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Towards Responsiveness: Consumer and Citizen Engagement in Co-Regulatory Rule-Making in the Australian Communications Sector

Published online by Cambridge University Press:  01 January 2025

Karen Lee Open the ORCID record for Karen Lee [Opens in a new window]  and
Derek Wilding
Karen Lee*
Affiliation:
Dr Karen Lee is a Senior Lecturer in the Faculty of Law at the University of Technology Sydney (UTS)
Derek Wilding*
Affiliation:
Dr Derek Wilding is Co-Director of the Centre for Media Transition at UTS
*
The author may be contacted at Karen.Lee@uts.edu.au.
The author may be contacted at Karen.Lee@uts.edu.au.
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Abstract

This article begins the process of evaluating the adequacy of the procedural and substantive requirements that Australian communications regulators (and hence industry bodies) must satisfy before co-regulatory codes of practice can be registered. It considers if the procedural requirements relating to consumer and public consultation, included in the statutory frameworks that authorise and govern co-regulation in the media, online and telecommunications sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of consumers and citizens. Drawing on publicly available information about seven industry bodies that have drafted codes of practice and round table discussions with industry, consumers and regulators, the article highlights that the current engagement practices of industry bodies often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code registration criteria relating to consumer and public consultation must be overhauled if these weaknesses are to be rectified.

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Articles
Information
Federal Law Review , Volume 49 , Issue 2 , June 2021 , pp. 272 - 302
Copyright
Copyright © 2021 The Author(s)

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Footnotes

†

Our research was made possible by funding received from the Australian Communications Consumer Action Network (ACCAN), the Faculty of Law, UTS and the School of Law, University of New England, where Dr Lee was previously employed. Funding received from ACCAN is made possible by funding provided by the Commonwealth of Australia under section 593 of the Telecommunications Act 1997 (Cth). This funding is recovered from charges on telecommunications carriers. The views expressed in this article do not necessarily represent the views of ACCAN. Our research was approved by the UTS Human Research Ethics Committee (ETH 17-1830). We wish to thank the two anonymous referees for their helpful comments on an earlier draft of this article.

References

1. This definition, which reflects widespread understanding of the term within the communications industry in Australia, was adopted in Department of Communications, Regulating Harms in the Australian Communications Sector: Observations on Current Arrangements (Policy Background Paper No 2, May 2014) 10 (‘Regulating Harms’). In this article, we differentiate co-regulation, as defined above, from self-regulation (meaning voluntary rules developed by industry without legislative backing or regulator enforcement) and direct regulation (meaning legislation and rules developed under legislation by government or regulators). Our approach is largely consistent with how the terms are used in the 2014 Policy Background Paper (see pp 6 and 15), except that we use ‘direct regulation’ in place of ‘black letter law’.

2. See Broadcasting Services Act 1992 (Cth) (‘BSA’) pt 9. Although the BSA in 1992 anticipated codes for subscription television broadcasting services (pay TV), these services did not commence until 1995.

3. See Telecommunications Act 1997 (Cth) (‘TA’) pt 6.

4. See BSA (n 2) sch 5 pt 5 (introduced by the Broadcasting Services Amendment (Online Services) Act 1999 (Cth)). Codes must deal with matters such as procedures to ensure children do not access online accounts without the consent of parents or responsible adults.

5. Part 4 of the Interactive Gambling Act 2001 (Cth) (‘IGA’) refers to ‘a body or association’ that ‘represents internet service providers’.

6. See BSA (n 2) sch 7 pt 4 (introduced by the Communications Legislation Amendment (Content Services) Act 2007 (Cth)). ‘Sections of the content industry’ include hosting service providers, live content service providers, links service providers and commercial content service providers; in all cases, the services must have an Australian connection.

7. See, eg, TA (n 3) s 118; BSA (n 2) sch 5 pt 5 cl 63; IGA (n 5) s 39; BSA (n 2) sch 7 pt 4 cl 86.

8. BSA (n 2) s 125; TA (n 3) ss 123, 125; BSA (n 2) sch 5 pt 5 cls 68, 70; IGA (n 5) ss 44, 46; BSA (n 2) sch 7 pt 4 cls 91, 93. With the exception of Part 9 of the BSA, comparable powers to develop industry standards exist in the other four frameworks if there are no bodies or associations representing industry interests.

