Meta-Regulation in Practice

Dr F. C. Simon is a regulatory policy practitioner, having worked in both regulatory and regulated organisations.

• Preface List of Abbreviations 1 INTRODUCTION The machinery of meta-regulation Luhmann’s systems theory The Australian retail energy industry The structure of this book References 2 THE IMPLICIT ASSUMPTIONS UNDERPINNING NORMATIVE META-REGULATORY THEORY Consensus on values and the public interest The government is a silent enabler of the public interest The regulator’s values and actions represent the public interest Third party advocates and activists represent the public interest The private corporate interest can be aligned with the public interest Organisational rationality and capacity for learning Conclusion References 3 CREATING THE WORLD’S MOST COMPETITIVE RETAIL ENERGY MARKET The early policy vacuum in Victoria The industry and regulatory response to the policy environment The development of the Retail Code Retailer participation in the consultation Consumer advocate participation in the consultation How the ESC managed the issues Government intervention in pricing The political need to regulate energy prices in 2001 The paradox of regulating prices low in a competitive market Conclusion References 4 THE NEXT THIRTEEN YEARS: COMPLEXITY, POLITICS AND CHANGE Overview of the markets: 2003–2015 Compliance outcomes Performance outcomes The industry experience Protecting vulnerable consumers The definitional problem Stakeholder moral perspectives Disconnection case studies and consultations Contingency and unpredictable outcomes The rise and fall (and rise) of the National Energy Customer Framework The Victorian smart meter debacle When the Queensland Premier went to war with Origin Energy Inside the industry The basis for action: commercial drivers and the bottom line Managing through risk frameworks The instability of the corporate environment Conclusion References 5 CONTESTING COMPLIANCE IN ‘HARDSHIP’ REGULATION The genesis of the Victorian hardship provisions Legislative changes in 2004 The Utility Debt Spiral Project: a collaborative model The Victorian Hardship Inquiry Drawing out the conflict on roles in energy bill management Consumer advocate positions Retailer positions Policy responses and the appearance of action Conflicts between the ESC and EWOV and wrongful disconnection referrals *The implications for compliance and performance Reactions to formal and informal performance reporting Consumer advocate naming and shaming Regulatory focus on performance The creation of retailer hardship programmes A surprising turn of events: the ESC proposal to abolish hardship programmes Conclusion References 6 CONFLICTING VIEWS OF MARKET COMPETITION Economic assessments of competition Complicating factors in identifying effective competition Behavioural economics and ‘rational’ consumer choice The door-to-door sales channel driving churn rates The quality of competition and unresolved issues about policy expectations Political views of market effectiveness How Victoria deregulated prices Drivers for deregulation in the other states When the market became the safety net The AEMC’s consumer engagement blueprint Co-regulation, self-regulation and external enforcement of door-to-door sales Self-regulation under Energy Assured Limited Regulatory enforcement and further retailer self-regulation Conclusion References 7 RETHINKING META-REGULATION The political need to ‘do something’ Risk perceptions were amplified under meta-regulation Political behaviour from the regulators was amplified under meta-regulation Harnessing the market? The reputation mechanism was highly unreliable Retailer learning was heavily constrained The role of the law Assessing the effectiveness of meta-regulation in the Australian energy markets Meta-regulatory outcomes A comparison with command and control regulation A different perspective on meta-regulation Some final thoughts References

