The COVID-19 and Rio Tinto lesson: regulation is not 'red tape', it's protection

John Howard responded to the attacks on America's twin towers with a raft of new laws that curtailed Australians' freedoms. Almost two decades later, in the midst of a global pandemic, Scott Morrison and Australia's premiers acted swiftly to put lives ahead of liberties.

The most significant government-imposed restrictions in our lifetime have been delivered to protect the health and wellbeing of Australians. These rules, which took away some of our most important liberties, have been introduced under a Liberal federal government.

Just as tax is the price we pay to live in a civilised society, laws and regulations provide guardrails to ensure the pursuit of individual liberties do not come at the expense of other people's health and freedoms. It is a fine line. Bad regulations are obviously bad. Good regulations are obviously good.

Appearing before the COVID-19 Senate committee last month, Reserve Bank governor Philip Lowe said that over the last 20 years Australia's practice of introducing regulation to address the problems in society had created a culture that limits "dynamism" in the economy. Stopping the "downside" has apparently limited our ability to "seize the upside". While Lowe stressed it is perfectly sensible to sometimes put in place new regulation, unfortunately the national debate on these issues often lacks the necessary nuance. We need less slogans and more subtlety in our debate about regulation.

Protecting people from harm, exploitation or deception need not temper economic dynamism. Are we restraining the animal spirits of polluters, con artists and cowboys? Whatever happened to earning an honest living? Most people's livelihoods depend on a clean natural environment, fair competition in the market and a safe workplace. It is all upside for them.

It makes no economic sense to dismiss regulation as something that should be removed for the sake of it. Whether it is UN rules to co-ordinate the flight of aircraft so they do not crash into each other or rules from the federal bureaucracy requiring pasteurisation of milk, regulation is not introduced for the sake of it. It is done to protect us.

That's not to say regulation is always good. When the ancestors of modern cars first hit the roads, UK laws required a person to walk in front of them waving a red flag to warn others of their presence. In the past, women's swimwear was monitored by police. And of course, until 2017, same-sex couples in Australia were unable to marry. Even today it is illegal for a woman in South Australia to have an abortion unless two doctors agree her health is endangered.

Some good laws became bad over time. Some laws were bad all along, and some good laws are yet to be legislated. We must be ever vigilant that we are introducing the laws our society now needs and removing the ones that have passed their use-by date, if they ever had one.

Far too often, important conversations about how our laws and regulations can best serve our community are obscured by those with a vested interest claiming that the nebulous bogeyman of "red tape" is constraining our economy.

And as for the argument that "green tape" - the derogatory term ideologues use to describe environmental protections - has gone too far, we need look no further than the devastating decision recently taken by mining company Rio Tinto to destroy a cultural site in Western Australia which contained artefacts recording more than 45 millennia of human history.

Juukan Gorge is a historical treasure on the land of the Puutu Kunti Kurrama and Pinikura peoples in Western Australia. A cave in the gorge was considered to be especially significant, as it showed continuous human habitation throughout the last ice age, stretching back more than 46,000 years.

The site was destroyed with explosives in late May so that Rio's multibillion-dollar Brockman 4 iron ore mine could be expanded. Disturbingly, this was done with ministerial consent and was entirely lawful. According to Rio Tinto themselves, the destruction of the site was "undertaken in accordance with all necessary approvals".

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According to The Guardian, since 2010 mining companies have sought to destroy or disturb at least 463 sites in Western Australia. Not a single one of those applications was refused and now, as a result of that wanton disregard for conservation, we have lost a heritage site that had been protected for tens of thousands of years by the traditional custodians of the land.

Following the destruction of 46,000-year-old Indigenous heritage sites, does anyone really think we need less laws, less "green-tape", to protect Indigenous culture and history in Australia?

Good people with good intentions will inevitably disagree on what makes for a good law. However the one-dimensional attack on government regulation distorts our public debate. Rather than debating "if" we need government rules, the debate has to be "where" and "what" and "how" to regulate.

There is no right number of regulations for a society. We need enough to make us and our environment safe and not so many that we lose our fundamental freedoms.

Like the Juukan Gorge disaster, COVID-19 has shown us that we need more regulation in some places. Does anyone now oppose new regulations for cruise ships? New laws to keep Australians from becoming homeless in the middle of this crisis are not unnecessary red tape, they are needed to save people's livelihoods. And nobody is suggesting celebrity chefs should be free to sell miracle cures for COVID-19 for thousands of dollars each.

Calling all regulation "red tape" or "green tape" is as childish as calling all tax theft. New problems require new solutions. Australia does not need less regulation or more regulation, it needs new regulations to protect us from new threats.

It is time to start thinking of the rules as protection, not red tape.