Understanding influences on participation in administrative rulemaking: decisions on the content of the Australian building code
Creators: name: Burgess, Mark
Publisher: name: RMIT University
Year: 2024
Subjects: classificationCode: 330402
subject: History and theory of the built environment (excl. architecture)
classificationCode: 440801
subject: Australian government and politics
classificationCode: 441001
subject: Applied sociology, program evaluation and social impact assessment

description: Government regulation affects the daily lives of all Australians. In setting regulation, governments aspire to balance the expectations of society with expert information to arrive at outcomes which deliver a net benefit to the community.<br><br>Croley’s (2008) administrative process theory states that the delivery of regulation in the public interest is conditional on government agencies actively encouraging broad interests to participate in the regulatory setting process. Participation can provide democratic legitimacy to a process where regulation is set by non-elected officials in executive government, and provide those officials access to information which represents societal expectations and expert views. The aim of this research is to evaluate the influence of administrative processes on participation across all stages of rulemaking by an Australian government agency. An inductive research methodology is applied to evaluate the processes implemented by the Australian Building Codes Board to establish whether they encourage participation by those who are ‘best suited to shape the regulatory outcomes’.<br><br>Although the administrative processes of this government agency provide opportunities for open participation, they do not result in actual participation. Outside of those parties specifically included or mandated by current procedures there appears to be an absence of involvement by independent participants. This observation indicates that administrative processes which simply allow open participation when setting regulation may not satisfy Croley’s (2008) condition to encourage participation by broad interests. This research finds that that there may be both direct and indirect influences on the actual level of participation in practice.<br><br>The formal rules and processes of the administrative agency may exclude, allow or mandate participation, and thereby directly influence the potential level of participation. Where participation is permitted but not mandated, actual levels of participation may be indirectly influenced by the actions and language of the administrative agency. These indirect influences may not affect all participants equally, potentially impacting the balance between the types of participants active in the regulatory process and therefore altering the kind of information available to decision makers in government agencies.<br><br>Empirical analysis of the administrative processes used to set the Australian building code over four years finds participant expertise may represent one example of indirect influence. Multiple opportunities to participate in the process are open to anyone, but these opportunities are largely taken up by those expert in building technology or regulation. Research findings indicate this imbalance may be caused by an implied necessity for domain expertise dissuading participation by those who are not expert in building technology. Although expert participants may be suited to deliver technically sound regulatory outcomes, they may not be able to provide the Australian Building Codes Board with information representing broad societal expectations of the built environment.<br><br>This thesis has implications for regulatory theory and its application. Its theoretical contribution combines Yackee’s (2014) information capacity model with Croley’s (2008) administrative process theory, introducing participant expertise as an influence which may moderate the level to which the direct rules and processes of the government agency encourage participation. This contribution is developed into a participatory model which is then applied to evaluate the processes of the Australian Building Codes Board against its stated objectives. The findings are framed to suggest changes to current building code practices and may assist regulatory practitioners in other domains when developing future administrative processes.