[T]his is a sparkling book with brilliant case study material. It should enliven debate about what has perhaps become a slightly tired orthodoxy about regulatory policy and may well be destined to become a classic.Christopher Hood, Australian Journal of Public AdministrationBased on extensive analysis and deep insider knowledge of the Australian retail energy sector, F.C. Simon builds a powerful and fascinating critique of meta-regulation theory and its practical manifestation. Simon shows how complexity and contested views of compliance and market competition, challenge key tenets of meta-regulatory thinking, not least capacities for learning and for responsiveness to reputational risk. Meta-Regulation in Practice will be of considerable interest to scholars, policy makers and managers in the energy sector and beyond.Michael Power, London School of Economics and Political Science, UKDon’t be put off by the title – you don’t need to be a sociologist to enjoy Fiona Simon’s highly engaging, insightful and perceptive account of retail energy regulation in Australia. Meta-Regulation in Practice explores alternative views of what regulation should achieve, and shows how policy evolved in response to the various different pressures. It calls out for an equally stimulating and informed account of UK and other experience, and for the (re)opening of diplomatic relationships between economic and sociological concepts of regulation. This is a superb book and a welcome addition to the literature.Stephen Littlechild, Emeritus Professor, University of Birmingham, and Fellow, Judge Business School, University of Cambridge UK; former UK electricity regulator (1989-98)This is a very perceptive book, offering an original perspective on regulation, illustrated with an information-packed analysis of a major regulated market – the retail energy market in Australia.Martin Cave, Visiting Professor, Imperial College Business School, UKMeta-Regulation in Practice is an excellent case study on the attempt to morally and politically steer the Australian retail energy sector. F.C. Simon shows how such regulation efforts may only result in a growing hiatus between the public self-description of an industry and its actual functioning. Its intricate systems-theoretical reflections connect this book with cutting-edge contemporary social theory far beyond its immediate area.Hans-Georg Moeller, Professor and Subject Convenor, Philosophy and Religious Studies Program, University of Macau, ChinaF.C. Simon provides a unique and original perspective on the practice of regulatory organizations and in doing so rejects the enthusiastic claims and uncritical accounts of many academic commentators. She takes as her starting point the contradictions and self-deceptions under which these organizations operate. In the footsteps of Niklas Luhmann, whose systems theory inspired her analysis, she skilfully exposes their taken-for-granted world as an illusion. At the same time she recognizes fully the complexity of the task facing regulation in its attempt to reconcile the demands of politics, law and economics and produce a coherent account of its activities. This is a ground-breaking book which deserves to be widely read.Michael King, Professor Emeritus, University of Reading, UKYour reviewer can do no better than advise the readers of this journal interested in energy regulation or regulation generally to read Simon’s case study. It is amongst the most incisive, sobering and salutary accounts of the actual results of intervention known to your reviewer, who has been reading these things for more than thirty years. Simon’s contribution to the problematisation of the public interest in regulation is important.David Campbell, Journal of Law and SocietyMeta-Regulation in Practice is a very good book which unusually coherently combines theoretical reflection with a real-world story. It will be of interest to students of regulatory theory and those who are specifically interested in energy regulation. Cosmo Graham, LSE Review of Books[This book] is essential reading for those of us who have in the past emphasized the need for regulation of any kind to be open and responsive; the author does us a great service in encouraging us to see the limits of communication and discourse.Tony Prosser, GovernanceThis book is a meticulously researched analysis of the issues that flow from reliance on co-regulation or self-regulation. It particularly identifies the problems created when the expectations of policy makers do not align with the capacity or strategy of the regulated. In doing so, it also highlights the potentially uncomfortable alignment (or otherwise) between policy makers and regulators.Rob Nicholls, Australian Business Law ReviewIt’s unlikely that anyone other than Simon could have written this book...The combination of Simon’s theoretical grounding and deep professional expertise makes this book a rigorous and incisive critique of meta-regulation, while her crisp style and personal insights make it highly readable, including to a non-academic readership.Kieran Donoghue, Energy Research and Social ScienceThis is a fascinating book on a topic of increasing debate and relevance. Patricia Leighton, Journal of Management and OrganizationThis work is timely and fills an important gap in the scholarly literature.Brooke Lahneman, Journal of Management and GovernanceSimon’s important work has much to tell us about the variety of ways that regulatory instruments can be integrated into a welfare regime under conditions of marketization and how this reshapes the nature and processes of legal and political accountability.Sangeetha Chandrashekeran, Law and Society ReviewWe might expect a text on the regulation of energy retail to be a bit dry, but there is high drama, with characters of varied disposition and clashing ideology; there is good and evil and a confusion of these befitting a good story — even one that tells the truth.Jesse Cunningham, Sydney Law ReviewMeta-Regulation in Practice can be read as using a theory of how the world is – i.e., systems theory – to critique a theory of how the world should be, i.e., meta-regulatory theory. In that, it is successful. Readers will find lots to engage with beyond these particular theories, though, as the book taps into broader conceptual challenges across the study of politics, policy, and related fields. How can we measure policy effectiveness? How can we account for contingency in policy-making decisions? What does it mean for actors to act ‘rationally’? How can we conceptualize the public interest? Simon addresses such questions directly, and challenges the assumptions through which they are sometimes resolved. Gabriel Menard, Canadian Journal of SociologySimon is to be commended for the methodological approach used in this research. Delineating unstated and untested assumptions in normative meta- regulatory theory and using a detailed case study to test these assumptions is exemplary practice.Stephen M. Mitchell, Administrative Science QuarterlyMeta-Regulation in Practice serves as a cautionary tale about the difficulties involved in successfully implementing meta-regulatory reforms in contested and complex policy environments. It deserves to be widely read by students of regulatory policy and politics.Neal D. Woods, Journal of Public Administration Research and Theory