9. See Free TV Australia, Commercial Television Industry Code of Practice (2015); Communications Alliance Ltd, Industry Code C628: Telecommunications Consumer Protections Code (2019).

10. Regulating Harms (n 1) 44; Department of Infrastructure, Transport, Regional Development and Communications, Consumer Safeguards Review: Part C/Choice and Fairness Consultation Paper (July 2020) 10 (‘Consumer Safeguards Review’).

11. See above n 1 for definitions of self-regulation and direct regulation.

12. See, eg, Australian Communications and Media Authority (ACMA), Misinformation and News Quality on Digital Platforms in Australia: A Position Paper to Guide Code Development (June 2020).

13. Joint Standing Committee on the National Broadband Network, The Rollout of the National Broadband Network: 1st Report of the 45th Parliament (29 September 2017) 98–9. For an example of the new ACMA rules, see the Telecommunications (NBN Consumer Information) Industry Standard 2018 (Cth).

14. See, eg, Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 (Cth); Explanatory Memorandum, Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 (Cth).

15. See, eg, Australian Competition and Consumer Commission, Digital Platforms Inquiry: Final Report (July 2019) ch 4.

16. See Department of Communications and the Arts, Online Safety Legislative Reform: Discussion Paper (December 2019) 40–1.

17. At the time of writing, the Department of Infrastructure, Transport, Regional Development and Communications is undertaking a review of Part 6 of the TA (n 3). See generally Consumer Safeguards Review (n 10).

18. This obligation applies to ACMA when registering codes under Part 9 of the BSA (n 2).

19. This obligation applies to ACMA when registering codes under Part 6 of the TA (n 3) and under Part 4 of the IGA (n 5); and to the eSafety Commissioner when registering codes under Schedules 5 and 7 of the BSA (n 2).

20. See TA (n 3) s 117.

21. Christine Parker and John Braithwaite, ‘Regulation’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford University Press, 2003) 119, 128.

22. See, eg, Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999 (Cth) 51; Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999 (Cth) 57; Explanatory Memorandum, Interactive Gambling Bill 2001 (Cth) 52.

23. Cynthia Farina et al, ‘Democratic Deliberation in the Wild: The McGill Online Design Studio and the Regulation Room Project’ (2014) 41(5) Fordham Urban Law Journal 1527, 1550 (‘Democratic Deliberation in the Wild’).

24. One round table was held for each set of stakeholders. The Consumer and Regulator Round Tables were held on 9 May 2019; the Industry Round Table was held on 10 May 2019. All round tables were semi-structured. The Industry Round Table included representatives from bodies engaged in self-regulatory rule-making and bodies engaged in co-regulatory rule-making.

25. See, eg, John M Bryson et al, ‘Designing Public Participation Processes: Theory to Practice’ (2013) 73(1) Public Administrative Review 23, 26.

26. Arie Freiberg, Regulation in Australia (Federation Press, 2017) 158.

27. ‘Consultative and inclusive’ are some of several matters Freiberg nominates as the ‘principles of good regulation’: Freiberg (n 26) 157–69.

28. ACMA, ‘The ACMA Registers New Commercial Television Industry Code of Practice’ (Media Release 56/2015, 10 November 2015).

29. See, eg, Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992); John Braithwaite, Regulatory Capitalism: How It Works, Ideas for Making It Work Better (Edward Elgar, 2008).

30. Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (Oxford University Press, 1998).

31. Michael C Dorf and Charles F Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) 98(2) Columbia Law Review 267.

32. See, eg, Chris Ansell and Alison Gash, ‘Collaborative Governance in Theory and Practice’ (2008) 18(4) Journal of Public Administration Theory and Practice 543.

33. Robert Baldwin and Julia Black, ‘Really Responsive Regulation’ (2008) 71(1) The Modern Law Review 59.

34. Explanatory Memorandum, Broadcasting Services Bill 1992 (Cth) 66–7 (emphasis added). The same statement appears in Explanatory Memorandum, Broadcasting Services Bill 1992 (Cth) (Revised) 61.

35. See, eg, Mark C Suchman, ‘Managing Legitimacy: Strategic and Institutional Approaches’ (1995) 20(3) Academy of Management Review 571; Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’ (2008) 2(2) Regulation & Governance 137.

