs
Self-regulation
nil
Economic regulation
nil
Enforcement
command and control: law
and treaties
Self-regulation
• Exercise of control (by companies, individuals) for
the public good
• Self regulation in industry as a conflict of interests
(e.g. alcohol advertising)
•
•
•
•
Drug markets effectively self-regulating
Drug users self-regulate: use and harms
Self-regulation from perspective of consumer
Importance of a powerful consumer movement
How can the state
mobilise self-regulation?
Possibilities:
1. User groups (eg AIVL)
• History
• Regarded as ‘fringe’
• Within regulation – could be given
legitimacy as agents of regulation
• Funding and role clarity required
2. Changing consumer preferences
eg: Non Injecting Routes of Administration
(NIROA) – research evidence to support
(Hunt; Casriel; des Jarlais)
Self-regulation
Not a new idea: microgovernance (Burris)
•
Promoting health and security by mobilising the
community’s own knowledge, capacity and
resources
Lower costs
•
Regulatory theory suggests it may be potent &
lower cost to govt than regulatory strategies at
top of pyramid (law enforcement).
Risks
• State abdicates responsibility
• Further marginalisation
Economic regulation
• The global market is huge:
–
–
–
–
Global narcotics trade $320 billion (US) 2005 estimate
Illegal traffic in human beings $32 billion
Trade in illegal firearms $1 billion
Illicit drug industry turnover larger than the international
trade in iron, steel and motor vehicles;
– Same size as the international trade in oil and gas
• The drug market is dynamic and diverse
• The usual market-based regulatory approaches
(e.g. taxes) cannot be applied.
Market-based
mechanisms?
• Using market forces on sellers
– e.g. provision of needle/syringe at point of sale
• Using market forces on buyers
– e.g. pill testing
– evidence of effect on markets (Spruit; Kriener)
Role of non-state
actors
• “the state cannot, and should not, be the only or
indeed primary regulator” (Grabosky)
• Shearing: we must move out of a “state-centred
view of governance…a particularly tenacious
paradigm that needs to be eclipsed”
• Terms for harnessing of non-state resources:
–
–
–
–
–
Co-production
Multi-lateralisation
Interagency/multi-agency partnerships
Third party policing
Hybrid governance
Illicit drugs - much use
of non-state actors, but
no theory
Examples:
• Precursor chemical diversion: police
working with the pharmaceutical industry,
chemical manufacturers to prevent
diversion
• Project Stop – pharmacy monitoring
system
• NGO service providers, families and
friends, local communities
• Industry: drug testing in the workplace
• Engaging non-state actors legitimises this as part
of new regulatory framework, thereby allowing
meta-regulation of the non-state actors
• Reframing as a whole of community concern
• Illicit drugs regulation may by necessity need
these mechanisms and mobilised resources
precisely because the illegality of the behaviour
placing the state in a position where it may not be
able to operate other than through ‘command and
control’.
Issues
• Implications of this “pluralisation” are farreaching:
–
–
–
–
–
Role of the state
Role of industry/private sector
Notions of ‘public good’
Competing objectives amongst actors
Definition and activity of ‘governance’
• But here to stay – worth investing in the
theory
Nodes and networks
• Nodes, networks and webs of influence popular ideas within
current regulatory theory (Burris; Braithwaite; Wood and
Shearing) because of the diversity and dispersal of actors
and agents of change
• Governance is now more accurately theorised and described
as networks rather than simple hierarchies
• Nodal governance enables examination of how regulatory
strategies play out and how the whole network of regulatory
actions and multiple actors operate in synergistic and nonsynergistic ways.
• In this complex and fluid environment, illicit drugs policy
could gain greater coherence and improved impact if
considered in the context of regulatory theory around
networks and nodes (Burris; Braithwaite).
Other things
More that regulatory theory and practice can offer
illicit drugs:
• Regulatory failure (e.g. tobacco growers and
regulation)
• Strengths-based regulatory pyramid (rewarding
behaviour)
• Globalisation
• ‘Weak and failing states’ (DuPont; Wood)
• Security-development interface (Duffield)
Conclusions (1)
• Regulatory theory has much to offer illicit drug policy
• Shift thinking from binary (persuasion & ‘command and
control’) to pyramid of responsive regulation
• Self-regulation has not received serious consideration but
holds potential
• Regulation through the operation of a market is standard
regulatory activity. Application to ‘black’ market plausible
with imagination (e.g. pill testing kits)
• Role of non-state actors – many examples. Regulation gives
theory to this work/practice (e.g. meta-regulation)
Conclusions (2)
• Provides a theoretical framework (often sorely
lacking in illicit drugs)
• Regulatory theory enables the opportunity to
explore unchartered areas: new ideas
• More thinking to be done …
Acknowledgements
The following regulatory scholars were invaluable resources in
shaping the work in this paper: John Braithwaite, Valerie
Braithwaite, Peter Grabosky, Clifford Shearing and Jennifer
Wood.
Regulatory Institutions Network, the Australian National
University
Further information
Assoc Prof Alison Ritter
Drug Policy Modelling Program, Director
National Drug and Alcohol Research Centre
UNSW, Sydney, NSW, 2052, Australia
E: [email protected]
T: + 61 (2) 9385 0236
DPMP Website: http://www.dpmp.unsw.edu.au