What is Excess Regulation Doing to us All?

Originally posted on April 16, 2015 @ 6:47 AM

What is Excess Regulation Doing to us All?

First published HERE

excess regulationThis paper follows my presentation at the inaugural Psychology of Risk Conference that was held in Sydney in March 2015. I’d like to warn readers up front that this piece is longer than usual as I attempt to tackle a topic that is complex and paradoxical.


If regulation is your tool of choice, you will probably believe that when existing regulation doesn’t work, that you just need more, better or greater vigilance in regulation to achieve your desired level of ‘control’. If this is the case for you, some relevant questions to ask may be: what does excess in regulation do to us? Or perhaps, when is regulation excessive? Or, what effect might excess in regulation have on motivation, perception and how we treat, relate or exchange with others? These critical questions are tackled in this paper.

Excess and Addiction

When we have an excess of anything in our life and we become attached to it, one of the by-products is often addiction. While this paper does not aim to explore addiction in depth, the key point I make in this observation is that people who are addicted to something (e.g. alcohol, gambling, sex or a drug) can become physically immune over time to its effects and in order to achieve the same desired feelings, need more and more of it (excess). One of the greatest problems with escaping from any addiction is the realization and confession that one is ‘hooked’ on excess.

The problem when we develop an excess in regulation, just like addictions to substances, or gambling for instance, we can become immune over time to its effect, and ‘need’ more and more. When one regulation doesn’t appear to work, is this akin to becoming immune to substances and do we then need to increase the amount to achieve the desired outcome? This is dangerous in risk and safety as an addiction to regulation can lead to a focus on obedience (to the regulation), to leading through fear and an over-emphasis on ‘desired behavior’ and ‘absolute controls’ rather than on understanding, empathy and engagement. Perhaps it would be useful to explore what regulation is and what it aims to achieve?

What is Regulation?

Regulation aims to set a ‘social norm’ and to create a common understanding for response in people’s actions within a given population. In risk and safety, regulation aims to create norms in organisations, persons within organisations and those who perform work. Regulation is necessary and sets minimum standards and expectations in both work, and life in general. Just like drinking alcohol in moderation can be healthy, so too can regulation in moderation be healthy for work and life. However, there can be dangerous trade-offs when regulation is our only approach and when it is created in excess. So what do I mean by ‘excess’?

What is Excess?

Excess is of course, a subjective term. ‘Excess’ means different things to different people. For example, let’s consider it in relation to our intake of food or drinking alcohol. We have national guidelines in Australia for food intake and alcohol, and while these may ‘make sense’ to some, it is well documented that around 26% of Australian’s drink beyond the recommended limits. Are these people drinking in ‘excess’ or do they simply have different standards to the rest of the community? When does drinking in ‘excess’ become an addiction? When does regulation in ‘excess’ also become an addiction?

This is a challenging question. Setting ‘norms’ in a society with so many different people from different cultures who have different expectations, beliefs and standards is never going to be an exercise that will reach total and uniform agreement. There will always be different understandings of ‘norm’ and ‘excess’. So just like different ‘norms’ and expectations for alcohol or food intake, is it any surprise that the same differences will exist for regulation? How can we know how much regulation is too much (excess) regulation? Do we need a regulation about excessive regulation? Get my point?

So how can we try to understand what excess means in the context of risk and safety?

One way to answer this question might be by comparing the amount of regulations in one jurisdiction to another. While this may seem a logical way to define ‘excess’, we know that when we are trying to measure and assess something that is subjective in nature, that logical analysis is not always going to work.

However, by recognising that the term ‘excess’ is subjective, we know that even if we did try to provide some type of rational comparison, of how much regulation we have compared to another jurisdiction, that one persons ‘excess’ may be another persons ‘norm’. So perhaps asking the question, ‘what is excess?’ is the wrong question. Perhaps a better question is, “what are the indicators of excess, and what might excess do to us?

What can we Learn from a ‘Raving French Christian Philosopher’?

For an answer to these questions, I turned to an author and Philosopher, Jacques Ellul.

