Competition and Consumer Act 2010 (Cth)
Section 51
Exceptions
Note: The Treasury Laws Amendment (2018 Measures No. 5) Act 2019 was passed by Parliament on 18 February 2019 and will repeal ss 51(3); the change will commence six months after receiving Royal Assent (Royal Assent was given on 12 March 2019; repeal of s 51(3) will take effect on 13 September 2019). The ACCC has released draft guidelines.
The provision
(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
(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
(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
Legislative history
Amended by Treasury Laws Amendment (2018 Measures No. 5) Act 2019 (Act 15 of 2019).
Schedule 4 - Repeal of subsection 51(3) of the Competition and Consumer Act 2010
Competition and Consumer Act 2010
1 Subsection 51(3)
Repeal the subsection.
2 In the appropriate position in Part XIII
Insert:
Division 4—Application of amendment made by the Treasury Laws Amendment (2018 Measures No. 5) Act 2019
186 Application of repeal of subsection 51(3)
(1) The amendment made by item 1 of Schedule 4 to the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 applies in relation to a licence granted, an assignment made, or a contract, arrangement or understanding entered into, on or after the commencement of that Schedule.
(2) The amendment also applies to a licence granted, an assignment made, or a contract, arrangement or understanding entered into, before the commencement of that Schedule in relation to:
(a) conditions imposed, or provisions included, on or after that commencement; and
(b) conditions imposed, or provisions included, before that commencement.
(3) Despite subsections (1) and (2), the amendment does not apply to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
3 Subsection 51(3) of Schedule 1
Repeal the subsection.
[Immediately prior to repeal (effectinve 13 September 2019) subsection 51(3) read as follows:
(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
(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.]
Amended by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)
16 Paragraph 51(2)(a)
Repeal the paragraph, substitute:
(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
17 At the end of paragraph 51(2)(b)
Add “or”.
18 Paragraphs 51(2)(c) and (d)
Repeal the paragraphs, substitute:
(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
19 Paragraph 51(2)(g)
Repeal the paragraph, substitute:
(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.
20 After subsection 51(2)
Insert:
(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.
21 Subsection 51(4)
Repeal the subsection.
Amended by the Acts Interpretation Amendment Act 2011 (Act 46 of 2011)
"426 Paragraph 51(2)(c)
Omit “Standards Australia International Limited”, substitute “Standards Australia”."
Amended by Trade Practices Act 1975 (Act 63 of 1975)
Amended by Trade Practices Amendment Act 1976 (Act 88 of 1976)
Amended by Trade Practices Amendment Act 1977 (Act 81 of 1977)
Amended by Trade Practices (Boycotts) Amendment Act 1980 (Act 73 of 1980)
Amended by Trade Practices Revision Act 1986 (Act 17 of 1986)
Amended by Circuit Layouts Act 1989 (Act 28 of 1989)
Amended by ACT Self-Government (Consequential Provisions) Regulations (Amendment) 1989 (SR 397 of 1989)
Amended by Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 (Act 70 of 1990)
Amended by Industrial Relations Reform Act 1993 (Act 98 of 1993)
Amended by Competition Policy Reform Act 1995 (Act 88 of 1995)
Amended by Workplace Relations and Other Legislation Amendment Act 1996 (Act 60 of 1996)
Commentary
Tamara Hunter 'Update on the IP exemption' (King&Wood Mallesons, In Competition, 23 May 2019)
There have been several recommendations to repeal s 51(3) relating to IP exemptions. The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 currently proposes to repeal this exemption.
Conduct specifically authorised for purposes of s 51
Note: this is not intended to constitute an exhaustive list of conduct that may be authorised for purposes of s 51
Competition and Consumer Act 2010
Section 151DA - NBN corporation authorised conduct
Telecommunications Act 1997
Note: s 577BA was inserted by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010
577BA Authorised conduct-subsection 51(1) of the Competition and Consumer Act 2010
Object
(1) The object of this section is to promote the national interest in structural reform of the telecommunications industry by authorising, for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, certain conduct engaged in by:
(a) Telstra; and
(b) NBN corporations; and
(c) certain other persons.
Note: If conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, the conduct is disregarded in deciding whether a person has contravened Part IV of that Act.
