‘Red tape’ and ‘beige tape’: what are they and why do they matter?
3 June 2021
● News and media
This guest editorial was written for the ANZSOG/National Regulators Community of practice monthly newsletter, highlighting new additions to the Regulation Policy and Practice collection on APO. The RP&P collection brings together a range of practical resources from national, local and state/territory governments, regulatory agencies and external institutions conducting monitoring, inquiries and reviews. You can receive this newsletter by joining the ANZSOG/National Regulators Community of Practice (membership is free) or subscribe to the newsletter directly.
By Adam Beaumont
The need to cut ‘red tape’ and reduce the regulatory burden is a familiar call from business, business advocates and other duty holders, and a frequent subject of publications by regulators (see for example Red tape reduction | Australian Charities and Not-for-profits Commission or Red tape reduction | WA Government).
At the coal face, regulatory practitioners can easily find the emphasis on ‘red tape’ frustrating. The regulators’-eye view of the world naturally focuses on the public value of regulation, like preventing or fixing wrongs or harms, or changing individual, organisational and community behaviour for the good.
Unfortunately, notwithstanding the numerous gatekeeping mechanisms to ensure new regulations are fit for purpose, parsimonious and effective, the landscape of government remains littered with outmoded statutes, rules, licenses, standards and the like. Even the best-intentioned regulatory frameworks or interventions, if unreviewed over the longer term, can create an unnecessary burden – as this example from WA, discussed on a recent NRCoP webinar on licensing, amply illustrates.
What should be the role of the contemporary regulator in these circumstances? Is it our responsibility to be constantly assessing whether we still have a problem, and if so how to reduce it, rather than just focusing on administering our legislation and regulatory approach?
On 23 May 2021 an NRCoP webinar on Aotearoa-New Zealand’s approach to regulatory stewardship outlined the way their model actively encourages regulators to constantly undertake this assessment and ensure both their formal and informal regulatory systems remain fit for purpose. Even without this whole of government approach, the best Australian regulators do see it as part of their role and responsibility to keep revisiting the basis of risk or harm on which their regulatory strategy was founded.
What is beige tape?
If red tape is poor or dated legislation, rules or interventions leading to unnecessary burden or irrelevant outcomes, beige tape describes the same situation through ineffective regulatory implementation.
Unfortunately beige tape scenarios paint the regulator as the villain, undermining a good regulatory scheme by failing to understand, or act in a way designed to achieve, its regulatory outcomes. Beige tape is much harder to find and condemn than red tape, because, like many other beige objects, it doesn’t stand out. As a consultant, it is dispiriting to discover regulators working hard, and frequently reasonably well, and yet this is not necessarily translating to the outcomes which define their reason for being. It can be too easy, particularly with the passage of time, to lose sight of the problem and get lost in the ‘what’ and ‘how’ and forget the ‘why’.
On which colour tape should regulators focus?
We have already made great strides in eliminating red tape, both in removing outdated regulation but also in ensuring new regulatory schemes are fit for purpose.In my view, most regulators will get far greater bang for their buck if we focus on our own practices, particularly on the administering of laws or schemes whose purpose may no longer be known or have become unclear over time.
The starting point for regulators can be to ask ourselves an apparently very simple question: what is the problem we are trying to solve, whether with licensing, registrations or sanctions?
As Chris Webb, former Executive Director of Regulatory Practice and Strategy at EPA Victoria points out on a recent podcast with me:
“If you don’t really understand the purpose of a sanction, then you’re likely to just go and start using it all over the place to do things it was never designed to do. Sanctions should form part of your regulatory strategy and seek to reinforce the powers you have, the harms you care about, remind the good actors to keep being good and deter bad actors from breaking the law. But they’re never a magic solution to every problem.”
Responding to the regulatory experience of your duty holders
Regulatory reform or red tape reduction initiatives by governments frequently begin from the same horror stories brought to them by duty holders: having to enter the same information for five different regulators, report the same activity multiple times in different formats, or meet the requirements of one regulator in a way that impacts compliance with another.
Although sometimes fixing these experiences is beyond the mandate of a single regulator, in many cases they are really not red but beige tape – how the regulator applies the law, works with regulator peers, shares information, supports duty holders to comply or explains the requirement of the law. Good regulatory practice can, and should, get rid of this kind of beige tape, not least because it can undermine the importance and public value of regulation.
Conclusion
Regulation doesn’t have to be all red and beige tape. Bringing the regulator into the fold when drafting or reviewing laws and inviting them into the conversation without handing them the pen is more likely to achieve more effective regulation. A good regulator with a constant focus on the larger purpose and the regulatory experience, can be the difference between red tape and beige tape, or between beige tape and no tape.
Adam Beaumont, currently Director at With Purpose Consulting, was one of the founding members and the first chair of the Victorian Regulators Community of Practice, the precursor to the National Regulators Community of Practice.
He has more than 20 years’ experience in regulation, environment and sustainability issues, having held senior and executive roles in the EPA Victoria and the global Forest Stewardship Council. He now works with regulators all around Australia as a strategist, facilitator and consultant.