Counting the Casualties of Telecom: The Adoption of Part 6 of the Telecommunications ACT 1997 (CTH)
| Author | Karen Lee |
| DOI | 10.22145/flr.37.1.2 |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| Subject Matter | Article |
COUNTING THE CASUALTIES OF TELECOM: THE
ADOPTION OF PART 6 OF THE TELECOMMUNICATIONS
ACT 1997 (CTH)
Karen Lee
∗
INTRODUCTION
The concept of self-regulation in all of its forms1 has become a foundation stone in the
theoretical and practical debates about the role and function of the modern 'decentred'
regulatory state.2 In the decentred state, government, among other things, ceases to
rely upon the old tool of 'command and control' regulation to achieve social policy
goals.3 Instead, government relies on alternative systems developed by industry and
others and faces the arguably more daunting challenge of trying to harness the internal
regulatory capacity of these other regulatory systems, directing and steering them in a
way that ensures they deliver the goods and services sought by society in accordance
with accepted social values.4 Although the focus of the theoretical regulatory debate
has started to shift to the meta-regulatory potential of law and the ability of
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∗ Lecturer, School of Law, University of New England; PhD candidate, University of New
South Wales. An earlier version of this article was presented at the 26th Annual Australian
and New Zealand Law and History Society Conference on 23 September 2007. I wish to
thank Lesley Hitchens, Angus Corbett and the two anonymous referees for their helpful
comments on earlier drafts of this article; Anne Hurley and the staff of the
Communications Alliance for providing me with access to internal Alliance documentation
and the librarians at the Department of Communications, Information Technology and the
Arts and the Australian Communications and Media Authority (Sydney) for permitting me
to use their collections.
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, 114–22 and 'Constitutionalising
Self-Regulation' (1996) 59 The Modern Law Review 24, 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) 132–6; Anthony Ogus, 'Rethinking Self-Regulation'
(1995) 15 Oxford Journal of Legal Studies 97, 99–100; 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) 7–8.
2 Black, 'Decentring Regulation', above n 1, 128.
3 Ibid 108. See also Christine Parker, The Open Corporation: Effective Self-Regulation and
Democracy (2002) 15.
4 See generally David Osborne and Ted Gaebler, Reinventing Government: How the
Entrepreneurial Spirit is Transforming the Public Sector (1992) 25–48.
42 Federal Law Review Volume 37
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government to 'regulate self-regulation',5 the question of how and why self-regulatory
rule-making regimes actually emerge remains largely unexplored from an empirical
standpoint. A better understanding of why self-regulatory rule-making regimes
develop and the roles of law and government (if any) in the emergence of those
systems is necessary, however, if meta-regulating law is to have any hope of becoming
more effective than the blunt instrument of the old-styled regulation of the centred
state.
This article considers how self-regulation develops and the role of the state in its
emergence in the context of the adoption of Part 6 of the Telecommunications Act 1997
(Cth) (referred to in this article as Part 6 of the Act or Part 6), which marks the official
start of self-regulation by the telecommunications industry in Australia. Part 6 of the
Act permits 'sections of the telecommunications industry'6 to prepare and register
codes of practice dealing with a broad range of consumer matters with the Australian
Communications and Media Authority (ACMA).7 Upon registration, a code can be
legally enforced by ACMA. Using publicly available materials, 8 the article first traces
the historical development of Part 6 of the Act, arguing its adoption was a consequence
of the 'Casualties of Telecom' affair which left consumers distrustful of Telecom's9
customer complaints handling and privacy policies. It then evaluates the public and
private interest theories of regulation in light of the adoption of Part 6 of the Act and
concludes that neither theory adequately explains why self-regulation emerged. It also
argues that an exploration of the historical context in which Part 6 evolved
demonstrates that threat of state intervention is not necessarily a precondition for the
development of self-regulation, as has been argued elsewhere.10 Instead, it shows that
regulatory culture and adverse publicity were significant factors in the development of
self-regulation in the Australian telecommunications sector.
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5 See, eg, Peter N Grabosky, 'Using Non-Governmental Resources to Foster Regulatory
Compliance' (1995) 8 Governance: An International Journal of Policy and Administration 527,
542–6; Parker, The Open Corporation, above n 3, 245–91; Christine Parker, Colin Scott, Nicola
Lacey and John Braithwaite (eds), Regulating Law (2004); 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) 207–37.
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, 400; Parker, The Open Corporation,
above n 3, 246, 255–7.
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