(1) Use of a design in the circumstances mentioned in subsection (3) is not an infringement of a registered design.
(2) Despite subsection (1), if terms relating to the use of the design have been agreed or determined in accordance with section 98, the use of the design is an infringement unless the terms are complied with.
(3) The circumstances are as follows:
(a) the relevant Minister considers that the relevant authority has tried for a reasonable period, but without success, to obtain from the applicant or entitled person, or the registered owner, an authorisation to use the design on reasonable terms;
(b) the relevant Minister approves, in writing, the use of the design;
(c) the design is used for Crown purposes;
(d) if the use of the design is by a person authorised by a relevant authority for the purposes of subparagraph 95(2)(b)(ii)--the person is authorised by the relevant authority before the use starts;
(e) at least 14 days before the use starts, the relevant authority gives the applicant and the entitled person, or the registered owner:
(i) a copy of the approval referred to in paragraph (b); and
(ii) a written statement of reasons for approving the use of the design.
Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
(4) An approval given under paragraph (3)(b) is not a legislative instrument.
(5) Relevant Minister means:
(a) in relation to the use of a design by or for the Commonwealth--the Minister; or
(b) in relation to the use of a design by or for a State--the Attorney-General of the State; or
(c) in relation to the use of a design by or for a Territory--the Attorney-General of the Territory.