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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

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

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

  2. 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

  3. The tube of toothpaste analogy

  4. Constraints on Discretion

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

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

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

  8. Procedural Discretion Industry Groups’ Submissions

  9. Procedural Discretion continued

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

  11. 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)

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

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