36. This point is made by Christine Parker, ‘Twenty Years of Responsive Regulation: An Appreciation and Appraisal’ (2013) 7(1) Regulation & Governance 2, 4; Karen Lee, The Legitimacy and Responsiveness of Industry Rule-making (Hart, 2018) 208; Seung-Hun Hong and Jong-sung You, ‘Limits of Regulatory Responsiveness: Democratic Credentials of Responsive Regulation’ (2018) 12(3) Regulation & Governance 413, 414.

37. Hong and You (n 36) 414.

38. Peter J May and Robert S Wood, ‘At the Regulatory Front Lines: Inspectors’ Enforcement Styles and Regulatory Compliance’ (2003) 13(2) Journal of Public Administration Research and Theory 117.

39. See, eg, Valerie Braithwaite et al, ‘Regulatory Styles, Motivational Postures, and Nursing Home Compliance’ (1994) 16(4) Law & Policy 363.

40. Baldwin and Black (n 33) 59.

41. See, eg, Julia Black, ‘Proceduralizing Regulation: Part 1’ (2000) 20(4) Oxford Journal of Legal Studies 597, 607; Lee (n 36); Hong and You (n 36).

42. Hong and You (n 36) 418.

43. See, eg, Ayres and Braithwaite (n 29) 54–5; Toni Makkai and John Braithwaite, ‘In and Out of the Revolving Door: Making Sense of Regulatory Capture’ (1992) 12(1) Journal of Public Policy 61; Dorit Rubinstein Reiss, ‘The Benefits of Capture’ (2012) 47(2) Wake Forest Law Review 569.

44. Lee (n 36) 12–13, ch 9.

45. See, eg, Philip Pettit, Republicanism: A Theory of Freedom and Government (Clarendon Press, 1997) ch 2.

46. Black, ‘Proceduralizing Regulation: Part 1’ (n 41) 607.

47. For the arguments developed in full, see Lee (n 36) 209–22.

48. Ibid 225.

49. Ibid 192–204.

50. Ibid 198.

51. Ibid 12, 194, 195.

52. Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave Macmillan, 2003) 9.

53. Lee (n 36) 197–8.

54. See, eg, Mark Fenster, ‘The Opacity of Transparency’ (2006) 91(3) Iowa Law Review 885.

55. Lee (n 36) 193–4.

56. See, eg, Colin Scott, ‘Accountability in the Regulatory State’ (2000) 27(1) Journal of Law and Society 38, 41.

57. Lee (n 36) 201–3.

58. See, eg, Philip Selznick, The Moral Commonwealth: Social Theory and the Promise of Community (University of California Press, 1992); Philippe Nonet and Philip Selznick, Law & Society in Transition (Transaction Publishers, 2001).

59. Hong and You (n 36) 418.

60. Ibid 419, quoting Selznick (n 58) 338.

61. Ibid 422.

62. Ibid 420.

63. For Selznick, an institution (whether public or private) is responsive if it has integrity. However, to have integrity, the institution must have both autonomy and sensitivity to the wider environment in which it operates (ie, a capacity to ‘outreach to others’ without undermining its autonomy): Selznick (n 58) 334–45. See also Hong and You (n 36) 418–19.

64. See Ayres and Braithwaite (n 29) ch 3.

65. Hong and You (n 36) 420.

66. Ibid.

67. Ibid.

68. Ibid 421.

69. Ibid 422.

70. Ibid 423.

71. See, eg, ACMA, Guide to Developing and Varying Telecommunications Codes for Registration (September 2015) 25. Evidence that rules subsequently adopted by the industry body fail to address identified regulatory problems may also indicate that an industry body has not exercised independent judgement.

72. See, eg, above nn 29–33.

73. See above Section II(A)(1).

74. Its members provide a range of radio programming from ‘rhythms to ethnic essentials, spiritual support to racing results’ and include the Big Country Radio network, Adventist Radio Australia and Coolstream Radio: ANRA, ANRA Members (Web Page) <https://www.anra.org.au/members>.

75. It has more than 300 members which include stations such as Brisbane Youth Radio and Jewish Australian Internet Radio.

76. CRA has 260 members including 2 GB, Nova and 2Day.

77. Free TV’s members include the Seven Network, the Nine Network, Network Ten, Prime Television, WIN, Southern Cross Austereo and Imparja Television.

