Download files
Abstract
This thesis considers one of the most legally controversial tools in the expanded regulatory ‘tool kit’: industry rule-making. The principal aim is to highlight that the tension between the ‘responsiveness’ that regulatory scholars advocate in order to improve regulatory effectiveness, on the one hand, and the law and its formal, substantive, procedural and institutional values, on the other, is not as great as either camp asserts. The research is directed at lawyers, some of the harshest critics of proceduralized rule-making, who believe that the coherence of law is being sacrificed in the quest for enhanced regulatory effectiveness. Drawing on three in-depth case studies of the experience of the Australian telecommunications industry with self-regulatory rule-making in accordance with Part 6 of the Telecommunications Act 1997 (Cth), it is argued that industry rule-making, which is both responsive and effective in achieving public policy goals, can accord with the values that confer legitimacy in‘traditional’ legislative and administrative rule-making contexts. The rules drafted by industry can be incorporated into the existing system of law without undermining its coherence. The thesis is also directed at regulatory scholars who argue (implicitly if not explicitly) that the need to maintain a coherent system of law should give way to the exigencies of responsiveness and effectiveness. It is argued that, rather than hindering the drive for responsiveness and effectiveness they seek, the principles supporting legal legitimacy can best be seen as regulatory tools that are central to the achievement of both of these objectives and are important in their own right if recourse to the formalised mechanisms of state and administrative law-making is to be avoided.