OVERLAP kills any functional benefit to doing both.

Regulatory failure caused by overlapping regulations is ubiquitous, with examples in all jurisdictions across a range of disciplines. Overlapping regulation can be problematic. It obscures policy objectives and hinders the development of effective and clear regulation. In addition, regulatory overlap can inflict real costs on businesses through repetitive inspections and data collection efforts. It is particularly burdensome when agencies issue conflicting rules with inconsistent standards. Recognizing that regulatory overlap exists and is a problem provides the context to this program of research. Our research project was an exploration using a systematic quantitative literature review (SQLR) method to better understand the way regulatory failure, caused by overlapping regulations, has featured in academic literature. The SQLR method was chosen as it employs a systematic process to consolidate a sample of literature, and quantitative measures to draw connections between different academic sources. Ultimately, our research concluded that the literature does not provide clear prescriptive principles for reducing unnecessary regulatory overlap. This begs a question as to whether more research is needed in this area, or alternatively whether the complexities raised by regulatory overlap are not reducible to general principles.

1 Introduction

Regulation is generally perceived as a measure for achieving desired policy objectives (Pimenova, 2016). However, some commentators suggest that regulation must be well designed, with the principles of responsive regulation and other theories as a foundation (Black & Baldwin, 2010; Baldwin & Black, 2007, p. 48; Grabosky, 2013). Theories on regulation have been developed through its own body of literature over the last decades, with scholars dedicating their research interests to the best design of regulation in many contexts. This research has informed law and policy development, although there is little evidence that outcomes have improved as a result. Although there are potentially many areas of interest, this paper focuses on just one aspect of regulatory scholarship, regulatory overlap.

Overlapping regulation can be problematic. It obscures policy objectives and hinders the development of effective and clear regulation. In addition, regulatory overlap can inflict real costs on businesses through repetitive inspections and data collection efforts. It can be particularly burdensome when agencies issue conflicting rules with inconsistent standards. Unfortunately, commentators use heterogenous language when evaluating overlapping regulation, which means it is difficult to analyze or even locate relevant literature that addresses regulatory overlap meaningfully. This further indicates that it is a band of knowledge without a large number of dedicated scholars. However, this research demonstrates that there is a distinct body of literature that addresses issues of overlapping regulation, but it is not unified in either methodology or terminology. There are some exceptions to this observation, such as engagement with the subsidiarity principle and other aspects of federalism governance (Deem, 2021; Pimenova, 2016; Vogel, 2022).

This research was commissioned by the Commonwealth of Australia, Department of Prime Minister and Cabinet in order to understand the scope of the existing literature. We hypothesized that the literature would be diverse and explore both the practical and theoretical reduction of regulatory overlap where regulatory overlap has been deemed inefficient. Hence, the purpose of this paper is to evaluate a sample of academic scholarship using a systematic quantitative literature review (SQLR) method to determine if there is a body of literature that demonstrates principles or solutions for addressing regulatory overlap. The SQLR method was chosen as it employs a systematic process to consolidate a sample of literature, and quantitative measures to draw connections between different academic sources. Importantly, the method generally uses statistical results to create a narrative in response to predetermined research questions. This method therefore allows researchers to draw conclusions independently and objectively, which is paramount in any commissioned research project.

This research was designed to determine if there were existing academic commentaries that support the development of principles for effective governance arrangements and reducing regulatory overlap where problems exist. Ultimately, our research concluded that the literature does not provide clear prescriptive principles for reducing unnecessary regulatory overlap. This begs a question as to whether more research is needed in this area, or alternatively whether the complexities raised by regulatory overlap are not reducible to general principles. This paper is presented in six sections. In Section 2, we briefly identify the problem of regulatory failure caused by overlapping regulation. In Section 3, we describe the purpose of the research and the rationale for the selection of the SQLR research method. In Section 4, we describe the results in detail alongside data observations. In Section 5, our discussion highlights the heterogeneity within the literature and explains why the lack of uniformity makes it difficult to identify patterns and principles that aim to address regulatory overlap. In Section 6, we conclude. Ultimately, our SQLR did not find clear principles in the literature for reducing unnecessary regulatory overlap, instead a method for addressing the overlap emerged through the results.

2 The problem

Regulatory failure can result from any number of causes. Failure is generally identified when regulation does not achieve its purpose, or when the costs of regulation are greater than its benefits (Aldridge, 2022; Wolf, 1979). Poor designs, unpopular rules, and power imbalances between regulated entities and regulators can impose costs and externalities that outweigh any gains achieved. Regulatory failure caused by overlapping regulations is ubiquitous, with examples in all jurisdictions across a range of disciplines. Identifying that regulatory overlap can lead to failure means it has been identified as problematic. Indeed, some literature suggests that overlap can obscure policy objectives and hinder the development of effective and clear regulation. In addition, observations indicate that regulatory overlap can inflict real costs on businesses through repetitive inspections and data collection efforts. As Staples et al. identify:

… jurisdictional overlap is especially important in nascent industries and in small businesses where entrepreneurs must spend significant cognitive capacity on understanding regulations rather than growing their firms. (Staples et al., 2022)

Despite this, at times overlap (incorporating inconsistency and duplication of regulatory requirements) has been deemed to be deliberate and provide benefits, but often it is unintentional. Scholars argue that regulators are most commonly subject matter experts, sometimes lacking an understanding of the broader legal landscape that rules are enacted within (Dudley & Xie, 2022, p. 261). The literature suggests that development in subject matter silos could in part be the cause of some overlap, leading to inefficient rules. Recognizing that regulatory overlap exists and can be a problem provides the context to this program of research. Our research project was an exploration to better understand the way commentators have responded to overlapping regulations in academic literature. The predominant purpose was to discover whether the literature identified any commonly accepted principles or solutions that may assist policy makers and academics to evaluate (and where necessary correct) overlap, when it causes a form of regulatory failure.