78. At CBAA, ‘other relevant stakeholders’ are also involved.

79. Several attempts to contact ACTA for information about its procedures were unsuccessful, and it did not participate in a round table. The inability to contact them may have been due to the June 2018 announcement of the Minister for Communications that the three remaining community television broadcasters must vacate the terrestrial spectrum by 30 June 2020: see the Hon Mitch Fifield, ‘Community Television Broadcasters Granted Two Year Licence Extension’ (Media Release, 1 June 2018)

80. See above Section I.

81. Communications Alliance Ltd, Operating Manual for the Establishment and Operation of Advisory Groups and the Development of Codes, Standards and Supplementary Documents (December 2019) s 7.1 (‘Operating Manual’).

82. See ibid ss 6–9.

83. They included Industry Code ACIF C620: Consumer Contracts (2005), Industry Code ACIFC625: Information on Accessibility Features for Telephone Equipment Code (2005) and Industry Code C637: Mobile Premium Services (2009).

84. She found that the involvement of consumer representatives on Comms Alliance working committees was a significant contributor to the legitimacy and responsiveness of the three codes in question, but written submissions made by members of the public played an insignificant role: Lee (n 36) 237.

85. Clare O’Neil, ‘New Commercial Television Industry Code of Practice’ (2016) 35(1) Communications Law Bulletin 1, 2.

86. ACMA (n 28).

87. In this article, references to ‘public’ in public communication, public input and public dialogue include citizens and consumers.

88. Gene Rowe and Lynn J Frewer, ‘A Typology of Public Engagement Mechanisms’ (2005) 30(2) Science, Technology & Human Values 251, 254–5.

89. While we have drawn heavily on the classification approach developed by Rowe and Frewer (n 87), we elected to create a fourth category of public engagement mechanisms—data collection—because of the importance of information about consumer and citizen experiences that industry bodies usually, but not exclusively, acquire from third parties, such as the Telecommunications Industry Ombud and research conducted by ACMA.

90. The term ‘rules’ is adopted here because in some instances it may be preferable for an industry body to adopt something other than a code such as an industry guideline.

91. The functions are a reflection of the different stages in the regulatory process and the various ‘duties’ of rule-makers. On the importance of stages in the regulatory process, see, eg, Julia Black, ‘Involving Consumers in Securities Regulation’ (Taskforce to Modernize Securities Regulation, 2006) 19–21. On the duties of legislators, see Luc J Wintgens, Legisprudence: Practical Reasons in Legislation (Ashgate Publishing, 2012) 294–304.

92. Comms Alliance has used certain other consumer and public engagement mechanisms outside of its rule-making activities that may have indirectly influenced its rule-making activities. For example, until 2008–09, Comms Alliance allowed consumer and/or public interest organisations to become members of its organisation.

93. Statement by a representative from an organisation whose name was withheld (Industry Round Table, 10 May 2019).

94. Consumer codes, one of three types of codes Comms Alliance has adopted, generally relate to telecommunications goods and services that are delivered to residential and small businesses customers and grant some form of rights or protections to them.

95. Interview with ACMA employees (names withheld) (Karen Lee and Derek Wilding, by phone, 22 November 2018). During the interview, we were also told that ACMA’s approach to satisfying this requirement was informed by the six general principles of consultation outlined in ACMA, Effective Consultation: The ACMA’s Guide to Making a Submission (November 2015), but this document no longer appears on ACMA’s website.

96. Since 2014, subject to some exceptions, Comms Alliance is required to publish on its website any submissions made concerning a draft code developed under Part 6 of the TA. See TA (n 3) s 119B. A similar requirement is not imposed on industry bodies that develop codes in accordance with Part 9 and Schedules 5 and 7 of the BSA (n 2) or Part 4 of the IGA (n 5), but CRA and Free TV have in recent years published the written submissions they receive.

97. This category is the same as Rowe and Frewer’s category of ‘public consultation’. Its name has been changed because the one-way nature of information flow from consumers or the public to the industry body is better captured by the term ‘input’ rather than ‘consultation’.

98. These are committees comprised exclusively of consumer and/or public stakeholder representatives who provide advice about rule development to the industry body or its working committees.

99. Meetings may be requested by employees of the industry body, the members of its rule-making committee or consumer and public interest organisations.

100. The eSafety Commissioner acquired the power to register codes in accordance with Part 5 of Schedule 5 and Part 4 of Schedule 7 of the BSA (n 2) in 2015 following the enactment of the Enhancing Online Safety for Children (Consequential Amendments) Act 2015 (Cth). Until then, ACMA was responsible for registering codes pursuant to the two schedules of the BSA. The eSafety Commissioner has not registered a code since it acquired this power.

