The Legitimacy and Responsiveness of Industry Rule-making

Description

Rule-making is no longer an activity undertaken exclusively by public actors. Private actors are increasingly allowed by legislatures and regulatory bodies to take part in (and in some cases assume responsibility for) the formation of legally binding rules, for example in the US, UK, Australia and the EU. Departing from traditional forms of rule-making by involving private actors may enhance the ability of regulatory systems to achieve social goals, as regulatory scholars argue. However, because private actors are permitted to act in their own best interests, their involvement also raises doubts about the legitimacy of the underlying rule-making processes and the rules that are formulated. The principal aim of this book is to highlight that the tension between the responsiveness that leading international regulatory scholars advocate in order to improve regulatory effectiveness, and the law and its formal, substantive, procedural and institutional values, is not as great as may first appear. Drawing on three in-depth case studies of the experience of the Australian telecommunications industry with self-regulatory rule-making—a form of rule-making that bears the hallmarks of ‘responsive regulation’, ‘democratic experimentalism’, ‘smart regulation’ and other strategies of proceduralization—it is argued that industry rule-making can, as a matter of practice, be responsive and legitimate at the same time. In doing so, the book formulates and applies criteria against which industry rule-making should be evaluated and identifies a number of indicia that point to when industry rule-making is likely to be simultaneously legitimate and responsive. Acknowledgements Table of Contents Glossary and Table of Abbreviations Table of Cases Table of Primary and Secondary Legislation, and Bills 1. Introduction I. Approach and Scope of Book II. Terminology III. Structure of the Book Part I: Background to Case Studies 2. The Adoption of Part 6 of the Telecommunications Act 1997 (Cth) I. Introduction II. Background Information III. The Regulatory Design of Part 6 IV. Conclusion 3. The Challenges of Industry Rule-making I. Introduction II. The Rule-making Framework of the Communications Alliance III. The Procedural and Institutional Legitimacy of Traditional Rule-making IV. The Difficulties and Threats Posed by Industry Rule-making V. Conclusion Part II: Empirical Study of Part 6 Rule-making 4. The Conceptual Approach and Institutional Context I. Introduction II. Conceptual Approach III. The Institutional Context 5. The Consumer Contracts Code I. Working Committee Composition and Context II. Power III. Roles IV. Strategy V. Dispute Resolution VI. Conclusion 6. The Information on Accessibility Features for Telephone Equipment Code I. Working Committee Composition and Context II. Power III. Roles IV. Strategy V. Dispute Resolution VI. Conclusion 7. The Mobile Premium Services Code I. Working Committee Composition and Context II. Power III. Roles IV. Strategy V. Dispute Resolution VI. Conclusion Part III: Substantive Analysis of Case Studies 8. The Procedural and Institutional Legitimacy of Part 6 Rule-making I. Introduction II. The Politic of Part 6 Rule-making III. The Procedural and Institutional Legitimacy of Part 6 Rule-making IV. Conclusion 9. The Responsiveness of Part 6 Rule-making I. Introduction II. Defining Responsiveness III. The Responsiveness of Part 6 Rule-making IV. Conclusion 10. Activating and Sustaining Legitimate and Responsive Industry Rule-making: The State of Play I. Introduction II. The Indicia of Legitimate and Responsive Rule-making III. Matters Requiring Further Empirical Investigation IV. Conclusion 11. Conclusion Appendix: Methodology I. Choice of Methodology II. Selection of the Three Codes for In-depth Study III. Identifying and Locating Interview Participants IV. Conduct of Interviews V. The Limitations of the Research Select Bibliography Index