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  • Writer's pictureSam Wilks

Criminalising the Regulated: The Rise of Regulatory Infractions as Crimes

In an era where regulatory frameworks increasingly intersect with the criminal justice system, a phenomenon is emerging: the criminalisation of regulatory infractions. This trend, particularly pronounced in advanced economies like Australia, signals a shift in societal and governmental approaches to regulation and compliance. But what are the implications of this shift, and how does it reflect the underlying philosophies and economic theories that guide our understanding of law, order, and societal norms?

Without reminding the reader of the historical context of such ideological changes or the foreseeable results, at the heart of this discussion lies a philosophical conundrum: balancing individual freedoms with societal safety and order. This balance is increasingly tipping towards stringent regulation. The idea is not new; it has roots in the classic debates between liberty and security, individual rights, and collective good. However, the modern context adds complexity, as regulatory breaches, once considered mere administrative oversights, are now being elevated to criminal offences. Worse, the evidence of a two-tier legal system is obvious, as bureaucrats, NGOs, and aboriginal organisations avoid accountability for the same infractions in complete contracts with private citizens and privately owned businesses.

The economic implications are significant. Economists have long argued that over-regulation stifles innovation and economic growth. This argument finds resonance in the current climate, where businesses and individuals find themselves navigating a labyrinth of regulations. In Australia, for instance, sectors such as housing, finance, healthcare, and environmental protection have seen a surge in regulatory measures, often with criminal penalties attached for non-compliance. Yet, those bureaucrats involved in private/government partnerships that have left victimised citizens with un-livable homes all around Australia and large mortgage payments seem to avoid any scrutiny.

The psychological impact of this trend cannot be understated. When regulatory infractions are criminalised, it changes the societal perception of the 'offender.' This shift is not just legal but also moral. Individuals and businesses are no longer just non-compliant; they are criminalised, often for actions that were previously considered administrative faults. This transformation has profound effects on societal norms and individual psychology, influencing how people view authority, compliance, and their role within the larger societal framework.

In Australia, this shift is evident in the public discourse around certain regulatory breaches. Take, for instance, environmental regulations. In recent years, cases where businesses have been penalised for regulatory breaches have not just faced legal consequences but have also been subjected to intense public scrutiny and moral judgement. This scenario reflects a broader trend where regulatory compliance is no longer just a matter of following rules; it's a measure of ethical conduct.

Consider the case of Australian financial regulations after the 2008 global financial crisis. The tightening of financial regulations and the imposition of stricter penalties for non-compliance are a direct response to the crisis. While these measures are designed to protect consumers and ensure the stability of the financial system, they also represent a significant shift. Financial institutions are now under constant scrutiny, and any breach of regulation can quickly escalate into a criminal matter. This approach, while arguably necessary for safeguarding economic stability, also raises questions about the balance between effective regulation and the preservation of a free, competitive market.

The effect is most profound and obvious in smaller locations like the Northern Territory, where it has resulted in drops of 50+% in property transfers per month since 2009 and no obvious signs of recovery. Monthly transfer numbers in 2022 were still 32+% lower than what they were in 2003.

Similarly, in the field of environmental protection, Australia has seen a notable increase in the criminalisation of regulatory breaches. Companies found in violation of environmental laws are not only facing hefty fines but also criminal charges. This approach reflects a societal shift towards greater environmental consciousness, but it also illustrates the increasing overlap between regulatory frameworks and the criminal justice system. The implications are far-reaching, impacting business operations, public perceptions, and the very nature of environmental stewardship.

The Australian experience provides a compelling case study of how the criminalisation of regulatory infractions manifests in a real-world setting. This trend is particularly evident in sectors where public safety and welfare are paramount, such as housing, healthcare and environmental management.

In healthcare, for example, the enforcement of regulations has taken on a new intensity. Regulatory breaches, particularly in areas such as patient privacy, medical record-keeping, and pharmaceutical regulations, are increasingly being viewed through a criminal lens except for their COVID responses. This shift aims to ensure the highest standards of patient care and data security, but it also places an enormous burden on healthcare providers. They must navigate an intricate web of regulations, where a misstep can lead to criminal liability. However, again, the massive disparity between bureaucratic health services and private health services is on display. Of the massive amounts of iatrogenic deaths recorded in Australia, less than 5% are related to private practises, another example of a two-tier legal system.

Environmental regulation in Australia offers another insightful example. With the country facing significant environmental challenges, including climate change and biodiversity loss, the government has ramped up efforts to enforce environmental laws. Instances of pollution, illegal land clearing, and wildlife protection violations, previously handled as civil matters, are now often treated as criminal offences. This approach reflects a growing societal consensus on the importance of environmental stewardship, but it also raises questions about the balance between environmental protection and economic development. However, as we have observed in the Northern Territory, those companies with direct financial links to the Party in Power and who are major contributors to the funding of both major parties escape liability for habitat destruction and land clearing on large scales.

The blurring of lines between administrative non-compliance and criminal conduct has led to a sense of overreach. In the pursuit of stringent enforcement, they have created an atmosphere of fear and uncertainty. Businesses and individuals have become overly cautious, hindering innovation, opportunity, and economic activity. Moreover, the allocation of law enforcement resources to regulatory breaches when Australia has a shortage of personnel diverts attention from more serious criminal activities.

Navigating this complex landscape requires a common-sense approach. While the enforcement of regulations is crucial for public safety and welfare, it is equally important to ensure that this enforcement does not stifle innovation or lead to undue hardship. The economic evidence alone shows that policymakers have quite obviously created regulatory frameworks that are both ineffective and unfair.

In Australia, there is a redundancy of many regulations in critical areas like housing, finance, and environmental protection, or reforms to ensure that these regulations are clear, reasonable, and proportionate. The promotion by the government of providing adequate resources for businesses and individuals to understand and comply with these regulations, thereby reducing the likelihood of unintentional breaches, through the job creation of yet more parasitic departments, is abhorrent, unethical, and economic vandalism.

The rise of regulatory infractions as crimes is a simple phenomenon. In Australia, as in many other parts of the world, this trend reflects changing societal values and priorities towards social justice and authoritarianism, not freedom or autonomy. It poses challenges where regulations are truly needed and requires a careful balancing act between regulation and freedom, innovation and compliance, and legal enforcement and ethical judgement. Navigating this terrain will be one of the key challenges for policymakers, businesses, and individuals in the years to come. However, the greatest way to vote is with one's feet and money. In the Northern Territory, due to incompetent policies and over-regulation, it is a welfare state, being subsidised by the goodwill of others, while it continues to burden its citizens with ever more expansive forms of criminalisation. From the author.

The opinions and statements are those of Sam Wilks and do not necessarily represent whom Sam Consults or contracts to. Sam Wilks is a skilled and experienced Security Consultant with almost 3 decades of expertise in the fields of Real estate, Security, and the hospitality/gaming industry. His knowledge and practical experience have made him a valuable asset to many organizations looking to enhance their security measures and provide a safe and secure environment for their clients and staff.

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