I am new to Ellul who, as a good friend Craig who knows Ellul’s work much better than me, describes as being a ‘raving French Christian philosopher’. I read Ellul’s The Technological Society where he introduces his work on ‘technique’, which he defines as; “the totality of methods rationally arrived at and having absolute efficiency in every field of human activity” (1967, p.xxv).

‘Technique’ is about efficiency and process, and just like regulation, it aims for ‘control’ and considers the work of people as ‘outputs’ (i.e. efficiency). If we consider this in the context of regulation what we may see, hear and feel about regulation is a focus on outcomes (compliance with regulation) and absolutes. I wonder if we concern ourselves mainly on the ‘technique’ of regulation, whether we loose our ability to understand human fallibility and understanding?

If we follow Ellul’s thinking, when there is a focus on efficiency at all costs, and ‘outputs’ are key, perhaps this could be a cue that there is ‘excess’?

I know however that there will be some who will argue that regulation, fear and obedience are valid ways to control people and achieve an outcome. There are people who suggest that we just need a focus on efficiency and if we don’t, ‘we will go backwards’ as an economy and society. However, if people are doing something only because they are fearful of punishment, what does this mean in terms of motivation? If people respond to the commands of regulation simply because they are fearful of the outcomes, are they motivated in what they do?

Regulation and Motivation

I wonder if the first victim when the focus is on regulation and technique in ‘excess’, could be freedom and autonomy as there is little room for creativity and imagination in ‘technique’ and regulation, instead efficiency. As we know from Deci’s work, the best way to motivate people is to support their sense of autonomy. ‘Efficiency’ doesn’t care too much for autonomy, or freedom, instead it seeks control and conformity with process. So if we observe signs of excess and, of ‘efficiency’ and outputs, what impact can this have on how we go about our lives?

Again, I turned to Ellul for his thoughts, as he notes “not understanding what the rule of technique is doing to him and his world, modern man is beset by anxiety and a feeling of insecurity” (1967, p. xxv). Excessive technique and regulation (just like addiction) can lead to anxiety because the absolute efficiency approach is about fear, obedience, completion and control. When people are seen as the sum of ‘outputs’ and efficiency, and when our freedom is taken away from us, we become anxious as we focus solely on creating ‘outputs’ rather than having the freedom to think for ourselves (autonomy). So, if we accept that anxiety, depression and fear make us unwell, perhaps we should consider the health of people and organisations as an indicator of excess?

All this is very good, however we live in a world where we are surrounded by regulation and a focus on efficiency, so should we just ‘suck it up’ and get on with things?

But this is the World we Live in, isn’t it?

Perhaps the most poignant and liberating point that I take from Ellul’s work however is that he acknowledges that he lives in the very society that he writes about and criticizes; “I am keenly aware that I am myself involved in a technological civilization, and that its history is also my own” (1967, p. xxvii).

I acknowledge that I too, from time to time, am seduced into thinking that regulation, and more of it, is the answer. There have been many times in my life where I have thought; “if only people would do what is expected of them”, and I know that despite my regular writing, and many conversations about how we need to be conscious of the amount of regulation (focus on efficiency) in our life, that I regularly fall into the trap also.

For example, there are times when a car speeds past me on the freeway when I think; “Boy I hope there is a cop around the corner to catch them. Why should they get away with speeding while I stick to the limit ?” Of course this example could spark a great discussion of it’s own, and there is not time for that in this paper, however, the point I want to highlight is how quickly I jump to the conclusion that regulation is the answer (they must get caught), and I have almost no care in that situation for what is happening in the other persons life. Perhaps they are speeding to get home to a sick child, an elderly parent, maybe they are sick themselves. Now, I cannot know any of this from a car driving past, but my point is that these things don’t even enter my mind. When our focus is on regulation, how can they?

For those who have responded to my previous pieces with notes of ‘that’s all fine in theory’, and ‘I bet that’s not how you always go about things’, yes you are right, like Ellul, I am involved in the risk and safety society that I write about and am too fallible and prone to making the very mistakes that I write about. Being seduced into thinking like this is heavily influenced by our social arrangements, and we know the impact that our social arrangements have on how we make decisions and judgments. That is why I believe that it is critical that we in risk and safety need to focus more on understanding our social environment and the impact that it has on how we go about life. Oh, and I love being human!

