Guidelines on the repeal of subsection 51(3) of the Competition and Consumer Act

Prior to its repeal, subsection 51(3) of the Competition and Consumer Act 2010 (Cth) (CCA) provided a limited exemption for some conduct relating to intellectual property rights from certain anti-competitive conduct prohibitions in the CCA. This exemption was repealed by the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 in March 2019, with the repeal coming into effect on 13 September 2019.

Following the repeal, conduct involving intellectual property rights is now subject to the anti-competitive conduct provisions in Part IV of the CCA in the same manner as other conduct.

In order to assist businesses and intellectual property rights-holders following the repeal, the ACCC developed guidelines setting out the ACCC’s current understanding and interpretation of the law. The guidelines are for the general guidance of legal practitioners and business advisors and are not a substitute for legal advice.

The draft guidelines were released on 21 June 2019 for public consultation for four weeks. During that period, the ACCC received 16 submissions from a range of domestic and international stakeholders, including legal associations and industry associations that regularly deal with intellectual property rights.

The ACCC has now released the final guidelines on the repeal of subsection 51(3) of the CCA.