The rule of law and industry rulemaking

Abstract

This presentation looks at one aspect of the phenomenon of the 'decentred' state - the delegation of rulemaking functions by legislatures to self-regulatory bodies. Drawing on the experience of the Communications Alliance (the Australian telecommunications sector's 'peak' self-regulatory body) formulating codes of practice, it explores if the confidential 'consensus' rulemaking process used by a number of industry sectors accords with the rule of law. It asks if the absence of certain 'core' rules that have an indirect effect on deliberation when legislators and administrators make 'law' (e.g., conflicts of interest, venue neutrality) enables industry to override consumer and public interest considerations.