¹ On the absence of a uniform definition of self-regulation, see Julia, Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a “Post-Regulatory” World’ (2001) 54 Current Legal Problems 103, 114–22Google Scholar and ‘Constitutionalising Self-Regulation’ (1996) 59 The Modern Law Review 24CrossRefGoogle Scholar, 26–8. See also Colin, Scott, ‘Self-Regulation and the Meta-Regulatory State’ in Fabrizio, Cafaggi (ed), Reframing Self-Regulation in European Private Law (2006) 132–6Google Scholar; Anthony, Ogus, ‘Rethinking Self-Regulation’ (1995) 15 Oxford Journal of Legal Studies 97, 99–100Google Scholar; Wolfgang, Schulz and Thorsten, Held, Regulated Self-Regulation as a Form of Modern Government: An Analysis of Case Studies from Media and Telecommunications Law (2004) 7–8Google Scholar.

² Black, ‘Decentring Regulation', above n 1, 128.

³ Ibid 108. See also Christine, Parker, The Open Corporation: Effective Self-Regulation and Democracy (2002) 15Google Scholar.

⁴ See generally David, Osborne and Ted, Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (1992) 25–48Google Scholar.

⁵ See, eg, Peter, N Grabosky, ‘Using Non-Governmental Resources to Foster Regulatory Compliance’ (1995) 8 Governance: An International Journal of Policy and Administration 527Google Scholar, 542–6; Parker, The Open Corporation, above n 3, 245–91; Christine, Parker, Colin, Scott, Nicola, Lacey and John, Braithwaite (eds), Regulating Law (2004)Google Scholar; Christine, Parker, ‘Meta-Regulation: Legal Accountability for Corporate Social Responsibility’ in Doreen, McBarnet, Aurora, Voiculescu and Tom, Campbell (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (2007) 207–37Google Scholar.

⁶ This term is defined in s 110 of the Telecommunications Act 1997 (Cth).

⁷ Created in 2005, ACMA resulted from the merger of the Australian Communications Authority (ACA) and the Australian Broadcasting Authority. When Part 6 of the Act was first enacted, the power to register codes was bestowed upon the ACA.

⁸ I requested copies of certain documentation relating to the adoption of Part 6 of the Act, such as submissions made to the government in response to key consultation papers and internal ‘option papers’ prepared by the Department of Communications and the Arts, in 2007 under the Freedom of Information Act 1982 (Cth). However, I did not pursue my request after receiving an estimate of applicable charges in excess of A$48 000 (Australian dollars) and a finding by the Department of Communications, Information Technology and the Arts that I was not exempt from the charges because the research project was not in the ‘public interest'.

⁹ Since 1 July 1995, Telecom has traded under the name Telstra.

¹⁰ See, eg, Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992) ch 2; Neil, Gunningham and Joseph, Rees, ‘Industry Self-Regulation: An Institutional Perspective’ (1997) 19 Law and Policy 363, 400Google Scholar; Parker, The Open Corporation, above n 3, 246, 255–7.

¹¹ Procedural accountability is satisfied when procedures are ‘fair and impartial'; a system is substantively accountable when the rules generated in accordance with fair and impartial procedures achieve broader ‘public interest’ goals: see Anthony, Ogus, Regulation: Legal Form and Economic Theory (2004) 111Google Scholar.

¹² Accountability has been defined as ‘the duty to give account for one's actions to some other person or body': see Colin, Scott, ‘Accountability in the Regulatory State’ (2000) 27 Journal of Law and Society 38, 40Google Scholar.

¹³ Harm, Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (2005) 6Google Scholar.

¹⁴ For further detail of the principal complaints made by the CoT and the duration of their difficulties, see Austel, The CoT Cases: Austel's Findings and Recommendations (April 1994) 27–48.

¹⁵ The ‘honest broker’ role was adopted in response to legal advice that Austel did not have the power to resolve disputes between Telecom and its customers under the Telecommunications Act 1991 (Cth).

¹⁶ Austel regulated the Australian telecommunications sector from 1 July 1989 until 30 June 1997. Its functions and powers evolved during this period reflecting the gradual introduction of full network and services competition into the sector. Compare ss 16–32 of the Telecommunications Act 1989 (Cth) with ss 34–54 of the Telecommunications Act 1991 (Cth).

¹⁷ Austel, The CoT Cases, above n 14, 49–56, 92.

¹⁸ Steve Lewis, ‘COT Cases Return to Haunt Telecom', Australian Financial Review (Sydney), 10 September 1993.

¹⁹ Optus was selected as the second public fixed line carrier in Australia by the government in November 1991: Minister for Transport and Communications, Kim Beazley, ‘Government Selects Optus Communications as Second Carrier’ (Press Release, 19 November 1991). Along with Telecom, it had a duopoly over the operation and provision of fixed telecommunications networks in Australia until 30 June 1997: see Kim Beazley, Minister for Transport and Communications, Micro-Economic Reform: Progress Telecommunications (November 1990) 2–3.

