University of Technology Sydney

78216 Competition Law and Policy

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2025 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ( 70106c Principles of Public International Law OR ((22 credit points of completed study in spk(s): C04264 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies) AND 70211 Contracts) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 78217 Competition Law in a Global Context

Description

This subject provides a comprehensive, in-depth and engaging examination of the economic and legal principles of competition law (also known as antitrust law or restrictive trade practices law) in Australia. It examines statute law, Part IV of the Competition and Consumer Act 2010 (Cwlth) (CCA) (formerly Trade Practices Act 1974 (Cwlth) (TPA)), the decisions of the common law Courts in interpreting the Act, as well as some international treaties on antitrust law enforcement, of which Australia is a party. Current issues and recent cases on competition laws and policies in Australia are also examined.

The subject covers the economic functioning of markets, market power and competition; the relationship between antitrust-related statute law, common law and economics; the evolution and objectives of Australian competition law and the administration and enforcement of competition law, both nationally and internationally. The subject also examines the evolution of competition law, including the reasons for competition law, the economic functioning of markets, market power and competition, the relationship between economics and competition laws, and the legislative feature of Australian competition law. The subject provides an in-depth examination of major anti-competitive statutory conduct in Part IV of the CCA, including mergers/acquisitions, misuse of market power, exclusionary conduct, monopolistic agreements/arrangements, exclusive dealing, and resale price maintenance. The subject provides an overview of the administration and enforcement of competition law in Australia, including the roles of the Australian Competition and Consumer Commission, the Australian Competition Tribunal and the Courts including authorisation and notification regimes, remedies for private litigants and other related matters. This analysis is supplemented with an examination of major international treaties on antitrust law enforcement, of which Australia is a party, and major international antitrust cases in which Australia is involved.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1. Identify and analyse the rationale for, and implementation of, competition policy and law in enhancing market efficiency in both a static and ongoing sense, and to adjust quickly to the needs of law firms with competition practices
2. Effectively and persuasively communicate critical analysis of a variety of major issues on competition law and policy;
3. Interpret and explain the practical operation and enforcement of competition law in business and commerce;
4. Analyse and evaluate selected business scenarios in relation to international enforcement of competition law, in which Australia is involved.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

  • Legal Knowledge
    A coherent understanding of fundamental areas of legal knowledge including:
    a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
    b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
    c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
    d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1)
  • Critical Analysis and Evaluation
    A capacity to think critically, strategically and creatively, including the ability to:
    a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
    b. Apply reasoning and research to generate appropriate responses;
    c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
    d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1)
  • Research skills
    Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1)
  • Collaboration
    Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
    a. An ability to give and receive feedback;
    b. Appropriate professional and interpersonal skills in working collaboratively;
    c. A capacity to develop strategies to successfully negotiate group challenges; and
    d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)

Teaching and learning strategies

Strategy 1 - Preparation:

By completing readings (in the topic and reading list on Canvas), listening to podcasts and watching vodcasts on Canvas prior to class, students engage with key concepts and develop skills in policy interpretation that they then practise and develop further in group discussion.

Strategy 2 - Collaborative activities and feedback:

The seminars include a range of authentic learning opportunities, such as peer-facilitated group discussions and debates, and practice problems involving navigating, explaining and applying complex statutory provisions and competition law policies. Students receive formative feedback on their performance regularly from Week 3 onwards during class discussions by peer feedback and discussions with the seminar leader.

Strategy 3 - Active seminar activities and feedback:

The use of active seminar-style classes helps students to build a solid conceptual framework around core concepts of competition law, which serves as a foundation for understanding the differences and similarities of competition laws and policies between world major economies. This is achieved through student-centred problem-solving exercises, short scenario discussions and student presentations with feedback from both students and the seminar leader. To ensure students receive constructive feedback, they give two presentations for which they receive constructive feedback from both seminar leaders and peer commentators. Students develop and improve skills in the communication of critical legal analysis and policy interpretation, which form a core part of professional legal practice.

