Students

LAWS820 – Competition Law

2015 – S1 External

General Information

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Unit convenor and teaching staff Unit convenor and teaching staff Unit Convenor
Susan Carter
susan.carter@mq.edu.au
Contact via susan.carter@mq.edu.au
515 W3A
Friday 3-4p.m. or at any time by email
Credit points Credit points
4
Prerequisites Prerequisites
(16cp in LAW or LAWS units at 600 level or above) and (admission to JD or LLM or GradCertLaw or GradDipLaw)
Corequisites Corequisites
Co-badged status Co-badged status
Unit description Unit description
This unit examines the competition law provisions of the Competition and Consumer Act 2010 (Cth). The unit considers the policy framework behind the law, including Australia's National Competition Policy, and the current policy debates surrounding the regulation of competition. Topics include the regulation of cartels, anti-competitive arrangements and understandings, and abuse of market power. Considerable time is spent reading and interpreting statutes and on the administration of schemes of government regulation.

Important Academic Dates

Information about important academic dates including deadlines for withdrawing from units are available at https://www.mq.edu.au/study/calendar-of-dates

Learning Outcomes

On successful completion of this unit, you will be able to:

  • Understand the scope of the Competition and Consumer Act 2010 (Cth)('the Act') and examine the key competition provisions in detail; consider the relation between the competition and consumer provisions; build an awareness of the Constitutional issues influencing its design; and how an Application scheme operates to address these Constitutional issues.
  • Critically appraise the Act, considering: whether it achieves its stated aims; the difficulties of translating policy into legislation; and the tensions between competing aims in the legislation.
  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Apply the Act to solve problems in competition law.
  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Assessment Tasks

Name Weighting Due
Seminar presentation 15% On campus session
Class Test 15% Week Five Tutorials/OCS
Assignment 40% 8/4/15 at 5 p.m.
Take home 30% 11/6/15 at 5 p.m.

Seminar presentation

Due: On campus session
Weighting: 15%

Students will, either individually or in small groups (depending on class size - at the discretion of the convenor, not the student), make one oral presentation each in class, at the on campus session.

The presentation:

  • Should be no more than 15 minutes
  • May be accompanied by powerpoint slides or other appropriate resources
  • Will be done in small groups - and the group will be expected to work together to complete the presentation.
  • Will focus on a current news item raising an issue of interest in the area of Competition Law and related to what we are discussing in class
  • Will:
    • Outline the news item
    • Identify the relevant legal issues raised by the item
    • Identify any policy issues raised
    • Demonstrate an awareness of the current issues for debate; and
    • Encourage class discussion
On successful completion you will be able to:
  • Critically appraise the Act, considering: whether it achieves its stated aims; the difficulties of translating policy into legislation; and the tensions between competing aims in the legislation.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Class Test

Due: Week Five Tutorials/OCS
Weighting: 15%

The Class Test will be of 60 minutes duration and consist of one problem question about an aspect of competition law. It will be completed by students in their regular tutorial time.Students may bring a copy of the legislation and one A4 page of their own notes (front and back, at least 10 point font), but no other materials. Students should also bring their own paper to complete the task.
On successful completion you will be able to:
  • Understand the scope of the Competition and Consumer Act 2010 (Cth)('the Act') and examine the key competition provisions in detail; consider the relation between the competition and consumer provisions; build an awareness of the Constitutional issues influencing its design; and how an Application scheme operates to address these Constitutional issues.
  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Apply the Act to solve problems in competition law.

Assignment

Due: 8/4/15 at 5 p.m.
Weighting: 40%

 

Research Assignment

The Competition Policy Review (the Harper Review) issued a draft report in September 2014 (http://competitionpolicyreview.gov.au/files/2014/09/Competition-policy-review-draft-report.pdf). Among its many recommendations is a change to s46 which would remove the ‘take advantage’ requirement (‘the proposal’). Its reasons are expressed as follows, at p209 of the Draft Report:

The important point is not whether the outcomes of those cases, on the facts before the court, were correct or incorrect from a competition policy perspective. The issue is whether the ‘take advantage’ limb of section 46 is sufficiently clear and predictable in interpretation and application to distinguish between anti-competitive and pro-competitive conduct.