²⁰ See, eg, Innes Willox, ‘Public Bludgeoned in Phone Ads War', The Age (Melbourne), 2 September 1993; Rochelle Burbury, ‘High Stakes, With Our Ears as Trophies', Sydney Morning Herald (Sydney), 30 July 1993.

²¹ Ben Potter, ‘Telecom Acts to End Complaints', The Age (Melbourne), 17 September 1993.

²² Paragraph 4 of the Telecommunications (General Telecommunications Licences) Declaration (No 2) 1991 (Cth) mandated that carrier licensees form and participate in an ombudsman scheme to enable the investigation of consumer complaints dealing with service, billing and charging disputes. Service providers were not required to participate in the TIO scheme until the adoption of the Telecommunications Act 1997 (Cth). The scheme was and remains funded by industry. For further information on the TIO, see Anita Stuhmcke, ‘The Rise of the Australian Telecommunications Industry Ombudsman’ (2002) 26 Telecommunications Policy 69.

²³ Ben Potter, ‘Telecom Says it is Working Hard to Remedy Deficiencies', The Age (Melbourne), 22 September 1993.

²⁴ Ben Potter, ‘Telecom Rapped Again on Disputes', The Age (Melbourne), 29 September 1993; Steve Lewis, ‘Telecom Draws More Fire From Austel', Australian Financial Review (Sydney), 29 September 1993.

²⁵ Ben Potter, ‘Telecom under Fire over Complaints', The Age (Melbourne), 25 November 1993.

²⁶ Anne Davies and Mark Riley, ‘Police Asked to Rule on Telecom Phone Taps', Sydney Morning Herald (Sydney), 2 February 1994.

²⁷ Michael Dwyer, ‘Telecom Hit by Bugging Claims', Australian Financial Review (Sydney), 6 January 1994.

²⁸ See Austel, The CoT Cases, above n 14, 201–14.

²⁹ In 1994, the provisions of the Privacy Act 1988 (Cth) did not extend to Telecom.

³⁰ Austel had no jurisdiction over matters arising under the Act, which has since been renamed the Telecommunications (Interception and Access) Act 1979 (Cth).

³¹ Commonwealth, Parliamentary Debates, House of Representatives, 21 September 1994, 1263, 1264 (MJ Lee, Minister for Communications and the Arts). The guidelines were revised even though Telecom had well established rules which prevented staff from recording calls without customer consent: see, eg, Tom Burton and Steve Lewis, ‘Police Inquiry as Telecom Admits Bugging', Australian Financial Review (Sydney), 2 February 1994. Telecom's group manager of media relations Keith Anderson was quoted as saying, ‘[a]ny such taping was a “last-resort thing” … Telecom's policy is that the company “must have customer consent before any taping takes place“'.

³² Davies and Riley, above n 26; Michael, Lee, ‘Minister Promises Lower Prices and Better Service’ (1994) 2 Telecommunications Law and Policy Review 103, 103Google Scholar.

³³ Steve Lewis, ‘New Rules for Telecom', Australian Financial Review (Sydney), 2 May 1994.

³⁴ Calling number display allows called parties to identify the telephone number from which a call is made.

³⁵ Helen Meredith, ‘Ombudsman Calls for Telecom Privacy Policy', Australian Financial Review (Sydney), 10 June 1994. See also Warwick, Smith, ‘Ensuring a Consumer Voice Beyond 1997’ (1994) 44(3) Telecommunications Journal of Australia 25Google Scholar.

³⁶ Examples included the phone number of the calling and called parties, the time of the call, its length and the path the call took through the relevant carrier's network: see Austel, Telecommunications Privacy: Final Report of Austel's Inquiry into the Privacy Implications of Telecommunications Services (December 1992) 65.

³⁷ Minister for Communications and the Arts, Michael Lee, ‘Minister Asks Austel to Set Up Telephone Privacy Body’ (Press Release, 16 August 1994).

³⁸ Ibid. See also Lee, above n 32, 104.

³⁹ Austel established the Privacy Advisory Committee pursuant to s 53 of the Telecommunications Act 1991 (Cth).

⁴⁰ See Attachment B in Austel Privacy Advisory Committee, The Protection of Customer Personal Information: Silent Line Customers (June 1995).

⁴¹ Implementation of the proposed TPC stalled because of Austel's concerns that the TPC be ‘with but not of Austel'. The proposed remit of the TPC needed, for example, to be broader than Austel's to address telemarketing practices used by companies in other business sectors. Telemarketing raised general fair trading issues which were the responsibility of the fair trading offices of each of the States and Territories. Austel had suggested that the TPC should be chaired by a person independent of Austel, although Austel would ‘service’ it: Austel, Telecommunications Privacy, above n 36, 46, 111–16.

⁴² Ibid.