Strategy 4 - Case study analysis:

Students learn about commercial transactions and apply their policy interpretation skills to an analysis of several case studies (available on Canvas). The case studies are examples of real company practices and commercial conduct/transactions that involve the application of competition law principles.

Strategy 5 - Authentic experiences:

Through field trips and guest speakers (depending on availability), students are exposed to the views of both regulators and commercial lawyers, and learn about how competition law and policy are enforced and implemented in the real world.

Subject Delivery

This subject is run in small groups consisting of one 3-hour seminar per week.

Content (topics)

Topic 1: Introduction and legal background
Topic 2: Economic foundation of competition law
Topic 3: Misuse of market power
Topic 4: Mergers and acquisitions
Topic 5: Anti-competitive arrangements (Horizontal restraints)
Topic 6: Anti-competitive arrangements (Vertical restraints)
Topic 7: Administration and enforcement structure
Topic 8: Authorisation and notification/ Exemptions
Topic 9: Penalties and remedies for Part IV breaches
Topic 10: International perspective/international enforcement

Assessment

Assessment task 1: Class Engagement

Objective(s):

This task addresses the following subject learning objectives:

1, 2, 3 and 4

This task contributes specifically to the development of the following graduate attributes:

LAW.1.1, LAW.3.1 and LAW.6.1

Weight: 30%
Length:

Note: Please include a reference list. This will not affect the word count limits.
Criteria:

Part A:

  • Regular, clear and thoughtful contributions to class and group discussions, and constructive feedback provided for peers
  • Contributions that demonstrate personal engagement with the subject material and activities across the range of topics and issues
  • Critically informed understanding of current issues and challenges in competition law by presenting persuasive views, arguments and ethical approaches
  • Cooperative approach to group discussions including contribution to a respectful environment by showing sensitivity to others and a professional responsibility towards learning in the subject.

Parts B & C:

  • Clear and thoughtful presentation to class, facilitation of discussion about their topic, and response to feedback.
  • Concise slides that provide audience with a useful overview of the topic before and during presentation
  • Demonstrate personal engagement with topic, key issues and challenges in national and international competition and consumer law
  • Development of logical arguments with persuasive conclusions.

Assessment task 2: Case note OR Article Evaluation

Objective(s):

This task addresses the following subject learning objectives:

1, 2 and 3

This task contributes specifically to the development of the following graduate attributes:

LAW.1.1, LAW.3.1 and LAW.4.1

Weight: 30%
Length:

1500 words not including footnotes (with 10% flexibility).

Footnotes should only be used for references. No part of your answer can be included in your footnotes: if it is, it will be ignored during marking.

Please include a reference list. This will not affect the word count limits.
Criteria:

Option 1 – Case Note:

  • Clearly explained rationale and purpose for selecting this case
  • Identification of the nature of the case, the central legal issue involved, important relevant facts and appropriate background
  • Clear summary of the court’s decision and reasoning, including any dissenting judgment if applicable
  • Demonstrated critical, reflective, and independent analysis and evaluation of the decision, with clear conclusions regarding the impacts and implications of the decision
  • Well-structured and organised according to legal conventions with accurate referencing in accordance with legal style utilising footnotes and bibliography.

Option 2 – Article Evaluation:

  • Clearly explained rationale and purpose for selecting this article for analysis
  • Clear outline of the important points made in the article and appropriate background and identification of the major legal or social-economic issues involved
  • Demonstrated critical, reflective, and independent analysis and evaluation of the author’s major arguments, balancing possibly opposing views
  • Clear conclusions regarding the article’s implications for competition law
  • Well-structured and organised according to legal conventions with accurate referencing in accordance with legal style utilising footnotes and bibliography.

Assessment task 3: Essay

Objective(s):

This task addresses the following subject learning objectives:

1, 2, 3 and 4

This task contributes specifically to the development of the following graduate attributes:

LAW.1.1, LAW.3.1 and LAW.4.1

Weight: 40%
Length:

2000 words not including footnotes (with 10% flexibility).