The cases referred to by the authors of the Draft Report were:

  • Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13.
  • Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374.
  • Rural Press Limited v ACCC [2003] HCA 75.
  • ACCC v Cement Australia [2013] FCA 909

You need to complete the following tasks :

  1. Read one of the cases listed above and write a case note focusing on the s46 issues and the ‘take advantage’ discussion.  Your case note should identify any problems with the take advantage criterion arising as a result of your chosen decision. It may also include any legislative response to this decision.
  2. Critically discuss the proposal. In particular consider whether the take advantage criterion is being removed altogether, or reconfigured as a defence.
  3. Consider one submission made in response to the proposal and assess the strength of the argument in light of the proposal.
  4. Outline any changes made in the Final Report to the proposal in response to submissions received.

Allocation of marks

Allocation of marks (and a suggestion as to allocation of words) is as follows:

  1. 10 marks – suggested no more than 750 words
  2. 15 marks – suggested no more than 1,000 words
  3. 10 marks – suggested no more than 750 words
  4. 5 marks – suggested no more than 500 words.

Total word limit: no more than 3,000 words - excluding references. (Note: references are excluded, not footnotes. If footnotes contain argument they will be included in the word count. Penalties apply for exceeding the word limit.)

Further instructions:

You should provide an integrated discussion of the issues, raised, well supported by appropriate legal references. Your work should not be presented in point form and all standard conventions of grammar and spelling should be observed.

  • Referencing should be in accordance with AGLC 3.
  • Please use a font size no smaller than 12 point font. Headings and sub-headings may be used as appropriate to assist in the clear structure of your argument.
  • All assignments are to be submitted through the Turnitin portal on the ilearn webpage.

Late Submission and extensions

Law School Policy is that late submissions will not be marked and students will receive a mark of zero - unless prior dispensation has been sought and received in accordance with the disruption to studies policy.

Ample time has been made available for the completion of this assignment. Accordingly, last minute illness or misadventure is unlikely to meet the requirements for special consideration. If you are applying for special consideration, please submit your work in progress through Turnitin with a note that an application for special consideration has been lodged.

Grading Criteria: please see this Unit Guide for grading criteria.

 
On successful completion you will be able to:
  • Critically appraise the Act, considering: whether it achieves its stated aims; the difficulties of translating policy into legislation; and the tensions between competing aims in the legislation.
  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Take home

Due: 11/6/15 at 5 p.m.
Weighting: 30%

The take home will consist of one hypothetical problem question which may raise any issues discussed in the course.

Word length: 2000 words.

Footnotes: As this task is in lieu of a formal exam there is no need for footnotes or AGLC referencing. However all cases and legislation should be referenced in appropriate exam style (that is short name, no need for full citation), and if footnotes are included they will be counted in the word length.

Release date: the Take home will be released on the Unit web site on Monday 8th June

Students will have four days to complete this task. This is not an indication of the length or complexity of the task - if students are well prepared they should be able to complete the task in 4-5 hours. The extended time period allows students to plan the completion of this task around their other commitments. This should obviate the need for any requests for extensions - which are unlikely to be given.
On successful completion you will be able to:
  • Understand the scope of the Competition and Consumer Act 2010 (Cth)('the Act') and examine the key competition provisions in detail; consider the relation between the competition and consumer provisions; build an awareness of the Constitutional issues influencing its design; and how an Application scheme operates to address these Constitutional issues.
  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Apply the Act to solve problems in competition law.

Delivery and Resources

DELIVERY

This course is delivered via on-line lecture and a compulsory on campus session. Students are expected to have listened to and considered the on-line lectures BEFORE they attend the on campus session, and are encouraged to do this on a weekly basis. 

Weekly lectures in this unit will be pre-recorded and available to students on iLearn. These will commence in Week 1 and go through to Week 12. 

Students are reminded that if they have not completed the ilecture prior to the on campus session they will not understand the discussion, will not benefit from it, and will not be able to participate in the discussion.

TECHNOLOGY

Students are encouraged to check the unit webpage regularly, which can be accessed through http://ilearn.mq.edu.au Unit materials, including seminar discussion questions, are available through the unit webpage. 

The assignment and the take home exam are to be submitted using the Turnitin portal on the unit webpage.

PC and internet access are required, as are basic computer and word processing skills.

 

REQUIRED READING

Texts 

·        Corones, SG Competition Law in Australia 6th edition (Thomson Reuters, 2014) 

Legislation

  • You will need access to the Competition and Consumer Act 2010 (Cth). The versions on line are always up to date, but not as helpful as the printed, annotated legislation. Two versions of the annotated legislation are available - one by Miller and one by Steinwall. Both are excellent, and it will be advantageous if you obtain a copy of the annotated legislation of your choice. Second hand copies are available, but as the legislation changes frequently, any annotated legislation older than 2012 will be of little use.