⁴³ Holly, Raiche, ‘A Telecomms Privacy Committee at Last’ (1994) 1 Privacy Law and Policy Reporter 101Google Scholar.

⁴⁴ The introduction of full infrastructure competition from 1 July 1997 had been announced by the Labor government in November 1990 as part of its microeconomic reforms for the telecommunications sector: see Beazley, Micro-Economic Reform, above n 19, 2, 14. Although there was evidence that the degree of competition to emerge during the duopoly period was significantly less than the government had expected, the government remained committed to its self-imposed 30 June 1997 deadline: see Austel, ‘Convergence, Competition and Consumers': Austel's Submission to ‘Beyond the Duopoly’ — Review of Post 1997 Telecommunications Policy (1994) and Austel, Service Provider Industry Study: Final Report (March 1995) 2–4.

⁴⁵ Michael Lee, Minister for Communications and the Arts, Beyond the Duopoly: Australian Telecommunications Policy and Regulation Issues Paper (September 1994).

⁴⁶ Ibid 63.

⁴⁷ Ibid 63–9.

⁴⁸ Ibid 21–4.

⁴⁹ Independent Committee of Inquiry into Competition Policy in Australia, National Competition Policy (August 1993). The chair of the committee was Frederick Hilmer. The Independent Committee of Inquiry was initiated by the Prime Minister on 4 October 1992 following an agreement reached between the leaders of each of the Australian States and Territories in November 1991 that a new integrated, national competition policy was needed. For further information on the adoption, implementation and significance of Australia's National Competition Policy, see Bronwen, Morgan, Social Citizenship in the Shadow of Competition: The Bureaucratic Politics of Regulatory Justification (2003)Google Scholar.

⁵⁰ See generally Kirsten Harley and Mark Armstrong, ‘Waiting for the Convergent Regulator’ (Paper presented at the Communications Research Forum, Canberra, 2 October 2002) 6. The telecommunications framework was the first Commonwealth regulatory legislation to be reviewed after the Hilmer inquiry and the subject-matter fell within the exclusive jurisdiction of the Commonwealth: see Michael Lee, above n 45, 23. However, it was not vetted by the National Competition Council, the body responsible for ensuring compliance with National Competition Policy. See generally National Competition Council, Legislation Review Compendium (5th ed, 2004)Google Scholar.

⁵¹ Independent Committee of Inquiry into Competition Policy in Australia, above n 49, 6.

⁵² The Hilmer report does not define the term ‘public interest'. For analysis of factors relevant to ‘public interest’ in the communications context, see Christina, Hardy, Michell, McAuslan and Julia, Madden, ‘Competition Policy and Communications Convergence’ (1994) 17 University of New South Wales Law Journal 156Google Scholar, 171–6. See also Morgan, Social Citizenship in the Shadow of Competition, above n 49, 69–70.

⁵³ Industry Commission to the Council of Australian Governments, The Growth and Revenue Implications of Hilmer and Related Reforms: A Report of the Industry Commission to the Council of Australian Governments (March 1995) 512–13. For example, the government ignored the committee's recommendation that regulation which restricted competition should automatically lapse at the end of five years: at 513.

⁵⁴ See cl 5(1) of the Competition Principles Agreement signed by the Coalition of Australian Governments on 11 April 1995.

⁵⁵ Jeannette McHugh, Minister for Consumer Affairs (Labor), was quoted as saying, ‘Professor Hilmer threw up a major challenge to our thinking — not so much for what he said outright, but for what he implied': see Hardy, McAuslan and Madden, above n 52, 168 (citing McHugh's address ‘Consumers and the Reform of Australia's Utilities: Passing on the Benefits', 18 March 1994).

⁵⁶ See cl 5(9)(e) of the Competition Principles Agreement dated 11 April 1995. The Competition Policy Reform Act 1995 (Cth), the Competition Principles Agreement, the Conduct Code Agreement dated 11 April 1995 and the Agreement to Implement the National Competition Policy and Related Reforms dated 11 April 1995 collectively implement the Hilmer recommendations agreed to by the Commonwealth and each of the States and Territories.

⁵⁷ Minister for Communications and the Arts, Michael Lee, ‘A New Era in Telecommunications’ (Press Release, 1 August 1995). The government's policy for technical regulation post 1997, which also endorsed self-regulation, was published four months later: see Minister for Communications and the Arts, Michael Lee, ‘Australian Telecommunications Technical Regulation for Post 1997 Environment’ (Press Release, 20 December 1995).

