The value of principle over prescription

As a child, I visited the ski fields of New South Wales but once. So, you would think that my most enduring memory of that vacation would be of snow. But it is not. Rather, I remember a lamb chop—or, more particularly, the circumstances giving rise to a BBQ in a bushland clearing somewhere out of Cooma.

The chop had been purchased from a local butcher who sold his fare from an old-fashioned shop. The butcher operated from within an area enclosed by fly screen and served his customers through a sliding hatch. Inside, activity centred on a large wooden block set on a floor strewn with sawdust producing the earthy scent of freshly sawn timber. Having purchased our chops, we drove on into the country where we found a picnic spot somewhere off the road. In a family ritual, we older children were sent off to gather twigs for kindling and sticks for a fire used to cook our chops on a grill set on rocks surrounding the small fire. Having eaten, we made safe the fire and returned the area to how we had found it before ascending to the snow line.

Sadly, the experiences I describe have been almost regulated out of existence. Butchers can no longer dress their floors with sawdust. Travellers may no longer set small fires to cook their lunch in bushland settings but must find a ‘permanently constructed fireplace at a site surrounded by ground that is cleared of all combustible materials for a distance of at least two metres all around’. The rules preventing such things have been introduced for perfectly good reasons: to promote safe eating and to prevent bushfires. But was it really necessary to impose such uniform rules (e.g. hard surfaces for all butchers)? Or might we have done better to specify some general principles (e.g. around health and safety) and leave butchers and travellers to make responsible decisions about how best to meet their obligations?

There was a time when Australians were more willing to accept risk in return for a larger measure of freedom.

I should clarify two likely points of contention. First, I am not opposed to rules and regulations per se. Comprehensive and consistent regulation makes good sense in some areas of life (aviation standards come to mind). Second, I am not merely pining for a lost golden age of my youth. Life (and society) moves on. Rather, my concern is a deeper one—that Australia and Australians are becoming an overly compliant people and that our archetypal self (the knockabout and resourceful larrikin questioning of authority) now exists only in our rhetoric.

I recently discussed this issue with former Liberal minister, Amanda Vanstone. For the sake of lively conversation, she proposed a radical pruning of the regulatory thicket with all regulation being suspended unless proven to be both necessary and effective. Most proposals for reform are cautious and incremental, aiming only to remove the dead wood. The Vanstone proposal was to replace the whole tree. But what might be planted in its place?

I proposed three general principles that, in my opinion, do the work of most regulations:

1. That no person may intentionally or recklessly cause harm to another
2. That no person may expose another to harm without their free, prior, and informed consent
3. That no person may engage in unconscionable conduct to the detriment of another.

Although Ms Vanstone inclines towards the lawyer’s typical suspicion of broad principle (perhaps concerned about the relative lack of certainty and the attendant scope for judicial activism), she agrees that principles like these would fill the vacuum caused by a serious reduction in regulatory burden.

But then it occurred to us that our entire conversation might have been based on a false assumption: that Australians actually want less regulation. But what if they don’t?

I still recall Peter Costello’s comment, when Federal Treasurer, that business leaders would often demand of him—in one breath—less regulation and more certainty about where ‘the line is drawn’. He could meet one of their demands, but not both. So, what did these leaders really want? They wanted certainty, which led them to prefer regulation. And the wider community? Would it have a greater appetite for the exercise of personal judgement and responsibility? Would it opt for principle over prescription? These are the central questions.

There was a time when Australians were more willing to accept risk in return for a larger measure of freedom. No doubt there were mishaps, but perhaps not as many as some would fear. For the most part, the sawdust on the floor of butchers’ shops was regularly replaced when soiled, and the diligent merchant produced an environment no less hygienic than found amongst the hard surfaces mandated by today’s regulators. Bush fires are a scourge but few are the product of camp fires left unattended or carelessly set. According to the Australian Bureau of Statistics, natural causes (such as lightning strikes) are the most prevalent. And to the extent that humans cause fires, the real menace lies in the acts of arsonists rather than the accidents of errant campers.

The proposal to do away with the majority of regulation may be unrealistic. However, the guiding sentiment is well-founded. Our world is largely populated by decent people. They are capable of developing a variety of innovative solutions to day-to-day challenges. Life loses some of its magic when creativity is constrained by a one-size-fits-all approach to managing risk.

Would it really be so bad if we were to trust ourselves and each other a little more?