RECOMMENDED READING

  • Bruce, Alex Australian Competition Law 2nd edition Lexis Nexis

  • Bruce, Alex Consumer Protection Law in Australia 2nd edition Lexis Nexis

  • Corones SG, Clarke PH, Australian Consumer Law, Law Book Co 2011

Useful websites

 GRADING CRITERIA

GRADING CRITERIA FOR INDIVIDUAL ASSESSMENTS

 

1.    ASSESSMENT CRITERIA FOR ASSIGNMENT 

FAIL (49% AND BELOW)

  • does not answer question;
  • few if any identifiable arguments;
  • inappropriate and/or irrelevant content;
  • plagiarism, use of other students’ work, ‘recycling’ own work from other units;
  • difficult to read and/or understand through poor grammar, spelling, expression or structure.

PASS (50% - 64%)

  • attempts to answer question, but does not answer the entire question, or follow through with reasoned argument;
  • does not demonstrate engagement with the issues;
  • descriptive summary of material relevant to question;
  • superficial use of material and tendency to paraphrase and/or quote heavily;
  • minimal analysis and evaluation;
  • adequate expression.

CREDIT (65%-74%)

  • mostly answers the question;
  • contains no significant errors and covers relevant issues fairly well;
  • articulates own argument including critical evaluation of the issues;
  • good use of material relevant to question;
  • has clear structure and clear expression

DISTINCTION (75%-84%)

  • completely answers the question;
  • articulates own argument including critical evaluation of the issues;
  • excellent use of material relevant to question;
  • excellent expression and free from errors

HIGH DISTINCTION (85% and above)

  • satisfies all the criteria for a Distinction; and
  • contains striking originality in analysis;
  • innovative use of material relevant to the question;
  • exceptionally well written and exceptionally well-structured.

2.    ASSESSMENT CRITERIA FOR PROBLEM QUESTIONS

FAIL (49% AND BELOW)

  • fails to identify  and discuss relevant issues of law raised by facts;
  • contains incorrect statements of law;
  • does not provide relevant authorities for propositions of law;
  • inappropriate and/or irrelevant content;
  • plagiarism, use of other students’ work, ‘recycling’ own work from other units;
  • difficult to read and/or understand through poor grammar, expression or structure
  • fails to comply with formatting instructions.                                    

PASS (50% - 64%)

  • correctly identifies and discusses a limited number of issues of law raised by the facts
  • contains no significant errors of law;
  • provides correct authorities for propositions of law;
  • attempts to apply relevant law to the given facts;
  • adequate expression.

CREDIT (65%-74%)

  • correctly identifies and discusses most of the issues of law raised by the facts;
  • contains no errors of law;
  • provides correct authorities for propositions of law;
  • successfully applies relevant law to the given facts;
  • identifies differences between facts in the question and fact patterns in cases, and attempts to discuss relevance of this to the solution;
  • identifies discrepancies/inconsistencies within the law, and attempts to resolve these where they are relevant to the given facts;
  • attempts to explain which outcome is more likely where there is more than 1 possible solution to the problem;
  • has clear structure and clear expression

DISTINCTION (75%-84%)

  • correctly identifies and discusses all of the issues of law raised by the facts;
  • contains no errors of law
  • provides correct authorities for propositions of law;
  • successfully applies relevant law to the given facts;
  • identifies differences between facts in the question and fact patterns in cases, and successfully discusses the relevance of this to the solution;
  • identifies discrepancies/inconsistencies within the law,  and successfully resolves these where they are relevant to the given facts;
  • successfully explains which outcome is more likely where there is more than 1 possible solution to the problem;
  • has very clear structure and clear expression

HIGH DISTINCTION (85% and above)

  • satisfies all the criteria for a Distinction;
  • is exceptionally well written and exceptionally well-structured.
  • demonstrates superior and original analytical skills.  

3.    ASSESSMENT CRITERIA FOR SEMINAR PRESENTATION 

FAIL (49% AND BELOW)

  • does not relate item to legal issue;
  • few if any identifiable arguments;
  • inappropriate and/or irrelevant content;
  • plagiarism, use of other students’ work, ‘recycling’ own work from other units;
  • relying on the work of other group members rather than making own contributions;
  • difficult to understand through poor grammar, expression or structure.

