Competition and Consumer Act. Australia

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      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 in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees;

      (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;

      (c) to any provision of a contract, arrangement or understanding, being a provision obliging a person to comply with or apply standards of dimension, design, quality or performance prepared or approved by Standards Australia International Limited or by a prescribed association or body;

      (d) to any provision of a contract, arrangement or understanding between partners none of whom is a body corporate, being a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement or understanding while he or she is, or after he or she ceases to be, a partner;

      (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 any provision of a contract, arrangement or understanding, being a provision that relates exclusively to the export of goods from Australia or to the supply of services outside Australia, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling or maintaining such prices) were furnished to the Commission before the expiration of 14 days after the date on which the contract or arrangement was made or the understanding was arrived at, or before 8 September 1976, whichever was the later.

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