⁵⁸ The first formulation of the legislative framework for industry rule-making was released on 20 December 1995 for public comment. See Minister for Communications and the Arts, Michael Lee, Telecommunications Bill 1996, Trade Practices Amendment (Telecommunications) Bill 1996: Exposure Drafts and Commentary (20 December 1995). On 14 May 1996, Senator Richard Alston, then Minister for Communications and the Arts, released a discussion paper on the post 1997 telecommunications legislation proposing a number of changes to the detail of the ‘co-regulatory’ mechanism suggested by Labor: see Senator the Hon Richard Alston, Minister for Communications and the Arts, Telecommunications Working Forum: Discussion Paper Post 1997 Telecommunications Legislation (14 May 1996). These proposals were later incorporated into a second draft of the Telecommunications Bill published on 1 October 1996: see Department of Communications and the Arts, Exposure Drafts and Commentary: Telecommunications Bill 1996, Telecommunications (Universal Service Levy) Bill 1996, Telecommunications (Numbering Charges) Bill 1996, Telecommunications (Carrier Licence Charges) Bill 1996, Telecommunications (Carrier Licence Fees) Termination Bill 1996, Radiocommunications (Receiver Licence Tax) Amendment Bill 1996, Radiocommunications (Transmitter Licence Tax) Amendment Bill 1996 (October 1996). Further changes were made as a result of the review of the Telecommunication Bill 1996 by the Senate Environment, Recreation, Communications and the Arts Legislation Committee between December 1996 and March 1997 and later the full Senate.

⁵⁹ The new Coalition government remained committed to the 30 June 1997 deadline for introducing full infrastructure competition in the sector and expressed in principle support for the use of industry rule-making and codes of practice: see Richard, Alston, ‘Telecommunications Policy’ (14 May 1996) 49(8) Canberra Survey 2Google Scholar.

⁶⁰ Joint Standing Committee on Electoral Matters, Parliament of Australia, Report of the Inquiry into All Aspects of the Conduct of the 1996 Federal Election and Matters Related Thereto (June 1997) 1.

⁶¹ Ogus, Regulation, above n 11, 107; Ogus, ‘Rethinking Self-Regulation', above n 1, 97–8; Robert, Baldwin and Martin, Cave, Understanding Regulation: Theory, Strategy and Practice (1999) 126–8Google Scholar.

⁶² Ibid.

⁶³ Ogus, Regulation, above n 11, 29–54. See also Stephen, Breyer, Regulation and Its Reform (1982) 15–35Google Scholar.

⁶⁴ Bronwen, Morgan and Karen, Yeung, An Introduction to Law and Regulation (2007) 26Google Scholar.

⁶⁵ Ayres and Braithwaite, above n 10, ch 2.

⁶⁶ Gunningham and Rees, above n 10, 404–5. See also Neil, Gunningham and Darren, Sinclair, ‘Integrative Regulation: A Principle-Based Approach to Environmental Policy’ (1999) 24 Law and Social Inquiry 853Google Scholar, 866–8.

⁶⁷ Gunningham and Rees, above n 10, 400–2.

⁶⁸ Parker, The Open Corporation, above n 3, 246, 255–7. See also Colin, Scott, ‘Speaking Softly Without Big Sticks: Meta-Regulation and Public Sector Audit’ (2003) 25 Law and Policy 203, 213Google Scholar.

⁶⁹ For further discussion of the economic theory of regulation, see, eg, Ogus, Regulation, above n 11, 58–73; Stephen, Croley, ‘Theories of Regulation: Incorporating the Administrative Process’ (1998) 98 Columbia Law Review 1, 34–56Google Scholar; George, J Stigler, ‘The Theory of Economic Regulation’ (1971) 2 The Bell Journal of Economics and Management Science 3Google Scholar; Richard, A Posner, ‘Theories of Economic Regulation’ (1974) 5 The Bell Journal of Economics and Management Science 335, 343–55Google Scholar; Robert, Britt Horwitz, The Irony of Regulatory Reform: The Deregulation of American Telecommunications (1989) 34–8Google Scholar.

⁷⁰ Croley, above n 69, 56.

⁷¹ Morgan and Yeung, above n 64, 44.

⁷² For further discussion of neo-pluralism, see Croley, above n 69, 55–65 and Gary, S Becker, ‘A Theory of Competition Among Pressure Groups for Political Influence’ (1983) 98 Quarterly Journal of Economics 371Google Scholar.

⁷³ Telecommunications (General Telecommunications Licences) Declaration (No. 2) 1991 (Cth) para 5.1.

⁷⁴ Colin Scott and Julia Black define ‘sanctioned self-regulation’ as regulation which has been prepared collectively by a group and is then formally approved by the state: see Scott, ‘Self-Regulation and the Meta-Regulatory State', above n 1, 137–8; Black, ‘Constitutionalising Self-Regulation', above n 1, 27.

⁷⁵ The coaching element present in this case is not adequately captured in the definitions of sanctioned self-regulation or other types of self-regulation as enumerated by Colin Scott and Julia Black: see Scott, ‘Self-Regulation and the Meta-Regulatory State', above n 1, 136–9; Black, ‘Constitutionalising Self-Regulation', above n 1, 26–28.