101. As mentioned in the introduction, all applicable legislation requires the relevant regulator, before registering a code, to be satisfied that ‘members of the public have been given an adequate opportunity to comment on the code’ or that industry bodies have invited members of the public to make submissions within a specified period. However, the legislation does not refer specifically to written submissions.

102. They include network and operations codes. Network codes deal with technical matters. Operations codes govern operational relationships between members of the telecommunications industry. ACIF, Guideline: Development of Telecommunications Industry Operations Codes (March 1998) 5–6. Until 2006, Comms Alliance was known as the Australian Communications Industry Forum (ACIF).

103. Communications Alliance Ltd, Industry Consumer Advisory Group: Terms of Reference 1 <https://www.commsalliance.com.au/Activities/committees-and-groups/ICAG>.

104. Email from CBAA employee to Derek Wilding and Karen Lee, 30 May 2019.

105. Codes are drafted by working committees which may include non-industry members (eg, Comms Alliance), code review groups comprised of member representatives (eg, Free TV) and industry body secretariats (eg, ANRA). Some secretariats are advised by code advisory committees (eg, CBAA).

106. Operating Manual (n 80) s 11.4(a).

107. This category of mechanism is the same as Rowe and Frewer’s category of the same name. See Rowe and Frewer (n 87) 255–6.

108. For more on Comms Alliance’s rule-making framework, see Operating Manual (n 80).

109. Statement by a Comms Alliance representative (Industry Round Table, 10 May 2019).

110. This mechanism has been placed in the category of public dialogue because ACCAN frequently provides the feedback in the course of discussion with industry members of Comms Alliance working committees.

111. Telecommunications Consumer Protections Code (C628:2015 (incorporating variation no 1 2016)) was the edition of the TCP Code subject to this review.

112. Ayres and Braithwaite (n 29) ch 4.

113. See, eg, Charles F Sabel and Jonathan Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’ (2008) 14(3) European Law Journal 271, 308.

114. Lee (n 36) 167–206, 226–37.

115. As noted above, conclusions concerning consideration are difficult to make because of the lack of data.

116. They included three newspaper advertisements, placed by Comms Alliance, FACTS and CRA, soliciting public comment on draft codes; a public comment explanatory statement, published by Comms Alliance, that accompanied a draft TCP Code; and the ‘consultation package’ Free TV issued in November 2018 in relation to the draft code provisions banning gambling advertising in live sport.

117. In the last few years, ACMA has supported the publicity efforts of Comms Alliance, CRA, Free TV and other industry bodies by issuing press releases about, and advertising, opportunities to make written submissions on draft codes on its website and social media channels.

118. Karen Lee and Derek Wilding, Industry Bodies and Schemes in the Communications Sector: Rule-Making Frameworks and Consumer and Citizen Engagement (Supplementary Report, November 2019) 42.

119. ACMA, ‘Improved Community Safeguards in Codes for Subscription Television and Radio Industry’ (Media Release 84/2-13, 7 November 2013).

120. For example, the ACCAN representative emphasised that the TIO data ‘can provide a false picture of what’s really happening’ because it reflects the number of ‘escalated’ complaints—complaints that individuals have been unable to resolve with their telecommunications providers—and not the total number of complaints made to the industry.

121. In 2018–19, the TIO received a total of 132,387 complaints, a figure that was 21.1 per cent lower than in 2017–18: TIO, Annual Report 2018–19 (Report, 25 September 2019) 13.

122. In 2018–19, ACMA conducted 21 investigations in response to complaints about traditional broadcasters. See ACMA and Office of the eSafety Commissioner, Annual Reports 2018–19 (Report, 15 October 2019) 108–120. Each investigation was triggered by at least one complaint made to ACMA, but we could not determine the total number of complaints received by ACMA.

123. Cynthia R Farina, Mary J Newhart and Josiah Heidt, ‘Rulemaking vs Democracy: Judging and Nudging Public Participation That Counts’ (2012) 2 Michigan Journal of Environmental and Administrative Law 123, 128–9.

124. See, eg, Nina Mendelson, ‘Rulemaking, Democracy, and Torrents of Email’ (2011) 79 George Washington Law Review 1343.

