Revisiting the 'constitution of private governance'

Abstract

The principle of consensus is increasingly advanced as a potential solution to the normative difficulties raised by globalization and the decentred state - the procedural and substantive legitimacy of industry-generated rules and the accountability of private actors in the rulemaking process. To date, however, there has been little empirical exploration of the political dynamic of industry rulemaking or evaluation of whether consensus responds adequately to it. This working paper begins that process by using the development of the Consumer Contracts Code in 2004 by a working committee formed under the auspices of the Australian Communications Industry Forum (now called the Communications Alliance), the 'peak' self-regulatory body within the Australian telecommunications sector, as a case study. While recognising that further empirical study is necessary, the working paper concludes by arguing that consensus may not respond adequately to the underlying politic.