⁷⁶ This problem raises broader questions about the utility of the definitions Colin Scott and Julia Black have proposed which are outside the scope of this article.

⁷⁷ Scott, ‘Self-Regulation and the Meta-Regulatory State', above n 1, 136–7.

⁷⁸ Black, ‘Constitutionalising Self-Regulation', above n 1, 27.

⁷⁹ Commonwealth, Parliamentary Debates, House of Representatives, 5 December 1996, 7799–7801 (Warwick Smith, representing the Minister for Communications and the Arts, Senator Alston); Commonwealth, Parliamentary Debates, Senate, 25 February 1997, 941 (Senator Campbell, Parliamentary Secretary to the Treasurer).

⁸⁰ Case law suggests that the Commonwealth legislature cannot delegate rule-making authority to private bodies absent some mechanism permitting legislative oversight: see Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, 119–21 (Evatt J). Evatt J states, ‘The further removed the law-making authority is from continuous contact with Parliament, the less likely it is that the law will be a law with respect to any of the subject matters enumerated in secs 51 and 52 of the Constitution': at 120.

⁸¹ Scott, ‘Self-Regulation and the Meta-Regulatory State', above n 1, 138.

⁸² Black, ‘Constitutionalising Self-Regulation', above n 1, 27.

⁸³ Stuhmcke, above n 22, 74–8.

⁸⁴ See Part III of the article below. This definitional problem is not unique to the term ‘co-regulation'. Most manifestations of self-regulation have been defined solely by their relationships to the state.

⁸⁵ See generally Austel, Convergence, Competition and Consumers and Service Provider Industry Study, above n 44.

⁸⁶ Commonwealth, Parliamentary Debates, House of Representatives, above n 31, 1263 (MJ Lee).

⁸⁷ Austel, The CoT Cases, above n 14, 113–14.

⁸⁸ This was, in part, due to the fact that the government intended the Commonwealth Ombudsman to investigate and resolve individual consumer complaints with Austel responsible for the policy and regulatory issues which arose from consumer complaints: see Austel, Annual Report 1990–1991, 3, 41–42 and House of Representatives Standing Committee on Transport, Communications and Infrastructure, House of Representatives, Parliament of Australia, Telecom's Handling of Customer Complaints (1991) 3.32–3.34.

⁸⁹ Speaking in Parliament, the then Minister for Communications Michael Lee stated, ‘Clearly there is room for improvement in Telecom's relations with its customers. A positive, non-adversarial approach is obviously preferable': Commonwealth, Parliamentary Debates, House of Representatives, above n 31, 1263 (MJ Lee).

⁹⁰ See generally Toni, Makkai and John, Braithwaite, ‘In and Out of the Revolving Door: Making Sense of Regulatory Capture’ in Robert, Baldwin, Colin, Scott and Christopher, Hood (eds), A Reader on Regulation (1998) 173Google Scholar.

⁹¹ Austel, Telecommunications Privacy, above n 36, 23–5.

⁹² Ibid 15.

⁹³ Government's wariness arose for several reasons. First, when the Privacy Act 1988 (Cth) was enacted, the government concluded it had no legal capacity under the Australian Constitution to extend national privacy legislation to private entities. Secondly, privacy was seen by government as ‘bigger’ than telecommunications; privacy concerns were not limited to telecommunications providers: see Margaret, Jackson, Hughes on Data Protection in Australia (2nd ed, 2001) 23, 93Google Scholar. For consideration of the constitutional basis of national privacy laws, see generally Jackson, at 22–5 and Greg, Tucker, Information Privacy Law in Australia (1992) 63–8Google Scholar.

⁹⁴ Austel, Telecommunications Privacy, above n 36, 34.

⁹⁵ Ibid 40–1. Section 88 of the Telecommunications Act 1991 (Cth) prohibited employees of carriers from disclosing or using data acquired in the course of employment, subject to a number of exceptions, including performance of job responsibilities.

⁹⁶ Ibid 64–5.

⁹⁷ Ibid 45.

⁹⁸ Croley, above n 69, 58.

⁹⁹ Ibid 40.

¹⁰⁰ Work on a code of practice governing the transfer of mobile service customers between carriers and service providers had started in 1995 following a complaint by Telecom that customers were being transferred from Telecom's network without their consent. However, efforts by Austel and industry faltered, and Austel grew increasingly frustrated by the process. No code was adopted before the new legislation went into effect: see Austel, Annual Report 1994–1995 (1995) 15; Austel, Annual Report 1995–1996 (1996) 28; Austel, Annual Report 1996–1997 (1997) 29. See also an interview with Neil Tuckwell (Austel's outgoing chairman) who described Austel's experience with industry code development as ‘disappointing’ in ‘Austel – Evolution or Devolution?’ (October 1995) Australian Communications 49, 51. The Australian Communications Industry Forum (ACIF) published what was described as an ‘interim guideline’ on the transfer of mobile service customers in January 1998: see ACIF, Interim Guideline: Mobile Telecommunications Industry Change of Service (January 1998). A code has never been adopted.

