Engaging Industry in Co-Regulatory Rule-Making

Abstract

Co-regulation — when an industry association develops a code of practice and this has legislative backing — has become an important regulatory tool. Yet, we lack an understanding of how industry associations engage their members and non-members when developing codes of practice. This oversight is surprising given growing recognition of the importance of regulatory intermediaries like industry associations for achieving regulatory objectives. It is all the more surprising when the purposes of industry engagement during rule-making are understood. In this article, I use the development of the Australian Telecommunications Consumer Protections Code 2019 by the Communications Alliance (‘Comms Alliance’) as a case study to identify the different ways in which the Comms Alliance engaged with industry participants during rule-making and to assess if the functions of industry engagement were discharged. Drawing on interviews with telecommunications companies subject to the Code, I argue that the process of industry engagement had some value in the development of the Code. However, the engagement barriers faced by a sizeable number of industry participants prevented the full realisation of co-regulatory rule-making’s purported benefits. I conclude the article by discussing the potential implications of these findings for legislators, governments, and policymakers, highlighting the need for further empirical study of industry associations and their practices in industry sectors within Australia and farther afield.