125. Farina, Newhart and Heidt (n 122) 140–1 (emphasis in original).

126. Ibid 148 (emphasis omitted).

127. Farina et al, ‘Democratic Deliberation in the Wild’ (n 23) 1550.

128. Ibid 1553.

129. Ibid 1559.

130. Ibid 1564.

131. See, eg, the Department of the Prime Minister and Cabinet, Best Practice Consultation Guidance Note (March 2020) 7–9.

132. Farina et al, ‘Democratic Deliberation in the Wild’ (n 23) 1567.

133. Statement by an ACCAN representative (Consumer Round Table, 9 May 2019).

134. Statement by a representative from an organisation whose name was withheld (Consumer Round Table, 9 May 2019).

135. Ibid.

136. Ibid.

137. Ibid.

138. Ibid.

139. Payment of travel costs was not raised as a concern by Consumer Round Table participants as industry bodies such as Comms Alliance have typically paid for such costs for consumer organisations where travel to code-related meetings was necessary.

140. For example, the Free TV representative observed that placing newspaper advertisements inviting written submissions on its draft code cost approximately $20,000.

141. Statement by a representative from an organisation whose name was withheld (Consumer Round Table, 9 May 2019).

142. BSA (n 2) s 148.

143. At the time of writing, nine Part 6 codes have conferred powers on the TIO. Section 114(1) of the TA (n 3) stipulates the TIO must consent to the conferral of such powers.

144. All carriage service providers who supply the following services are required under statute to participate in the TIO’s complaints resolution scheme: standard telephone services used by residential and small business customers, public mobile telecommunications services and carriage services that enable end-users to access the internet. See Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) ss 127–8(1).

145. See TA (n 3) ss 508–9.

146. Internet Industry Association, Interactive Gambling Industry Code: A Code for Industry Co-regulation in the Area of Internet Gambling Content (December 2001).

147. IGA (n 5) s 17.

148. Internet Industry Association, Codes for Industry Co-Regulation in Areas of Internet and Mobile Content (May 2005).

149. BSA (n 2) sch 5 pt 5 cl 62.

150. Internet Industry Association, Content Services Code (10 July 2008).

151. BSA (n 2) sch 7 pt 4 cl 85.

152. See BSA (n 2) sch 5 pt 4 div 1 cl 23, sch 7 pt 3 div 1 cl 38(2).

153. Karen Lee and Derek Wilding, Responsive Engagement: Involving Consumers and Citizens in Communications Industry Rule-Making (Report, November 2019) 25.

154. See, eg, Steven Van Roosbroek and Steven Van de Walle, ‘The Relationship between Ombuds, Government and Citizens: A Survey Analysis’ (2008) 24(3) Negotiation Journal 287; Marc Hertogh, ‘Why the Ombuds Does Not Promote Public Trust in Government: Lessons from the Low Countries’ (2013) 35(2) Journal of Social Welfare and Family Law 245, 253; Naomi Creutzfeldt, ‘What Do We Expect from an Ombuds? Narratives of Everyday Engagement with the Informal Justice System in Germany and the UK’ (2016) 12(4) International Journal of Law in Context 437, 442.

155. Hertogh (n 153) 246.

156. This information includes their geographic location (ie, the state or territory in which they live and whether they reside in major cities, regional and remote areas) and if they are residential, small business or not-for-profit consumers.

157. Statement by an ACMA representative (Regulator Round Table, 9 May 2019). His opinion does not necessarily represent ACMA’s view.

158. Conversation with a TIO representative who attended the Regulator Round Table (Karen Lee, by phone, 18 March 2020).

159. Carol Brennan et al, ‘Consumer Vulnerability and Complaint Handling: Challenges, Opportunities and Dispute System Design’ (2017) 41(6) International Journal of Consumer Studies 638–9.

160. Farina et al, ‘Democratic Deliberation in the Wild’ (n 23) 1544–53, 1556–8, 1560–4, 1565–6; Farina, Newhart and Heidt (n 122) 147–71.

161. See Farina et al, ‘Democratic Deliberation in the Wild’ (n 23); Farina, Newhart and Heidt (n 122); Cynthia R Farina et al, ‘Rulemaking 2.0’ (2011) University of Miami Law Review 395; Cynthia R Farina and Mary J Newhart, ‘Rulemaking 2.0: Understanding and Getting Better Public Participation’ (Paper No 15, Cornell e-Rulemaking Initiative Publications, 2013).