But, I’m not the only one that this impacts, lets explore some other examples of what ‘excess’ regulation is doing to us all.

What Does Excess in Regulation do to us?

My first example relates dates back to October 2013 when a truck was involved in an accident in the Sydney Harbor tunnel which caused mayhem for over one million people who do the ‘morning commute’. The truck somehow had its tipper section rise up when it was inside the tunnel, causing the truck to become stuck. I remember listening to the NSW Roads Minister Duncan Gay report on this incident on the nightly news. The Minister cannot possibly have all of the answers as to why the incident occurred only a few hours after it occurred. However as I think of the social context in which he makes his report, I think of the community expectation for a decisive and strong Minister, one who is focused on action and accountability (efficiency). He must demonstrate that his Government will get tough, lay down the law and not accept this type of disruption to the community as it creates inefficiency. Could this create a desire for more regulation? Could Governments become easily seduced into thinking that more regulation, or more vigilance is the answer?

The problem when regulation is our ‘tool of choice’ and efficiency is our focus, we rob ourselves of time for understanding, we have no space for mistakes (inefficiency), instead we cry out for more regulation on top of regulation, for tougher penalties and ‘crack downs’. This in turn drives us to more binary thinking (people just need to be safe!) and a discourse of control. The excess of regulation leads our public officers to suggest, as Minister Gay did, “a few idiots put their truck into gear before they put their brain into gear”. Is it really that simple?

So what does this mean for us in risk and safety, and what can we learn from this?

A Case Study in Risk and Safety

Of course, if we want an example of how this plays out in our own industry, we need look no further than Piper Alpha. In this significant event that occurred on 06 July 1988, 167 people lost their lives due to a fire on an oilrig in the North Sea. While I expect most people will be aware of this event, the key point I highlight about this tragedy is that the people who survived the fire were those who did not follow the rules and who, instead of going to the designated safe haven, went with their ‘gut feelings’ and jumped over board. The people who didn’t follow the regulation lived. (This should not be mistaken for thinking that we should have a ‘laissez-faire’ approach and have no regulation, but this event does serve as a good reminder that relying only on regulation may not always lead to the ‘safest’ outcome, it may restrict thinking and imagination and provides only one solution to what is often a complex problem).

But it is not only in risk and safety that ‘excess’ in regulation is causing an imbalance.

Case Study – Research on Discipline in Schools

In July 2011, the Council of State Governments Justice Center and The Public Policy Research Institute, Texas A&M University in the United States published a report titled Breaking School Rules.

The reports Executive Summary notes: “This report describes the results of an extraordinary analysis of millions of school and juvenile justice records in Texas. It was conducted to improve policymakers’ understanding of who is suspended and expelled from public secondary schools, and the impact of those removals on students’ academic performance and juvenile justice system involvement.” (2011, p.ix)

The study looked at how effectively (or not) suspending students impacted on student’s academic performance. While it is not possible to summarise 106 pages of the report here, some of the key findings about the impact of suspension (due to non compliance with regulation) may help us to understand ‘what excess in regulation does to us all’, they include:

· Nearly six in ten public school students studied were suspended or expelled at least once between their seventh- and twelfth-grade school years

· Students who were suspended and/or expelled, particularly those who were repeatedly disciplined, were more likely to be held back a grade or to drop out than were students not involved in the disciplinary system.

· When a student was suspended or expelled, his or her likelihood of being involved in the juvenile justice system the subsequent year increased significantly.

It appears from this research, that even from an early age in the context of school, that a focus on excess in regulation, as opposed to understanding and supporting, has an impact on us. Those who were disciplined more at school had poorer academic outcomes and were more likely to be involved in the justice system. Does this excess in regulation benefit these children?

Current Case Study – Vaccinating Children in Australia

The federal Government in Australia recently announced of a change in public health policy that will see people who fail to vaccinate their children, loose their child and family support (welfare) benefits. Whilst the response from the public has generally been in support of this policy, and further, Australia’s peak medical body the AMA have come out in support of vaccination but is the approach adopted by the Government going to achieve it’s desired outcomes? Will adding regulation to the equation increase the number of children vaccinated in Australia?