¹⁰¹ The presence of advantages may explain why there is little evidence suggesting industry objected to this aspect of the policy principles. Concern was raised that industry would need to respond to the regulatory challenge but the principle of self-regulation was not challenged: see, eg, Frank Blount (CEO, Telstra Corporation), ‘Post-1997 Challenges’ (October 1995) Australian Communications 58 and Helen Meredith, ‘Now, It's Time for the Real Issues', Australian Financial Review (Sydney), 30 October 1995 (quoting Alan Horsley, executive director of the Australian Telecommunications Users Group).

¹⁰² The ACA was responsible for Part 6 of the Act prior to its merger in 2005 with the Australian Broadcasting Authority to form ACMA.

¹⁰³ Indeed, in the second reading speech of the Telecommunications Bill, it was stated:

This package of legislation provides the framework for the telecommunications industry to take responsibility for key areas of regulation over and above the legislative guarantees provided… . The codes regime will supplement and enhance the fundamental consumer protection arrangements established in this bill … Codes can address areas of concern to consumers that are currently unregulated.

Commonwealth, Parliamentary Debates, House of Representatives, above n 79, 7800-1 (Warwick Smith). These statements were repeated in the Senate when the Bill was read the second time: see Commonwealth, Parliamentary Debates, Senate, above n 79, 941, 943 (Senator Campbell).

¹⁰⁴ A code is deficient if: ‘(a) the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or (b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters': Telecommunications Act 1997 (Cth) s 125(7).

¹⁰⁵ Under s 118 of the Telecommunications Act 1997 (Cth), ACMA must first give bodies or associations representing industry sectors an opportunity to draft a code of practice, and it must be satisfied that a code is ‘necessary or convenient’ to provide ‘appropriate community safeguards’ or otherwise deal with the performance or conduct of industry participants. A request can be made only if industry is unlikely to develop a code but for ACMA's request. Similar provisions give ACMA powers to determine standards if an industry body or association does not exist.

¹⁰⁶ The initial minimum period of 90 days proposed was later extended to 120 days with the ACA retaining discretion to extend the period. This change was requested by the Australian Telecommunications Users Group in its submission to the Senate Legislation Committee. This suggestion was not endorsed by the Senate Legislation Committee but government agreed to the change in any event: see Evidence to Senate Environment, Recreation, Communications and the Arts Legislation Committee, Parliament of Australia, Canberra, 16 January 1997, 397 (Alan Horsley (ATUG)) and Supplementary Explanatory Memorandum, Telecommunications Bill 1996 (Cth) 31.

¹⁰⁷ See, eg, Peter, Cane, ‘Self-Regulation and Judicial Review’ (1987) 6 Civil Justice Quarterly 324Google Scholar.

¹⁰⁸ Jody, Freeman, ‘Private Parties, Public Functions and the New Administrative Law’ in David, Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order (1999) 331, 353Google Scholar.

¹⁰⁹ See, eg, Black, ‘Constitutionalising Self-Regulation', above n 1; Kate, MacNeill, ‘Self Regulation: Rights and Remedies — the Telecommunications Experience’ in Chris, Finn (ed), Sunrise or Sunset? Administrative Law in the New Millennium: Papers Presented at the 2000 National Administrative Law Forum (2000) 249, 261–4Google Scholar; Alan, C Page, ‘Self-Regulation: The Constitutional Dimenson’ (1986) 49 The Modern Law Review 141Google Scholar; Norman, Lewis, ‘Regulating Non-Government Bodies: Privatization, Accountability, and the Public-Private Divide’ in Jeffrey, Jowell and Dawn, Oliver (eds), The Changing Constitution (2nd ed, 1989) 219Google Scholar.

¹¹⁰ See, eg, Ayres and Braithwaite, above n 10, 3–18; Grabosky, above n 5, 543. For critical assessment of these arguments as a basis for self-regulation generally, see Catherine, Donnelly, Delegation of Governmental Power to Private Parties (2007) 84–98Google Scholar.

¹¹¹ See, eg, Giandomenico Majone, ‘Regulatory Legitimacy’ as extracted in Morgan and Yeung, above n 64, 254–9.

¹¹² Scott, ‘Self-Regulation and the Meta-Regulatory State', above n 1, 140.

¹¹³ Drawing on a number of case studies in media and telecommunications law, Wolfgang Schulz and Thorsten Held have identified a number of ‘instruments’ to regulate self-regulation, including the use of code registration. However, they do not expressly raise or consider the normative issue of legitimacy in industry rule-making or the procedural or substantive criteria for registration the state should adopt. They also do not assess in any great depth the implications of the instruments they identify: see Schulz and Held, above n 1, 60–81. Some preliminary work identifying alternative mechanisms of accountability for regulatory rules developed by industry and adopted in the US has also been done: see Jody, Freeman, ‘The Private Role in Public Governance’ (2000) 75 New York University Law Review 543, 592–664Google Scholar.