Footnotes should only be used for references. No part of your answers can be included in your footnotes: if it is, it will be ignored during marking.

Please include a reference list. This will not affect the word count limits.
Criteria:

Marks will be based on the following criteria:

  • Demonstrated working knowledge and understanding of the essay topic;
  • Demonstrated ability to identify issues and relevant law, and apply the law to the essay topic;
  • Development of a sustained thesis or overall argument;
  • Development of coherent and persuasive arguments, drawing reasoned and logical conclusions;
  • Demonstrated broader knowledge (background reading), critical analysis, evaluation and reflection on at least some of the issues involved, rather than simply summarising, restating or applying the law;
  • Essay is well-structured and organised;
  • Essay is referenced properly in accordance with the Faculty’s preferred style (as set out in the Australian Guide to Legal Citation, 3rd ed, 2010)

Required texts

  • Alex Bruce, Australian Competition Law (LexisNexis, 4th ed, Sydney 2021).

Recommended texts

Books

  • Russell V Miller, Miller’s Australian Competition and Consumer Law Annotated, 2023 or latest version, Thomson Reuters.

Loose-leaf series:

  • CCH Australian Trade Practices Reporter (available online through UTS:Library);
  • Heydon, Trade Practices Law, (2 vols) Law Book Company

Student Guide Cards:

  • Jurisprudentia, Competition Law I, II and III (Student Guide Cards, Sydney 2021 or latest verson).

References

Other Materials: Reports, Journals and General References

Books

  • Breit W & Kenneth G. E (ed), The antitrust casebook: milestones in economic regulation, Worth: Dryden Press, 1996.
  • Hylton K N, Antitrust law Economic Theory and common law revolution, Cambridge University Press 2003
  • Posner R, Antitrust Law, 2nd ed, University of Chicago Press, 2001
  • Wu L (ed), Economics of antitrust: new issues, questions, and insights, NY: NERA Economic Consulting, 2004.

Journals

  • Antitrust Law Journal (USA)
  • Australian Business Law Journal (LBC) (Australia)
  • Australian Trade Practices Law Reporter (CCH) (Australia)
  • Competition & Consumer Law Journal, Butterworths (Australia)
  • European Competition Journal (2005-) (United Kingdom)
  • European Competition Law Review (United Kingdom)
  • International Review of Intellectual Property and Competition Law (Germany)
  • Journal of Competition Law and Economics (2005-) (United Kingdom)
  • OECD Journal of Competition Law and Policy (France)
  • The Antitrust Bulletin (USA)
  • Trade Practices Law Journal, Law Book Company (Australia)
  • World Competition: Law and Economics Review (Netherlands)

Law reports

  • Australian Trade Practices Reports (ATPR)
  • Federal Court Reports (FCR)

Reference and Writing Assistance

  • Jurisprudentia, Legal Referencing (Student Guide Card, Sydney, 2021) (Note: that this is the required AGLC style)
  • Jurisprudentia, Legal Writing (Student Guide Card, Sydney, 2021)

References

  • Australian Guide to Legal Citation, 3rd ed, 2010 or latest version.

Others

  • UTS:Law Guide to Written Communication: https://www.uts.edu.au/sites/default/files/2023-08/UTS-Law-Guide-to-Written-Communication-2023.pdf

Other resources

Useful Websites

Supplementary Materials:

  • Allens Arthur Robinson, The Annual Allens Arthur Robinson Competition Law Fest. St. Leonards, N.S.W.: The Continuing Professional Education Dept. of the College of Law, 2008.
  • Brunt M (ed), Economic essays on Australian and New Zealand competition law, London: Kluwer Law International, 2003.
  • Neale AD, The Antitrust Laws of the United States: A Study of Competition Enforced by Law, 2nd ed, Cambridge University Press, London 1970
  • Posner R, Economic Analysis of Law, Aspen Publishing, 2003
  • Whish R, Competition Law, Butterworths, 2003
  • Walsh & Paxton, Competition policy: European and international trends and practices, London: Macmillan, 1975