PASS (50% - 64%)

  • attempts to address legal issues raised by item, but does not address all legal issues or follow through with reasoned argument;
  • does not demonstrate engagement with the issues;
  • descriptive summary of material relevant to question;
  • superficial use of material and tendency to paraphrase and/or quote heavily;
  • minimal analysis and evaluation;
  • adequate expression.

CREDIT (65%-74%)

  • mostly develops the legal issue raised by the item;
  • contains no significant errors and covers relevant issues fairly well;
  • articulates own argument including critical evaluation of the issues;
  • good use of material relevant to question;
  • has clear structure and clear expression

DISTINCTION (75%-84%)

  • completely discusses the relevant legal issue;
  • articulates own argument including critical evaluation of the issues;
  • excellent use of material relevant to question;
  • excellent expression and free from errors

HIGH DISTINCTION (85% and above)

  • satisfies all the criteria for a Distinction; and
  • contains striking originality in analysis;
  • innovative use of material relevant to the question;
  • exceptionally well expressed and exceptionally well-structured.                                 

LATE SUBMISSION

Law School Policy is late submissions will not be marked and will be given zero, unless prior dispensation has been sought and received, in accordance with the special consideration policy.

EXTENSIONS

Extensions are only available in extraordinary circumstances in accordance with the Disruption to Studies Policy:  http://www.mq.edu.au/policy/docs/disruption_studies/policy.html 

 

 

Unit Schedule

Week/Lecture Date

Lecture Content

Assessment

Week 1

27th February

 Introduction to the Unit, Statutory Interpretation, History of Competition regulation; relation to consumer protection and the design of the Competition and Consumer Act 2010(Cth) Regular lecture attendance is a continuing unit requirement (Attendance means on-line attendance - listening to the lecture and completing associated reading before the seminar)

Week 2

6th March

Key ideas in competition regulation

 Regular lecture attendance is a continuing unit requirement

Week 3

13th March

 Regulating collusion and cartels Regular lecture attendance is a continuing unit requirement

Week 4

20th March

 Cartel Regulation continued

Regular lecture attendance is a continuing unit requirement

 

Week 5

27th March

s46: Misuse of Market Power  

 Regular lecture attendance is a continuing unit requirement

Week 6

3rd April

 

Misuse of Market Power continued; Exclusive Dealing

 

 

 Regular lecture attendance is a continuing unit requirement
  ASSIGNMENT DUE - 8TH APRIL AT 5 PM  

Week 7

24th  April

 Resale Price Maintenance and Mergers and Acquisitions

Regular lecture attendance is a continuing unit requirement

 

Week 8

1st May

 Authorisation and Notification - role of ACCC as administrator of CCA  Regular lecture attendance is a continuing unit requirement

Week 9

8th May

Remedies - issues with penalties; criminal conduct and divestiture

 

 Regular lecture attendance is a continuing unit requirement

Week 10

15th May

 Unconscionable conduct - issues re enforcement of s46 and relationship to competition law Regular lecture attendance is a continuing unit requirement

Week 11

22nd May

 Misleading and deceptive conduct - issues for competition law Regular lecture attendance is a continuing unit requirement

Week 12

29th May

 Current issues - Matters arising from the Harper Review Regular lecture attendance is a continuing unit requirement

Week 13                  

5th June           

No lecture this week but

seminars   

continue

                                                             

Take Home Exam

Available Monday 8th June

Due Thursday 11th June

Policies and Procedures

Macquarie University policies and procedures are accessible from Policy Central. Students should be aware of the following policies in particular with regard to Learning and Teaching:

Academic Honesty Policy http://mq.edu.au/policy/docs/academic_honesty/policy.html

Assessment Policy  http://mq.edu.au/policy/docs/assessment/policy.html

Grading Policy http://mq.edu.au/policy/docs/grading/policy.html

Grade Appeal Policy http://mq.edu.au/policy/docs/gradeappeal/policy.html

Grievance Management Policy http://mq.edu.au/policy/docs/grievance_management/policy.html

Disruption to Studies Policy http://www.mq.edu.au/policy/docs/disruption_studies/policy.html The Disruption to Studies Policy is effective from March 3 2014 and replaces the Special Consideration Policy.

In addition, a number of other policies can be found in the Learning and Teaching Category of Policy Central.

