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The Legitimacy and Responsiveness of Industry Rule-making


ISBN13: 9781509943821
Published: December 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2018)
Price: £36.99
Hardback edition , ISBN13 9781509918096



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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.

Subjects:
Constitutional and Administrative Law
Contents:
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