Applying for an exemption
The CCA recognises that there may be circumstances where greater public benefits would result from allowing certain business behaviour that may restrict competition.
Where businesses are concerned that their proposed conduct may give rise to a breach of the CCA’s competition provisions, they can apply to the ACCC for ‘authorisation’. If the ACCC is satisfied that the relevant legal test is met, it can allow businesses to engage in the conduct. If the ACCC grants authorisation, the applicant is protected from legal action under the CCA.
Authorisation provides protection against legal action for future conduct that might breach the misuse of market power provisions of the CCA.
Parties can apply to the ACCC for authorisation where they believe that there is some risk that the conduct they propose to engage in would or may breach these provisions, and they require the certainty provided by an authorisation to undertake the activity.
In general, the ACCC may grant authorisation from these provisions if it is satisfied that the proposed conduct is either:
- unlikely to substantially lessen competition or
- likely to result in a net public benefit (i.e. the benefits to the public outweigh any likely detriments to the public).
In order to seek authorisation a business must prepare a submission outlining the markets likely to be affected by the proposed conduct, as well as the likely competitive effects and the likely benefits. A lodgement fee is payable to the ACCC (see Fees and forms).
The applicant must not engage in the conduct until the ACCC has granted authorisation.