Competition and Consumer Amendment (Responding to Exceptional Circumstances) Act 2026

The Competition and Consumer Amendment (Responding to Exceptional Circumstances) Act 2026 amends both the Competition and Consumer Act 2010 and the National Emergency Declaration Act 2020. Its central change is a new emergency competition law framework that allows the ACCC to grant temporary authorisations for specified conduct and to make temporary class exemptions for specified kinds of conduct.

The framework is aimed at exceptional circumstances or national emergencies where some coordination that would normally raise competition law risk may help the response to, or recovery from, the event. The Act does not switch off competition law generally. Instead, it creates a limited pathway for relief where the statutory conditions are met and a qualifying declaration is in force.

The Act also makes separate amendments dealing with industry codes and penalties. In particular, it increases penalties for contraventions of the Oil Code of Conduct and updates industry code coverage references so they include franchising, food and groceries, and suppliers, distributors and retailers in the petroleum marketing industry.

The new ACCC emergency powers do not operate all the time. They can only be used if one of two declarations is in force.

The first is a declaration by the Minister under section 95AE of the Competition and Consumer Act 2010. The Minister may make that declaration by legislative instrument if satisfied that exceptional circumstances causing significant harm to the Australian economy or Australian consumers exist, or are likely to exist, and that it is in the public interest to empower the ACCC to make emergency authorisations or class exemptions.

The second is a national emergency declaration within the meaning of the National Emergency Declaration Act 2020. The Act also amends that legislation so the new ACCC powers under sections 92D and 95AC are picked up in the definition of national emergency law.

This means the businesses most likely to be affected are those operating in sectors where coordinated action may be proposed during a declared event, such as food, groceries, fuel, freight, logistics and other critical supply chains. But the legislation is not limited to those sectors. Any person may apply for an authorisation under the new Division if the conduct is of a kind to which one or more provisions of Division 1 or 2 of Part IV would or might apply.

Businesses that are usually out of scope are those assuming the Act gives a standing permission to coordinate with competitors whenever there is disruption. It does not. Without a qualifying declaration and a relevant ACCC authorisation or class exemption, the ordinary competition law rules continue to apply.

A Ministerial declaration under section 95AE is time limited. It must be no longer than the period the Minister considers necessary for emergency management, and it cannot exceed 6 months at a time. It can be extended more than once, but each extension must not exceed 3 months.

The Act inserts a new Division 1A into Part VII of the Competition and Consumer Act 2010. Under that Division, a person may apply to the ACCC for an authorisation to engage in conduct specified in the authorisation where one or more provisions of Division 1 or 2 of Part IV would or might apply.

The application must be in a form approved by the ACCC in writing, contain the information required by that form, be accompanied by any other information or documents prescribed by regulations, and specify that it is an application made under the new Division.

If a qualifying declaration is in force, the ACCC may grant such authorisation as it considers appropriate or dismiss the application. The ACCC must not grant the authorisation unless it is satisfied that, in all the circumstances, the conduct would assist, or would be likely to assist, in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates.

When deciding the application, the ACCC must have regard to the likely public benefit resulting from that assistance and the detriment to the public that would result, or be likely to result, from the conduct. It may also have regard to any other public benefit that would result or likely result from the conduct.

An authorisation can protect the applicant, other persons named or referred to in the application, and other specified persons or classes of persons who become engaged in the conduct. The ACCC can impose conditions, and a condition may include a requirement to obtain ACCC approval before engaging in certain conduct. If conditions are not complied with, the statutory protection does not apply.

The Act also allows a single authorisation to deal with several types of conduct. Importantly, the ACCC may grant an authorisation for past conduct. That means authorisations can operate retrospectively. But the start date cannot be earlier than 1 April 2026, even if the authorisation is granted later.

There is one clear exclusion that businesses should not miss. The ACCC must not make a determination to grant a merger authorisation under this emergency authorisation section. If the proposed conduct is really an acquisition, amalgamation or other merger activity, this emergency pathway is not available for that purpose.

The Act also gives the ACCC power to make exceptional circumstances class exemptions under section 95AC. This is different from an individual authorisation. Instead of approving a named applicant's conduct, the ACCC may determine that one or more specified provisions of Division 1 or 2 of Part IV do not apply to a specified kind of conduct.

This power is only available while a relevant declaration is in force. There is no permanent or standing emergency class exemption power that can be used at any time. The exemption must relate to the declared exceptional circumstances or the declared national emergency.

The ACCC must not make the determination unless satisfied that, in all the circumstances, conduct of that kind would assist, or would be likely to assist, in the response to or recovery from the relevant event. It must have regard to the likely public benefit from that assistance and the likely public detriment from the conduct, and it may have regard to any other public benefit.

The ACCC may limit a class exemption in several ways. It can limit it to persons of a specified kind, to circumstances of a specified kind, or to conduct that complies with specified conditions. Conditions can include a requirement to obtain ACCC approval before engaging in certain conduct.

A class exemption can also operate retrospectively, but again not earlier than 1 April 2026. It remains in force only for the period specified in the determination and ends at the earliest of the stated end point, the end of the day a revocation takes effect, or the end of the last day on which the relevant declaration remains in force.

Even where a class exemption exists, the ACCC may withdraw its benefit for a particular person. It may give written notice if it considers that conduct of that kind would not assist, or would not be likely to assist, the response to or recovery from the relevant event, or that conduct of that kind is not appropriate. While that notice is in force, the class exemption does not apply to the conduct specified in the notice engaged in by that person.

The determination itself is a legislative instrument, and the Act expressly provides that disallowance under the Legislation Act 2003 applies to it.

Emergency protections under this Act are temporary and document specific. An authorisation remains in force for the period starting on the day specified in the determination, which may be before commencement but not before 1 April 2026, and ending at the earliest of the start of the day specified in the determination, the end of the day a revocation takes effect, or the end of the last day on which the relevant declaration remains in force.

The same basic structure applies to class exemptions. They can start on a specified day, including a day before commencement, but not before 1 April 2026. They also end no later than the end of the relevant declaration period unless revoked earlier or ended earlier by their own terms.

The ACCC may vary an authorisation at any time if it considers that appropriate, but it must still be satisfied that the conduct as varied would assist, or would be likely to assist, the response to or recovery from the relevant event. The ACCC must give the applicant written notice stating that the authorisation is varied, the details of the variation, and the date on which the variation takes effect. The variation takes effect on the business day after the notice is given.

The ACCC may revoke an authorisation if it considers the conduct would not assist, or would not be likely to assist, the response to or recovery from the relevant event, if the conduct is not appropriate, if the authorisation was granted on materially false or misleading evidence or information, or if a condition has not been complied with. Revocation takes effect on the business day after notice is given.

The ACCC must keep a register of determinations of applications for authorisations, variations of authorisations and revocations of authorisations. The register must include the statement of reasons for a determination. However, the Act allows publication of a determination of an application to be delayed. The ACCC is not required to include that determination on the register until the end of 7 business days beginning after the relevant declaration ceases to be in force, or if both kinds of declaration are in force, after the later of the days on which they cease.

That delayed publication rule matters in practice. A business should not assume the public register will always show live emergency approvals immediately. If your business is relying on an authorisation or class exemption, keep your own records of the declaration, the determination, any conditions, any notices, and the dates on which the protection starts and ends.

Schedule 2 makes separate amendments to the Competition and Consumer Act 2010 dealing with industry codes and penalties. The Act updates the industry coverage references in section 51AE so that the covered industries include franchising, food and groceries, and suppliers, distributors and retailers in the petroleum marketing industry.

It also replaces subsection 51ACF(2) so that the relevant subsection applies to an industry code that relates to food and groceries, or to the conduct of suppliers, distributors and retailers in the petroleum marketing industry, where the code provides that the subsection applies.

The Schedule is expressly directed to increasing penalties for contraventions of the Oil Code of Conduct. The amendments made by Schedule 2 apply in relation to contraventions that happen, or are alleged to happen, on or after the day that Schedule commenced, which was 27 May 2026.

For businesses in fuel, groceries and franchising, the practical point is that emergency competition law relief does not automatically remove separate industry code obligations. A business may have competition law protection for specified conduct under an authorisation or class exemption, but still need to comply with any applicable code requirements unless the legal instrument clearly changes that position.

This Act should be read narrowly and in sequence. Start with the declaration. Then read the authorisation or class exemption itself. Then check the dates, the conduct covered, the people covered, and every condition. The legislation is useful in a genuine emergency setting, but it is not a broad permission to coordinate with competitors whenever there is pressure on supply, pricing or logistics.

Businesses should separate four questions that are easy to blur together. First, is there a valid declaration in force? Second, is there an ACCC authorisation or class exemption that actually covers the conduct? Third, does the protection start early enough to cover the conduct, remembering that retrospective operation cannot begin before 1 April 2026? Fourth, are there any other legal obligations, including industry code obligations, that still apply?

If your business is considering joint supply arrangements, information sharing, coordinated logistics, temporary allocation arrangements or similar conduct during a crisis, the key compliance risk is assuming the emergency context is enough on its own. It is not. The statutory protection only applies within the exact boundaries of the determination and only for the period it remains in force.

The Act received Royal Assent on 26 May 2026. Sections 1 to 3 and anything not otherwise covered by the commencement table commenced on that day. Schedules 1 and 2 commenced on 27 May 2026. The legislation is in force.

The Act also allows some declarations, authorisations and class exemptions to specify a start date before commencement, but not before 1 April 2026. That is a feature of the legislation itself. It does not mean any particular business conduct is automatically approved or exempt.