162. Information triage involves identifying the information citizens need to comment effectively and structuring it accordingly. Translation requires rewriting information in plain English, using short sentences and avoiding jargon and technical terminology. For more information about these and other techniques, see Farina et al, ‘Democratic Deliberation in the Wild’ (n 23) 1556–8. See also Farina and Newhart (n 160) 21–37.

163. See above nn 23, 122, 159.

164. See, eg, Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438; Brennan et al (n 158) 642–3.

165. See above nn 23, 122, 159.

166. Bernard Hubeau, ‘The Profile of Complainants: How to Overcome the “Matthew Effect”?’ in Marc Hertogh and Richard Kirkham (eds), Research Handbook on the Ombuds (Edward Elgar, 2018) 259, 273. See also Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014) vol 1, 326–34.

167. Winangali Indigenous Communications and Research, Improving the Services of the Commonwealth Ombuds to Australia’s Indigenous Peoples (Report, November 2010) 26.

168. See, eg, Productivity Commission, Consumer Law Enforcement and Administration (Final Report, March 2017) 217.

169. For example, pursuant to a five-year funding agreement, ACCAN received $2,296,000 (excluding GST) from the federal government in 2018–19, but this funding is recovered from charges on telecommunications carriers, not consolidated revenue. See Department of Communications and the Arts, Funding of Telecommunications Consumer Representation Grants: Annual Report 2018–19 (December 2019) 4.

170. Ayres and Braithwaite (n 29) 83.

171. Statement by a representative from an organisation whose name was withheld (Consumer Round Table, 9 May 2019).

172. Ibid.

173. For an explanation of this mechanism, see Gary E Marchant and Andrew Askland, ‘GM Foods: Potential Public Consultation and Participation Mechanisms’ (2003) 44(1) Jurimetrics 99, 120–2.

174. See Robert Hahn, Robert Metcalfe and Florian Rundhammer, ‘Promoting Customer Engagement: A New Trend in Utility Regulation’ (2020) 14(1) Regulation & Governance 121, 129–36.

175. For an explanation of this mechanism, see James S Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford University Press, 2009) 25–6.

176. Robert C Luskin, James S Fishkin and Dennis L Plane, Deliberative Polling and Policy Outcomes: Electric Utility Issues in Texas (Paper, Annual Meeting of the Association for Public Policy Analysis and Management, 4–7 November 1999) 3 <https://cdd.stanford.edu/wp-content/plugins/pdfjs-viewer-shortcode/pdfjs/web/viewer.php?file=/mm/2000/utility_paper.pdf&download=true&print=true&openfile=tru>.

177. Further research (which is outside the scope of this article) is required before a citizen jury and/or a deliberative poll could be designed for use in the context of industry rule-making.

178. See also Lee (n 36) 230–2; Ayres and Braithwaite (n 29) chs 3 and 4.

179. Lee (n 36) 230–1.

180. See above n 156.

181. Statement by a Comms Alliance representative (Industry Round Table, 10 May 2019).

182. ACCAN, Quarter 2, FY19–20 (Report, undated).

183. Department of Communications and the Arts, Review of Consumer Representation: Review of Section 593 of the Telecommunications Act 1997: Final Report (February 2017) 8.

184. With some possible exceptions, such as the Consumer Policy Research Centre, existing generalist bodies and associations such as the Public Interest Advocacy Centre and Human Rights Law Centre in Victoria have not been heavily involved in communications-related debates.

185. ACCAN is funded to represent consumers of telecommunications and internet services. With the exception of direct carrier billing, it does not focus on the customer-related aspects of content service provision (eg, billing and complaint handling) across distribution platforms. It does not become involved in debates relating to content regulation.

186. Statement by a Country Women’s Association representative (Consumer Round Table, 9 May 2019).

187. On the importance of contestability and public interest groups, see Ayres and Braithwaite (n 29) 57.

188. See ACMA, Impartiality and Commercial Influence in Broadcast News: Discussion Paper (January 2020). Although ACMA has conducted audience research in the past, this has almost exclusively related to rules it formulates itself.

189. The concept of harm is used in competition and consumer law as well as regulation in Australia and worldwide. See, eg, KJ Cseres, ‘The Controversies of the Consumer Welfare Standard’ (2007) 3(2) Competition Law Review 121; Regulating Harms (n 1) 22–3.

190. But see Lee (n 36) ch 8.

191. Ayres and Braithwaite (n 29) 83.