A theory-based description of Australian franchising regulation
This paper examines franchising regulation in Australia as a case study for the analysis of regulation based on established regulatory theory. A literature review is conducted to establish and critique the theory of regulation based on the four main areas of established theory; regulatory purpose, regulatory strategies, rulemaking and enforcement. Case study data is drawn from primary source material and academic commentary on franchising regulation and presented according to the eras of franchising regulation in Australia, moving from the first proposals for legislation in the 1970s to the prescribed mandatory Franchising Code of Conduct model adopted in 1998 and refinements made to that scheme up to 2006. An analysis is then conducted on each major aspect of Australian franchising regulation using the established theoretical principles and analytical constructs available in the literature. The study concludes that the Franchising Code of Conduct regime, as a culmination of the experience gained and study undertaken in the preceding eras, is characterised by the availability of a broad range of enforcement options from harsh deterrence-oriented measures to more gentle and cooperative compliance-oriented options constituting an effective regulatory pyramid. The effectiveness of the regime is further bolstered by the presence of a credible regulatory strategy pyramid which emphasises the real possibility of escalated intervention, coupled with skilful deployment by the Australian Competition and Consumer Commission as enforcement agency. The principal weakness of the scheme is identified as unnecessarily ambiguous drafting in some areas, which compromises the quality of the otherwise highly transparent ruleset. It is suggested that the choice of regulatory strategy, often a focus of superficial examinations of regulation, is largely irrelevant to the nature of the regulation, with other features such as enforcement strategy, legitimacy, and availability of credible sanctions proving much more important. A ...