While I don’t intend this piece to be a debate about the effectiveness, or otherwise, of vaccination, what I am interested in, is whether adding regulation to the equation aids in motivating parents, as it is presumably intending to do?

In considering this question, I read with interest an article published in The Sydney Morning Herald’s online site on 14 April 2015.

In the article, Associate Professor Julie Leask, an reported immunization expert from the University of Sydney, goes on the record to note that the “Abbot Government’s tough new stances (i.e. regulation that restricts welfare benefits) will increase vaccination rates by an absolute maximum of one percent”.

As an alternative to the proposed punitive measures, Professor Leask suggests instead, that “the government should focus on removing ‘practical barriers to immunisation’, such as a better reminder system for parents, more flexible clinic hours and a focus on culturally respectful health services. She said a particular focus should be on refugee and migrant catch-up services.”

Further, in the same article, Dr John Cunningham, a spokesman for pro-vaccination group Stop the AVN is quoted as saying that the proposed changes “would act to encourage people who had forgotten to vaccinate their children or had fallen behind.”

So if we follow Dr Cunnigham’s argument, people would forget less, and would not fall behind because of the fear of having their benefits taken off them. While I expect this will be the case for many who rely on family and welfare benefits, I wonder if the same result might be able to be achieved through a more supportive approach that focuses, as Professor Leask suggests, on ‘removing practical barriers to immunisation’?

So my question here is, when regulation is our tool of choice, does this blind our thinking about other alternative options? Could the same result (or better), be achieved with approaches that aren’t so punitive? Of course the real challenge will probably come 12 months after the policy is implemented and if immunisation rates improve, and the regulation is considered a success. The question is, successful at what? If it is about more motivated parents, I suggest not.

Some Critical Questions for us to Ponder

So if we accept the thesis that excess (in anything) may lead to addiction, that in turn creates a craving for ‘more’, it might be useful to consider questions that can support us to not only identify the cues of ‘excess’, but also what we may be able to do to combat the seduction that it inevitable creates.

Here are a few questions and thoughts that have come to my mind in relation to this conundrum:

· Could we consider ‘responding in reverse’? For example, at the conference I spoke of an incident investigation I was involved in where I ‘suspended’ my own agenda (or at least tried to!) in the first instance, and instead of going straight to a checklist of the regulation as I arrived at a site, I first encouraged thinking, imagination and exploration of ideas by all those involved. I then reviewed those ideas against regulation. By first encouraging others to imagine and brainstorm, we support them to critically think. If our approach is to review against regulation, do we instead support ‘tick and flick’ safety?

· How can we create space in our lives for imagination and creativity? When our focus is solely on regulation, on compliance, efficiency and binary thinking, how can we really have space or time to create and lead?

· Should we consider the things that can seduce us into thinking ‘regulation first’? Perhaps we need to be more aware of when we may be seduced into thinking in a binary way, or where we may create ‘excess’ ourselves. When we get our head around the fact that things are rarely right/wrong or safe/unsafe, we open our mind to better understanding people and why we do what we do. This may be a slower approach (i.e. no efficient) and it may be frustrating (as black and white is easier than grey) but it does help us to better understand what it means to be human.

In finishing this piece, I reflect that it I have at times found it hard to find the time to ‘open up’ and often are so pressured to ‘close down’. Often this is the situation because we are already ‘flooded’ with regulation and hence find ourselves trapped with little time for people. Being aware of this tension is in my mind, the starting point rather than a ‘solution’. When we understand that life is not perfect, this is not a call for perfection but rather a call for greater understanding and resilyence.

I’m left wondering, is our society addicted to regulation? Are we more concerned with efficiency than understanding? Are there times where you feel there is excess regulation in your life? If regulation is your tool of choice in dealing with risk and safety, what does this mean for how you encourage others to discern risk?

If you’d like to talk through this paper or even have me present it in your organisation or community, send me a note to: contact@dolphyn.com.au and we can start a conversation.

As usual, I’d love to hear your thoughts, experiences and comments.

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