Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

COMPETITION AND CONSUMER ACT 2010 - SECT 51

Exceptions

             (1)  In deciding whether a person has contravened this Part, the following must be disregarded:

                     (a)  anything specified in, and specifically authorised by:

                              (i)  an Act (not including an Act relating to patents, trade marks, designs or copyrights); or

                             (ii)  regulations made under such an Act;

                     (b)  anything done in a State, if the thing is specified in, and specifically authorised by:

                              (i)  an Act passed by the Parliament of that State; or

                             (ii)  regulations made under such an Act;

                     (c)  anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an enactment as defined in section 3 of the Australian Capital Territory (Self-Government) Act 1988 ; or

                             (ii)  regulations made under such an enactment;

                     (d)  anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an enactment as defined in section 4 of the Northern Territory (Self-Government) Act 1978 ; or

                             (ii)  regulations made under such an enactment;

                     (e)  anything done in another Territory, if the thing is specified in, and specifically authorised by:

                              (i)  an Ordinance of that Territory; or

                             (ii)  regulations made under such an Ordinance.

          (1A)  Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:

                     (a)  a licence or other instrument issued or made under the law specifies one or both of the following:

                              (i)  the person authorised to engage in the conduct;

                             (ii)  the place where the conduct is to occur; and

                     (b)  the law specifies the attributes of the conduct except those mentioned in paragraph (a).

For this purpose, law means an Act, State Act, enactment or Ordinance.

          (1B)  Subsections (1) and (1A) apply regardless of when the Acts, State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued.

          (1C)  The operation of subsection (1) is subject to the following limitations:

                     (a)  in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to this Act;

                     (b)  subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50 or 50A;

                     (c)  regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation;

                     (d)  regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations:

                              (i)  referred to in the subparagraph concerned; and

                             (ii)  that came into operation more than 2 years before the particular thing happened;

                     (e)  paragraphs (1)(b) to (d) have no effect in relation to things authorised by a law of a State or Territory unless:

                              (i)  at the time of the alleged contravention referred to in subsection (1) the State or Territory was a fully-participating jurisdiction and a party to the Competition Principles Agreement; or

                             (ii)  all of the following conditions are met:

                                        (A)  the Minister published a notice in the Gazette under subsection 150K(1) in relation to the State or Territory, or the State or Territory ceased to be a party to the Competition Principles Agreement, within 12 months before the alleged contravention referred to in subsection (1);

                                        (B)  the thing authorised was the making of a contract, or an action under a contract, that existed immediately before the Minister published the notice or the State or Territory ceased to be a party;

                                        (C)  the law authorising the thing was in force immediately before the Minister published the notice or the State or Territory ceased to be a party;

                      (f)  subsection (1) does not apply to things that are covered by paragraph (1)(b), (c), (d) or (e) to the extent that those things are prescribed by regulations made under this Act for the purposes of this paragraph.

             (2)  In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been committed, regard shall not be had:

                     (a)  to any act done, or concerted practice, to the extent that it relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

                    (aa)  to:

                              (i)  the making of a contract or arrangement, or the entering into of an understanding; or

                             (ii)  any provision of a contract, arrangement or understanding;

                            to the extent that the contract, arrangement, understanding or provision relates to the remuneration, conditions of employment, hours of work or working conditions of employees; or

                     (b)  to any provision of a contract of service or of a contract for the provision of services, being a provision under which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which he or she may engage during, or after the termination of, the contract; or

                     (c)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice obliges a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia or a prescribed association or body; or

                     (d)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            between partners none of whom is a body corporate, to the extent that the provision or concerted practice relates to:

                            (iii)  the terms of the partnership; or

                            (iv)  the conduct of the partnership business; or

                             (v)  competition between the partnership and a party to the contract, arrangement, understanding or concerted practice, while the party is, or after the party ceases to be, a partner; or

                     (e)  in the case of a contract for the sale of a business or of shares in the capital of a body corporate carrying on a business--to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business; or

                     (g)  to:

                              (i)  any provision of a contract, arrangement or understanding; or

                             (ii)  any concerted practice;

                            to the extent that the provision or concerted practice relates exclusively to:

                            (iii)  the export of goods from Australia; or

                            (iv)  the supply of services outside Australia;

                            if full and accurate particulars of the provision or concerted practice were given to the Commission no more than 14 days after the day the contract or arrangement was made or the understanding or concerted practice was entered into, or before 8 September 1976, whichever was the later.

       (2AA)  For the purposes of paragraph (2)(g), the particulars to be given to the Commission:

                     (a)  need not include particulars of prices for the goods or services; but

                     (b)  must include particulars of any method of fixing, controlling or maintaining such prices.

          (2A)  In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had to any acts done, otherwise than in the course of trade or commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services.

             (3)  A contravention of a provision of this Part other than section 46, 46A or 48 shall not be taken to have been committed by reason of:

                     (a)  the imposing of, or giving effect to, a condition of:

                              (i)  a licence granted by the proprietor, licensee or owner of a patent, of a registered design, of a copyright or of EL rights within the meaning of the Circuit Layouts Act 1989 , or by a person who has applied for a patent or for the registration of a design; or

                             (ii)  an assignment of a patent, of a registered design, of a copyright or of such EL rights, or of the right to apply for a patent or for the registration of a design;

                            to the extent that the condition relates to:

                            (iii)  the invention to which the patent or application for a patent relates or articles made by the use of that invention;

                            (iv)  goods in respect of which the design is, or is proposed to be, registered and to which it is applied;

                             (v)  the work or other subject matter in which the copyright subsists; or

                            (vi)  the eligible layout in which the EL rights subsist;

                     (b)  the inclusion in a contract, arrangement or understanding authorizing the use of a certification trade mark of a provision in accordance with rules applicable under Part XI of the Trade Marks Act 1955 , or the giving effect to such a provision; or

                     (c)  the inclusion in a contract, arrangement or understanding between:

                              (i)  the registered proprietor of a trade mark other than a certification trade mark; and

                             (ii)  a person registered as a registered user of that trade mark under Part IX of the Trade Marks Act 1955 or a person authorized by the contract to use the trade mark subject to his or her becoming registered as such a registered user;

                            of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be produced or supplied, or the giving effect to the provision to that extent.

             (5)  In the application of subsection (2A) to section 46A, the reference in that subsection to trade or commerce includes trade or commerce within New Zealand.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback