The Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 (Act) commenced on 27 May 2026. It introduces an expedited process that enables the ACCC to authorise coordination between competitors in emergency situations, where they may otherwise be in breach of the Competition and Consumer Act 2010 (Cth) (CCA). These reforms are intended to address challenges faced by Australian businesses flowing from exceptional circumstances, most recently the economic impacts of conflict in the Middle East.
The reforms supplement the ACCC’s existing authorisation powers, which have been used to facilitate coordination between businesses during recent emergencies, including the COVID-19 pandemic. More recently, in March, the ACCC issued an urgent interim authorisation for the Australian Institute of Petroleum to enable coordination of Australia’s fuel supply chain.
The Act creates a new power for the Minister to declare that “exceptional circumstances” exist that permit the ACCC to authorise conduct or to issue class exemptions (including retrospective authorisation of conduct) under a fast, streamlined process. The Act introduces penalties for contraventions of the Oil Code of Conduct of up to $10 million.
As announced by Assistant Minister for Productivity, Competition, Charities and Treasury, Dr Andrew Leigh MP, on 14 May 2026, the new law “gives the ACCC faster and more flexible tools to work with industry during disruption, helping protect consumers while preserving strong safeguards and the public interest test.”
New exceptional circumstances powers for the Minister
The Act introduces a power for the Minister to determine that the ACCC may grant class exemptions or authorise conduct that may otherwise contravene Part IV of the CCA under a fast and streamlined process. The power allows businesses to obtain urgent statutory protection from the ACCC where they need to respond quickly during exceptional circumstances (such as the ongoing impacts of the conflict in the Middle East) by coordinating in ways that would ordinarily risk breaching competition laws prohibiting cartels or other anti-competitive arrangements. In such cases, the current ACCC authorisation and class exemption processes may not be sufficiently responsive for businesses that need to act quickly during a crisis or where there is a need for authorisation of past conduct (which cannot be authorised under the existing ACCC process).
The Minister may, by legislative instrument, declare exceptional circumstances (under s 95AE) if the Minister is satisfied of the following:
- Exceptional circumstances exist, or are likely to exist, that are causing or would cause significant harm to the Australian economy or Australian consumers. The term "exceptional circumstances" is not defined and therefore takes its ordinary meaning, allowing the provision to apply to a broad range of events. Importantly, it is not necessary for circumstances to be a national emergency as defined in the National Emergency Declaration Act, although a national emergency would always be an exceptional circumstance.
- Making the declaration is in the public interest to empower the ACCC to make determinations for exceptional circumstances authorisations and/or class exemptions. The term "public interest" is also not defined, giving the Minister broad discretion when making a declaration.
The declarations are limited to six months, with extensions of up to three months each (no limit on the number of extensions), each requiring the Minister to be satisfied that the exceptional circumstances persist. Declarations may apply retrospectively to a period starting no earlier than 1 April 2026.
Streamlined ACCC authorisations of certain conduct
The ACCC may grant streamlined authorisations (with or without conditions) where:
- the Minister has made a s 95AE “exceptional circumstances” declaration; and
- the ACCC is satisfied the conduct would assist, or be likely to assist, in the response to or recovery from the exceptional circumstances or emergency. In doing so, the ACCC must have regard to the likely public benefit of the response and the detriment to the public from the conduct.
This differs from the ACCC’s standard authorisation test, which requires it to be satisfied that the likely public benefits arising from the conduct outweigh the likely public detriments.
The ACCC may authorise conduct that occurred before the determination was made, provided it occurred while a relevant Ministerial declaration was in force and no earlier than 1 April 2026. There are no application fees and standard consultation requirements do not apply, enabling the ACCC to act more quickly. The ACCC must keep a public register of determinations, variations and revocations, but may delay publication for up to seven business days after the relevant declaration ceases.
Exceptional circumstances class exemptions
The ACCC may also create class exemptions for particular kinds of conduct from breaching prohibitions on cartel and other anti-competitive conduct. The same test as for streamlined ACCC authorisations applies.
The ACCC’s class exemption may be restricted to specified persons, circumstances or conduct that complies with specified conditions. As with authorisations, the ACCC may also grant the class exemption subject to certain conditions, such as requiring parties to obtain the ACCC’s approval before engaging in certain conduct or that the conduct must be initiated by a government agency.
Because an exceptional circumstances class exemption is a legislative instrument, it is not subject to merits review by the Tribunal.
The new exceptional circumstances process will continue to operate alongside urgent interim authorisations
Over recent years, the ACCC has used its existing authorisation powers to help industry respond to national crises and other significant disruptions. Indeed, in the six weeks from mid-March 2020, the ACCC received 33 applications for authorisation of conduct associated with responding to the outbreak of COVID-19. More recently, similar requests have been received to facilitate a response to disruption to the fuel supply chain associated with the Middle East crisis.
In some cases, the ACCC has been prepared to issue urgent interim authorisations within 24 to 48 hours, where this was urgently required. However, the standard authorisation process is not designed for urgent emergency responses. The applicable legal tests are not specifically directed to emergency circumstances, interim protection may be limited and neither authorisations nor class exemptions provide retrospective protection.
Increased penalties for contraventions of the Oil Code of Conduct
The Oil Code of Conduct is a mandatory industry code made in 2017 to regulate the conduct of suppliers, distributors and retailers who are involved in the sale, supply or purchase of declared petroleum products (e.g., unleaded petrol and diesel).
Currently, the Oil Code of Conduct has no civil penalty provisions. The Act introduces penalties for contraventions occurring from commencement (that is, from 26 May 2026 onwards).
What this means for businesses and consumers
Although the Act has commenced, the new ACCC exceptional circumstances process will only be available when (and if) the Minister exercises their new powers. If the Minister decides the current economic challenges faced by businesses impacted by the Middle East conflict are “exceptional circumstances”, affected businesses will have an initial six-month period in which to apply for the ACCC to grant a class exemption or authorise its proposal to engage in conduct that may mitigate those impacts but could otherwise risk breaching competition laws. For example, in his Second Reading Speech for the Act, Dr Andrew Leigh anticipated the process could be used to minimise fuel usage to keep supply chain costs lower for them and their consumers, by allowing businesses to find innovative and collaborative solutions to prevent such shortages.
The new regime does not affect the availability of the ACCC's standard authorisation process for conduct that does not fall within the exceptional circumstances framework, but which may contravene Part IV of the CCA. Parties applying under the standard process will be subject to the ACCC’s usual consultation process and timeframe and can apply for a merits review.
Suppliers, distributors and retailers of fuel should also be aware that the new civil penalty provisions for breach of the Oil Code of Conduct now apply, and the ACCC may issue infringement notices to both body corporates and individuals or otherwise apply to the courts for significant civil penalties.