¹¹⁴ The internal administrative law, which is based on processes which have been used at the transnational level to develop technical standards, has five aspects: (1) development of standards by a committee representative of interested parties; (2) a committee's use of consensus in the preparation of draft standards; (3) an opportunity for the public to comment on draft standards and an obligation on the committee to consider any comments received; (4) a formal vote by committee members to adopt standards once the period for public comment has closed and comments (if any) are considered and addressed; and (5) a duty to keep standards under review from time to time: see Schepel, above n 13.

¹¹⁵ Robert Baldwin, Rules and Government (1995) 44.

¹¹⁶ Although this provision certainly acknowledges some role for consumers in the rule-making process, it does not precisely define what that role should be. During committee debate in the Senate, concerns were raised that consultation with only one consumer organisation would occur with the result that not all consumer issues would be adequately identified. Imposing an obligation to consult more widely was rejected to keep the rule-making scheme workable. However, government acknowledged (albeit implicitly) that interpretation of the consultation requirement would require good faith on the part of industry if the spirit of the amendment was to be followed: see Commonwealth, Parliamentary Debates, Senate, 20 March 1997, 1952–4 (Senators Margetts, Alston and Schacht).

¹¹⁷ Scott, ‘Accountability in the Regulatory State', above n 12, 50. See also Colin, Scott, ‘Analysing Regulatory Space: Fragmented Resources and Institutional Design’ (2001) Public Law 329Google Scholar. Jody Freeman uses the term ‘negotiated relationships’ but the concept is the same. See Freeman, ‘The Private Role in Public Governance', above n 113, 571–4.

¹¹⁸ Julia, Black, ‘Proceduralizing Regulation: Part I’ (2000) 20 Oxford Journal of Legal Studies 597, 607Google Scholar. See also Colin, Scott, ‘The Proceduralization of Telecommunications Law’ (1998) 22 Telecommunications Policy 243, 243Google Scholar; Robert, Baldwin, ‘Legislation and Rule-Making’ in Peter, Cane and Mark, Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 727, 741Google Scholar.

¹¹⁹ The term ‘Austel’ as used in the December 1995 draft referred to Austel and the Spectrum Management Authority following their proposed merger. Austel was renamed the ACA in subsequent drafts.

¹²⁰ The meaning of ‘general consensus’ was not defined.

¹²¹ ACIF merged with the Service Providers Association Inc (SPAN) to form the Communications Alliance in 2006.

¹²² In fact, in the commentary which accompanied the first draft of what became Part 6 in December 1995, the Department of Communications and the Arts asserted that it had modelled the telecommunications industry code provisions on Part 9 of the Broadcasting Services Act 1992 (Cth): see Minister for Communications and the Arts, Michael Lee, Telecommunications Bill 1996, Trade Practices Amendment (Telecommunications) Bill 1996: Exposure Drafts and Commentary (20 December 1995) 19. It is true that the rule-making models in the Broadcasting Services Act 1992 (Cth) and the draft Telecommunications Bill share some similarities. However, the rule-making structure eventually adopted in Part 6 of the Telecommunications Act 1997 (Cth) differs in significant ways from the broadcasting model.

¹²³ Austel Privacy Advisory Committee, The Protection of Customer Personal Information: Silent Line Customers (June 1995); Austel Privacy Advisory Committee, Telemarketing and the Protection of the Privacy of Individuals (October 1995) and Austel Privacy Advisory Committee, Calling Number Display: Third Report of the Austel Privacy Advisory Committee (December 1995).

¹²⁴ Austel, Telecommunications Privacy, above n 36, 57.

¹²⁵ On the importance of enforcement and self-regulation, see Parker, The Open Corporation, above n 3, 252–63; Ayres and Braithwaite, above n 10, ch 2; Derek, Wilding, ‘In the Shadow of the Pyramid: Consumers in Communications Self-Regulation’ (2005) 55(2) Telecommunications Journal of Australia 37, 45–8Google Scholar.

¹²⁶ This mechanism serves a similar purpose as Robert Baldwin's ‘legislative mandate claim’ in the agency context: see Baldwin, Rules and Government, above n 115, 43.

¹²⁷ See above n 40.

¹²⁸ Telecommunications Act 1997 (Cth) s 117(1)(d)(i).

¹²⁹ Telecommunications Act 1997 (Cth) s 117(1)(d)(ii).

¹³⁰ Telecommunications Act 1997 (Cth) s 112(2).

¹³¹ Telecommunications Act 1997 (Cth) s 112(3)(a).

¹³² Telecommunications Act 1997 (Cth) s 112(3)(b).

¹³³ Telecommunications Act 1997 (Cth) s 112(3)(c).

