Four Types OF DISCRETION 23 May 2012 Seminar Series University of Western Sydney

Vijaya Nagarajan Macquarie Law School Macquarie University Four Types OF DISCRETION 23 May 2012 Seminar Series University of Western Sydney

Overview • Discretion • legal and socio/political meanings • Constraints • Case Study - ACCC, the Authorisation Process and Discretion • Four Types of Discretion • Epistemological • Procedural • Outcome weighing • Immunity • Your comments

The tube of toothpaste analogy

Constraints on Discretion

The ACCC Authorisation & Discretion • Competition Policy • Authorisations • Public Benefit outweighs public detriment • Public Benefit - involves discretion

Four Types of Discretion • Epistemological • Procedural • Outcome weighing • Immunity

Epistemological Discretion • Quantification of Public Benefits and its place • Measuring Public Benefits • Total welfare • Consumer welfare • Price Standard • Balancing Weights

Procedural Discretion Industry Groups’ Submissions

Procedural Discretion continued

Procedural Discretion continued Pre Decision Conferences • Fairness • Bias • Consistency • Representation • Restorative justice

Outcome Weighing Discretion Conditions Power “Does not mean that there is an unconfined discretion to impose whatever conditions the ACCC ...considers appropriate” ACT in Medicines Authorisation (2003)

Immunity Discretion • Guide to Authorisations to give information • Consultations to increase familiarity • Conferences at industry forums to gain commitment • Periods of grace from prosecution

Four Types OF DISCRETION 23 May 2012 Seminar Series University of Western Sydney