Authorised conduct
(2) The giving by Telstra of:
(a) an undertaking under section 577A; or
(b) a variation of an undertaking in force under section 577A; or
(c) a draft migration plan in accordance with an undertaking in force under section 577A; or
(d) a variation of a final migration plan;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(3) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A; and
(c) the operative provisions of the contract, arrangement or understanding are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A;
then:
(d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(f) if:
(i) the undertaking under section 577A comes into force; and
(ii) if the contract, arrangement or understanding was in writing—before the undertaking was accepted by the ACCC, Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding; and
(iii) if the contract, arrangement or understanding was not in writing—before the undertaking was accepted by the ACCC, the contract, arrangement or understanding was reduced to writing and Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding;
then:
(iv) conduct engaged in by Telstra or the NBN corporation after the undertaking comes into force in order to give effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(v) conduct engaged in by another NBN corporation after the undertaking comes into force in order to facilitate the first-mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(4) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains a migration provision; and
(c) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A;
then:
(d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision; and
(e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision.
(5) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains a migration provision; and
(c) Telstra or the NBN corporation engages in conduct in order to give effect to the migration provision; and
(d) when the conduct is engaged in, no undertaking is in force under section 577A;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 unless, before the conduct was engaged in:
(e) the ACCC refused to accept the most recent undertaking given by Telstra under section 577A; or
(f) as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) had effect as if the most recent undertaking given by Telstra under section 577A had never been accepted by the ACCC; or
(g) a final functional separation undertaking came into force.
(6) If Telstra is required to engage in conduct in order to comply with an undertaking in force under section 577A, the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(7) If:
(a) a person directly or indirectly acquires an asset from Telstra; and
(b) the disposal of the asset by Telstra is required for the compliance by Telstra with an undertaking in force under section 577A; and
(c) the person is identified in the undertaking as the person by whom the asset is to be directly or indirectly acquired;
the acquisition of the asset is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(8) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) Telstra enters into the contract, arrangement or understanding in order to comply with an undertaking in force under section 577A;
then:
(c) the entering into of the contract, arrangement or understanding by Telstra; and
(d) the entering into of the contract, arrangement or understanding by the NBN corporation; and
(e) conduct engaged in by Telstra or the NBN corporation in order to give effect to a provision of the contract, arrangement or understanding; and
(f) conduct engaged in by another NBN corporation in order to facilitate the first-mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(9) If:
(a) an undertaking given by Telstra is in force under section 577A; and
(b) Telstra enters into a contract, arrangement or understanding with an NBN corporation;
the Minister may, by legislative instrument, determine that subsection (8) applies, and is taken to have always applied, as if Telstra had entered into the contract, arrangement or understanding in order to comply with the undertaking.
(10) If:
(a) a final migration plan is in force; and
(b) the final migration plan sets out a method for determining a timetable for the taking of the action specified in the plan in accordance with paragraph 577BC(2)(a); and
(c) Telstra or an NBN corporation engages in conduct for the purposes of determining the timetable; and
(d) the conduct is consistent with the method;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
Migration provisions
(11) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains one or more provisions for:
(i) Telstra to cease to supply fixed-line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(ii) Telstra to cease to supply one or more types of fixed-line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iii) Telstra to cease to supply, in particular circumstances, one or more types of fixed-line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iv) Telstra to commence to supply fixed-line carriage services to customers using the national broadband network;
then:
(c) each of the provisions mentioned in paragraph (b) is a migration provision; and
(d) if the contract, arrangement or understanding contains one or more provisions for Telstra to supply services to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(e) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to supply services to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(f) if the contract, arrangement or understanding contains one or more provisions for Telstra to give information to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(g) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to give information to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision.
Definitions
(12) In this section:
asset means:
(a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and
(b) any right, privilege or immunity, including a contingent or prospective one.
enter into:
(a) when used in relation to an arrangement—includes make; or
(b) when used in relation to an understanding—includes arrive at or reach.
fixed-line carriage service means:
(a) a carriage service that is supplied using a line to premises occupied or used by an end-user; or
(b) a service that facilitates the supply of a carriage service covered by paragraph (a).
give effect to, in relation to a provision of a contract, arrangement or understanding, has the same meaning as in the Competition and Consumer Act 2010.
migration provision has the meaning given by subsection (11).
national broadband network means a telecommunications network for the high-speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network.
NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).
NBN corporation means:
(a) NBN Co; or
(b) NBN Tasmania; or
(c) a company that is a related body corporate of NBN Co.
NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed).
related body corporate has the same meaning as in the Corporations Act 2001.
