Our read out on the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Act 2026, implementing a streamlined pathway for the ACCC to authorise conduct during exceptional circumstances.
With the passage of the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 (the Bill) on 25 May 2026, the Australian Competition and Consumer Commission (ACCC) now has streamlined powers to authorise competitor coordination during a crisis — faster, cheaper, and with fewer procedural hurdles than ever before.
The Bill creates a parallel, lower-threshold pathway through the newly inserted s 95AE, empowering the Treasurer to make an ‘exceptional circumstances declaration’ if there are exceptional circumstances that are causing, or would cause, significant harm to the Australian economy or Australian consumers, and it is in the public interest.
These reforms are intended to supplement the ACCC’s existing authorisation powers and address challenges faced by Australian businesses flowing from exceptional circumstances, including the economic impacts associated with conflict in the Middle East (see explanatory memorandum here). The Bill also increases penalties for contraventions of the Oil Code of Conduct.
Why is the bill needed?
During COVID-19, the ACCC received 33 applications for authorisation in six weeks from mid-March 2020. Whilst the COVID-19 experience revealed that the ACCC’s existing authorisation framework could be stretched to accommodate crisis coordination, it imposed a significant process burden on both businesses and the ACCC. This required extraordinary internal resource reallocation and each business or industry group to individually apply.
Closing the gap between the standard authorisation pathway and the National Emergency Declaration Act 2020 (Cth) (NEDA) authorisation pathway
The former NEDA-linked authorisation pathway in s 90(7)(c), introduced in September 2020, partially addressed the need for extended powers in emergencies, but still relied on the high threshold of a formal national emergency declaration.
The Bill closes the remaining gap by providing a lower-threshold trigger through the Minister’s exceptional circumstances declaration.
In bridging this gap, the Bill consolidates both the exceptional circumstances declaration pathway and the national emergency declaration pathway into a single operative framework.
Under the new framework, the ACCC’s streamlined powers are enlivened whenever either:
- an exceptional circumstances declaration made by the Minister under new section 95AE of the Competition and Consumer Act 2010 (Cth), or
- a national emergency declaration made by the Governor-General under NEDA is in force.
This means the two declaration types function as alternative triggering preconditions for the same set of ACCC powers — a lower-threshold ministerial declaration for circumstances that fall short of a national emergency, and the existing NEDA pathway for situations that meet the higher threshold of a formally declared national emergency.
Once a declaration is in force, the ACCC can under sections 92D and 95AC:
- grant streamlined authorisations on application, or
- declare class exemptions covering entire categories of conduct.
When can an exceptional circumstances declaration be made?
The Minister must be satisfied:
- that exceptional circumstances exist or are likely to exist, causing or likely to cause significant harm to the Australian economy or consumers, and
- it is in the public interest to make a declaration.
The term “exceptional circumstances” takes its natural and ordinary meaning.
Declarations can be made for six months and may be extended indefinitely, provided that each extension does not exceed three months and the Minister is satisfied that the exceptional circumstances are likely to continue to exist beyond the period that order is in force. The power is not confined to any particular sector or crisis.
Key differences between the standard and exceptional circumstances pathways
| Standard authorisation process | Exceptional circumstances | |
| Triggering precondition for application | No external precondition is required beyond the lodgment of a valid application under s 88(1) of the CCA. | An exceptional circumstances declaration or a national emergency declaration (within the meaning of the NEDA) and a valid application. |
| Substantive test for authorisation | The ACCC to be satisfied that the likely public benefits outweigh the likely public detriments.
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The ACCC need only be satisfied that the conduct would assist, or be likely to assist, in the response to or recovery from the exceptional circumstances, having regard to the likely public benefit and detriment. |
| Timing | The standard process involves public consultation and typically operates over weeks.
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Standard consultation requirements do not apply.
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| Cost | $7500 for a new authorisation;
$2500 to revoke and replace an existing authorisation. |
No application fees. |
| Retrospective operation | Ordinary authorisation is generally prospective, although interim authorisation may be available.
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The new provisions allow the ACCC to grant authorisation for conduct engaged in before the ACCC decides the application, although not before 1 April 2026. |
Impact on businesses
The Bill materially lowers both the procedural and substantive barriers to authorisation during declared emergencies, giving businesses a faster and more accessible pathway to collaborative conduct in times of crisis.
Speed vs scrutiny
The Bill progressed from introduction in the Senate to passing both Houses in 12 days and was not referred to or reported on by any parliamentary committee. The fact that legislation conferring broad new executive and regulatory powers passed quickly and without committee scrutiny raises questions about whether there was adequate consultation.
Both ministerial declarations and class exemptions will be subject to parliamentary disallowance. Whether these mechanisms provide sufficient oversight for powers of this breadth remains to be tested.