¹³⁴ Telecommunications Act 1997 (Cth) s 112(3)(d)(i)-(iii).

¹³⁵ Telecommunications Act 1997 (Cth) s 112(3).

¹³⁶ Ogus, ‘Rethinking Self-Regulation', above n 1, 102–7.

¹³⁷ Freeman, ‘Private Parties, Public Functions and the New Administrative Law', above n 108, 335.

¹³⁸ See, eg, Wilding, above n 125; MacNeill, above n 109, 260–1.

¹³⁹ Wilding, above n 125, 43. The Communications Alliance has since taken measures to address these concerns. For example, the Communications Alliance now requires equal representation of consumer and industry groups on working committees when ‘consumer’ codes are being prepared. The rule, however, does not apply when ‘technical’ or ‘operational’ codes are drafted.

¹⁴⁰ Ibid 52.

¹⁴¹ The Alliance is viewed as the ‘peak’ self-regulatory body in the Australian telecommunications sector.

¹⁴² Following the adoption of the Telecommunications Legislation Amendment (Future Proofing and Other Measures) Act 2005 (Cth) and the Telecommunications (Carrier Licence Charges) Amendment (Industry Plans and Consumer Codes) Act 2005 (Cth), self-regulatory bodies, such as the Communications Alliance, may apply to ACMA for reimbursement of certain costs associated with the development of consumer codes, including associated costs of permitting consumer representatives to participate in code preparation. Funding for the scheme is provided by an additional levy on carrier licensees.

¹⁴³ As of the time of writing, work is underway to establish an Australian Communications Consumer Action Network (ACCAN) to be funded by the Commonwealth government. However, it remains unclear what (if any) effect the formation of ACCAN will have on consumer participation in industry self-regulation.

¹⁴⁴ See, eg, Mariano-Florentino, Cuéllar, ‘Rethinking Regulatory Democracy’ (2005) 57 Administrative Law Review 411, 424Google Scholar.

¹⁴⁵ Paddy Costanzo, Manager Policy, Optus Communications, ‘How is the Regulatory Jigsaw Fitting Together?’ (Paper presented at the 4^th annual IIR Conference on Telecommunications In an Era of Open Competition, Sydney, 31 July 1997) 6.

¹⁴⁶ Bronwen, Morgan, ‘Regulating the Regulators: Meta-Regulation as a Strategy for Reinventing Government in Australia’ (1999) 1 Public Management: An International Journal of Research and Theory 49, 54Google Scholar.

¹⁴⁷ Bronwen, Morgan, ‘The Economization of Politics: Meta-Regulation as a Form of Nonjudicial Legality’ (2003) 12 Social & Legal Studies 489, 509–16Google Scholar. See also Morgan, Social Citizenship in the Shadow of Competition, above n 49.

¹⁴⁸ Ayres and Braithwaite, above n 10, 113; Wilding, above n 125, 50.

¹⁴⁹ MacNeill, above n 109, 253, 260.

¹⁵⁰ In February 1999, the ACA blocked the registration of ACIF's Customer and Network Fault Management Code on substantive grounds: see ACIF, Annual Report 1999, 47.

¹⁵¹ Wilding, above n 125, 43.

¹⁵² Ayres and Braithwaite, above n 10, ch 3.

¹⁵³ The Communications Alliance permits consumers to propose new codes but they cannot initiate work.

¹⁵⁴ Doreen, McBarnet and Christopher, Whelan, ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’ (1991) 54 The Modern Law Review 848, 850–51Google Scholar.

¹⁵⁵ Julia, Black, ‘“Which Arrow?“: Rule Type and Regulatory Policy’ (1995) Public Law 94Google Scholar, 100, 104.

¹⁵⁶ Ibid 114.

¹⁵⁷ MacNeill, above n 109, 258, 265.

¹⁵⁸ A code signatory is an industry participant who has acknowledged to the Communications Alliance that it complies fully with the provisions of a code and has agreed to participate in the administration and compliance scheme of the Alliance. Participation is agreed on a code-by-code basis. However, as the Alliance and ACMA repeatedly stress, a small number of code signatories does not mean that industry is not compliant with the terms of codes.

¹⁵⁹ Wilding, above n 125, 50.

¹⁶⁰ Karen, Lee, ‘Public Engagement and the Installation of Wireless Facilities Exempt from Local Planning Requirements’ (2007) 13 Local Government Law Journal 131, 158Google Scholar (fn 151).

¹⁶¹ Parker, The Open Corporation, above n 3, 277–88.

¹⁶² See generally Leigh Hancher and Michael Moran, ‘Organizing Regulatory Space’ in Baldwin, Scott and Hood, above n 90, 148.

¹⁶³ Clare Hall, Colin Scott and Christopher Hood, Telecommunications Regulation: Culture, Chaos and Interdependence Inside the Regulatory Process (2000).

¹⁶⁴ Ibid 204.