Student Code of Conduct

Macquarie University students have a responsibility to be familiar with the Student Code of Conduct: https://students.mq.edu.au/support/student_conduct/

Results

Results shown in iLearn, or released directly by your Unit Convenor, are not confirmed as they are subject to final approval by the University. Once approved, final results will be sent to your student email address and will be made available in eStudent. For more information visit ask.mq.edu.au.

Student Support

Macquarie University provides a range of support services for students. For details, visit http://students.mq.edu.au/support/

Learning Skills

Learning Skills (mq.edu.au/learningskills) provides academic writing resources and study strategies to improve your marks and take control of your study.

Student Services and Support

Students with a disability are encouraged to contact the Disability Service who can provide appropriate help with any issues that arise during their studies.

Student Enquiries

For all student enquiries, visit Student Connect at ask.mq.edu.au

IT Help

For help with University computer systems and technology, visit http://informatics.mq.edu.au/help/. 

When using the University's IT, you must adhere to the Acceptable Use Policy. The policy applies to all who connect to the MQ network including students.

Graduate Capabilities

PG - Discipline Knowledge and Skills

Our postgraduates will be able to demonstrate a significantly enhanced depth and breadth of knowledge, scholarly understanding, and specific subject content knowledge in their chosen fields.

This graduate capability is supported by:

Learning outcomes

  • Understand the scope of the Competition and Consumer Act 2010 (Cth)('the Act') and examine the key competition provisions in detail; consider the relation between the competition and consumer provisions; build an awareness of the Constitutional issues influencing its design; and how an Application scheme operates to address these Constitutional issues.
  • Critically appraise the Act, considering: whether it achieves its stated aims; the difficulties of translating policy into legislation; and the tensions between competing aims in the legislation.
  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Apply the Act to solve problems in competition law.
  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Assessment tasks

  • Seminar presentation
  • Class Test
  • Assignment
  • Take home

PG - Critical, Analytical and Integrative Thinking

Our postgraduates will be capable of utilising and reflecting on prior knowledge and experience, of applying higher level critical thinking skills, and of integrating and synthesising learning and knowledge from a range of sources and environments. A characteristic of this form of thinking is the generation of new, professionally oriented knowledge through personal or group-based critique of practice and theory.

This graduate capability is supported by:

Learning outcomes

  • Understand the scope of the Competition and Consumer Act 2010 (Cth)('the Act') and examine the key competition provisions in detail; consider the relation between the competition and consumer provisions; build an awareness of the Constitutional issues influencing its design; and how an Application scheme operates to address these Constitutional issues.
  • Critically appraise the Act, considering: whether it achieves its stated aims; the difficulties of translating policy into legislation; and the tensions between competing aims in the legislation.
  • Apply the Act to solve problems in competition law.
  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Assessment tasks

  • Seminar presentation
  • Class Test
  • Assignment
  • Take home

PG - Research and Problem Solving Capability

Our postgraduates will be capable of systematic enquiry; able to use research skills to create new knowledge that can be applied to real world issues, or contribute to a field of study or practice to enhance society. They will be capable of creative questioning, problem finding and problem solving.

This graduate capability is supported by:

Learning outcomes

  • Develop knowledge of and skills in statutory interpretation by working closely with the Act's key competition provisions.
  • Apply the Act to solve problems in competition law.
  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Assessment tasks

  • Seminar presentation
  • Class Test
  • Assignment
  • Take home

PG - Effective Communication

Our postgraduates will be able to communicate effectively and convey their views to different social, cultural, and professional audiences. They will be able to use a variety of technologically supported media to communicate with empathy using a range of written, spoken or visual formats.

This graduate capability is supported by:

Learning outcome

  • Apply the Act to solve problems in competition law.

Assessment tasks

  • Seminar presentation
  • Class Test
  • Assignment
  • Take home

PG - Engaged and Responsible, Active and Ethical Citizens

Our postgraduates will be ethically aware and capable of confident transformative action in relation to their professional responsibilities and the wider community. They will have a sense of connectedness with others and country and have a sense of mutual obligation. They will be able to appreciate the impact of their professional roles for social justice and inclusion related to national and global issues

This graduate capability is supported by:

Learning outcomes

  • Examine the differences between the previous legislation and its current form; analyse ongoing amendments and proposed amendments, appreciate the process of legislative change, the relationship between the courts and Parliament and the dynamic nature of the law.
  • Analyse the role of regulatory bodies, in particular the ACCC, in law enforcement and the policy considerations which may influence enforcement.

Assessment tasks

  • Seminar presentation
  • Assignment

Changes from Previous Offering

This is the first offering of this subject