The regulation of the supply of alcohol in New South Wales: a case of regulatory capture?

This PhD thesis by publications blends the law with public health research, regulatory and political theory to provide a transdisciplinary explication of the controversial regulation of the retail supply of alcohol in New South Wales (NSW) since the commencement of the current Liquor Act 2007 (NSW) in 2008. The critical research focuses on the alcohol industry’s apparently sustained capacity through political lobbying and other means to direct outcomes, including law-making, outlet approval and enforcement requirements, away from the public interest towards their profit and growth interests. This phenomenon is defined as regulatory or industry capture. It attaches multiple layers of detrimental public health, legal and governance consequences. Ineffective industry compliance laws and processes can render the best alcohol-related harm-reduction interventions useless. Significant original academic contributions are achieved by applying a legal phronetic methodology and the synthesis of a capture test. These methods include a micro-level critical analysis of the disproportionate power exercised by alcohol industry elites over the regulatory process. This thesis contributes to the development and application of new methods to better conceptualise regulatory leniency and chill processes. Three published articles and one submitted for publication, evidence the progressive intensification of capture from multiple perspectives of the regulatory chain. This evidence includes the promulgation of laws weakening the independence from government of the leading quasi-legal tribunal, the commodification of the ‘public interest’ into ‘customer convenience’ thereby reducing the objectivity of the outlet approval process, and the weakened effectiveness of an integrated industry legal compliance and enforcement regime. These NSW outcomes support the argument that regulatory capture by industry is a critical risk of profit-driven management of health, one at odds with the overall public interest. The concept of regulatory capture provides an important lens for explication of the inconsistency between public health research findings and government alcohol supply law ‘reforms’.