Discretion and Public Benefit in a Regulatory Agency

Discretion and Public Benefit in a Regulatory Agency: The Australian Authorisation Process

Vijaya Nagarajan
Copyright Date: 2013
Published by: ANU Press
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  • Book Info
    Discretion and Public Benefit in a Regulatory Agency
    Book Description:

    This book explores the manner in which a variety of public benefits such as environmental protection and consumer safety have been accommodated through the authorisation process within competition law and policy in Australia. While the regulator’s use of its discretion can be explained as a triumph of practice over theory, this book explores the potential for competition principles to be imbued by the wider discourses of democratic participation and human rights. In doing so it makes a significant contribution to the Australian competition policy as well as reconceptualising the way in which discretion is used by regulators. "… a very important and creative contribution to the literatures on both business regulation in general and Australian competition and consumer protection law in particular. It pays special attention to an everyday regulatory function that is often ignored in scholarship. And it is very important in challenging—on both empirical and normative policy oriented grounds—a narrowly economic approach to competition law, and proposing an alternative understanding and practice for the public benefit test in ACCC authorisations." - Professor Christine Parker "The data Vij Nagarajan has analysed is quite unique in its focus. It is a kind of data and analysis that has not been completed before in the international literature. It is well written, theoretically sophisticated and incisive in its policy analysis." - John Braithwaite

    eISBN: 978-1-922144-36-2
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
  4. Acknowledgements
    (pp. ix-x)
  5. 1. Competition Policy and the Authorisation Process
    (pp. 1-12)

    Competition law in Australia is spelt out in the Competition and Consumer Act 2010 (Cth) and its predecessor the Trade Practices Act 1974 (Cth). It is enforced by the competition watchdog, the Australian Competition and Consumer Commission (ACCC). The competition law provisions that are most familiar to people are those prohibiting mergers, cartel conduct and the proposed criminal penalties for cartel conduct. Much more important and much less well known, however, are the authorisation provisions within the Act. A significant part of the ACCC’s work is geared to granting such authorisations. These provisions allow the ACCC to grant immunity from...

  6. 2. Architecture of Authorisations
    (pp. 13-44)

    This chapter looks at the origins of the authorisation process, examining the period from the early twentieth century until 2010, when the new Competition and Consumer Act 2010 (Cth) was introduced. The design of the authorisation process within the Trade Practices Act 1974 (Cth) can only really be understood by looking at the extended context. We should look particularly to the early 1960s to glean a better understanding of the place and architecture of the authorisation process. This was the time that the business and general community began to engage in a discourse about restrictive trade practices, setting the stage...

  7. 3. Discourses on Public Benefit
    (pp. 45-86)

    This chapter looks at the place of ‘public benefit’ within Australian competition legislation, before examining each of the words ‘public’ and ‘benefit’ in the phrase and then considers the types of public benefits that the Australian Competition and Consumer Commission (ACCC) has recognised over the last four decades. Although the interpretation of both these terms has not been straightforward, the ACCC has in practice recognised a wide range of public benefits based on promoting economic efficiency as well as those concerned with social and environmental benefits. The authorisation determinations can be understood in their political and social context. Whereas the...

  8. 4. Types of Public Benefit
    (pp. 87-128)

    This chapter builds on the discussion in the last chapter by examining in detail the types of public benefits that have been recognised in Australian Competition and Consumer Commission (ACCC) determinations. The discussion is divided into three main sections. The first part deals with economic efficiency benefits, the second examines non-economic efficiency benefits, and the third part looks at specific areas where public benefit analysis is more complex, defying easy categorisation. It is clear from this that ACCC authorisation determinations have become more myopically focused on efficiency. Although economic efficiency concerns have always focused the regulator’s attention, reflecting the rise...

  9. 5. Discourses on Discretion and the Regulatory Agency
    (pp. 129-168)

    The authorisation process is a complex one that relies on the exercise of discretion. Those of the epistemic trade practices and competition policy community will understand how this discretion may be used and the outcomes it can deliver. But for others, the process is opaque. While legal and institutional factors can limit the exercise of discretion, so too can the regulatory strategies relied on. The Australian Competition and Consumer Commission’s (ACCC) strategies have embraced many of the principles of responsive regulation, which rest on wide discretionary powers, and which, although difficult to contain, deliver many positive outcomes.

    Discretion here is...

  10. 6. Discretion, the ACCC and Authorisation Determinations
    (pp. 169-212)

    This chapter examines the use of discretion by the Australian Competition and Consumer Commission (ACCC), which, it argues, comes in many forms. Four types of discretion are conceptualised: epistemological, procedural, outcome weighting and immunity discretion. While epistemological discretion is related to the information considered, procedural discretion focuses on who is participating in these deliberations, outcome-weighting discretion looks at how discretion can be directed to specific results, and immunity discretion relates to the variety of ways to manage the issue at hand without necessarily making a specific decision. Although the ACCC has used all these forms of discretion to operate innovatively,...

  11. 7. Experiments in Discretion: How Effective is the Regulator?
    (pp. 213-256)

    This chapter acts as a conclusion by bringing together the earlier discussions on discretion and public benefit in the Australian Competition and Consumer Commission (ACCC) and directly addressing the central question of how effective the ACCC has been in exercising its discretion to determine public benefit. The data have been interpreted to reveal two areas where there have been limits to this effectiveness: first, the current ad hoc approach could be improved by developing a broader framework for determining public benefit; second, strategies to increase the participation of non-industry groups in the decision process could be refined and developed. This...

  12. Appendix
    (pp. 257-260)
  13. References
    (pp. 261-286)