Regulatory Regimes and Organised Crime: Report (html)

5. Assessing the existing regulatory regime

Introduction to Part Two

5.1 Based on its consultations, the Commission has identified four key strategies for reducing the risk of organised crime infiltration of lawful occupations and industries:

• assessing the existing regulatory regime and identifying and removing any barriers to the use of existing regulatory measures

• restricting entry into an occupation or industry through a licensing scheme

• regulating post-entry behaviour in an occupation or industry

• addressing the use of professional facilitators.

5.2 Each of these strategies is discussed in Chapters 5–8.

Assessing the existing regulatory regime

5.3 If an ongoing risk of organised crime infiltration has been identified, policy makers should evaluate any existing regulatory regime to determine whether it is sufficient to address that risk. This accords with good policy-making practice. The Victorian Guide to Regulation notes that a regulatory problem may potentially be addressed by increasing the enforcement of existing legislative provisions, extending the coverage of existing provisions, or removing legislative impediments to the use of existing provisions.^[1]

5.4 Several consultation participants similarly emphasised the need for policy makers to examine the utility of existing regulatory regimes before introducing new regulatory measures, and to address any barriers to the use of existing measures.^[2] Several such barriers were identified during the Commission’s consultations, which are discussed in further detail in Chapter 10. Regulators should be alert to these barriers and take steps to redress them, including the following:

• insufficient investigative expertise, which may require a regulator to work collaboratively with other, sufficiently skilled agencies to address organised crime infiltration^[3]

• confusion or disagreement among government agencies as to which agencies are responsible for the prevention of organised crime infiltration,^[4] which may require greater collaboration between regulatory and law enforcement agencies when identifying their respective objectives and responsibilities

• a lack of clarity about regulatory objectives, which may require amendment to the objectives of a regulator’s governing legislation and the creation of appropriate key performance indicators

• the existence of an organisational culture that does not sufficiently prioritise the prevention of organised crime infiltration, or a regulator not being sufficiently equipped to address that goal, which may require, for example, the employment or secondment of staff with law enforcement skills^[5]

• the existence of a risk-averse approach to enforcement action, which may require a regulator to reconsider its enforcement strategy (see [ ]–[ ]).^[6]

5.5 Aside from these legislative and organisational barriers to the use of existing regulatory measures, the Australian Crime Commission (ACC) remarked that it may be necessary to observe the sustained use of a particular infiltration methodology by organised crime groups before any regulatory gap can be identified.^[7]

1. Department of Treasury and Finance, Victorian Guide to Regulation (December 2014) 20.

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2. Submission 25 (Law Council of Australia); Consultations 3 (Roundtable 2), 11 (Victorian Automobile Chamber of Commerce).

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3. Consultation 4 (Roundtable 3); Submission 17 (Darryl Annett).

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4. Consultations 9 (Victoria Police), 4 (Roundtable 3).

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5. Consultations 9 (Victoria Police), 13 (Scottish Environment Protection Agency). See Gayle Howard, ‘World Wide Waste’ (2015) 3(1) Scottish Justice Matters 15.

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6. Tim Prenzler and Rick Sarre, ‘Smart Regulation for the Security Industry’ in Tim Prenzler (ed), Professional Practice in Crime Prevention and Security Management (Australian Academic Press, 2014) 175.

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7. Consultation 6 (Australian Crime Commission).

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