In recent months, fuel shortages and trading disruptions stemming from geopolitical instability in the Middle East have placed increased pressure on Australian supply chains. Parliament has responded by introducing new laws under the Consumer Amendment (Responding to Exceptional Circumstances) Act 2026 which confer strictly prescribed emergency powers on the ACCC.
These new laws are designed to facilitate a more flexible and streamlined regulatory response to disruptions in the Australian economy. In declared crises, the ACCC can provide fast-track exemptions for certain forms of coordinated conduct that would otherwise risk breaching Part IV of the Competition and Consumer Act 2010 (Cth) (Act).
At the same time, Parliament has given the ACCC a bigger stick to tackle non-compliance in the fuel industry. Maximum penalties for breaches of the Oil Code of Conduct are now the greater of $10 million, three times the benefit obtained, and 10% of annual turnover, in line with penalties for breaches of key provisions in the Food and Grocery Code and the Franchising Code.
What are the ACCC’s new emergency powers?
The ACCC’s new emergency powers are only triggered by a formal declaration of exceptional circumstances by the Treasurer under the Act or a declaration of a national emergency by the Governor-General under the National Emergency Declaration Act 2020.
“Exceptional circumstances” are not defined under the new laws. There is therefore a wide degree of discretion for the Treasurer in deciding whether to make a declaration of exceptional circumstances. However, two things are clear. First, the circumstances may fall short of a national emergency. Secondly, the circumstances must be sufficiently serious in terms of causing, or being likely to cause, significant harm to the Australian economy or Australian consumers. This means that the ACCC’s new emergency powers are likely to have implications only for businesses in sensitive industries which supply essential goods or services.
Once a relevant declaration has been made, businesses will be able to apply to the ACCC for a fast-track determination of an authorisation to engage in coordinated conduct in response to the crisis. The ACCC will also be able to make determinations of class exemptions in respect of certain persons, circumstances, or conduct to facilitate a coordinated response by industry participants.
Key features of the fast-track authorisation process include:
- Retrospective decisions: Under the new fast-track regime, the ACCC can issue authorisations for conduct which occurred prior to the date of the authorisation – a departure from the situation under the standard authorisation regime. This is subject to two conditions – first, the conduct must have occurred while a relevant declaration was in force; and, secondly, the conduct cannot have occurred before 1 April 2026.
- No lodgement fee: Applications made under the fast-track regime will not incur a lodgement fee. This reflects the unusual circumstances and economic challenges faced by businesses facing exceptional circumstances and emergencies.
- No standard consultation: Standard consultation requirements do not apply to applications made under the fast-track regime. This is to enable the ACCC to move more quickly in considering applications.
The ACCC has made it clear that it will use its new powers narrowly and “apply clear safeguards, so coordination goes no further than necessary and impacts on competition are minimised.”
Practical tips for businesses
- Closely monitor announcements: The ACCC will only have recourse to its new emergency powers if and when a declaration of exceptional circumstances is made by the Treasurer or a national emergency declaration is in place. As of yet, there have been no declarations of either kind made and so any applications for authorisations must be made using the standard process with the ACCC. Notably, urgent interim authorisations between 24 and 48 hours have previously been granted by the ACCC under the existing regime.
- Keep any competitor collaboration tightly scoped: The new fast-track regime is not a replacement or relaxation of existing competition laws. Cartel conduct and other forms of coordination between competitors remain strictly prohibited and subject to intense regulatory scrutiny – with maximum penalties of up to $100 million available. The ACCC can only make a determination under its new emergency powers if it is satisfied that the proposed conduct would assist, or be likely to assist, in the response to or recovery from the declared crisis. That means that any proposed conduct between competitors must be structured, specific and strictly tied to the crisis response. Strong guardrails against customer allocation, pricing discussions, and any other non-critical coordination must remain in place.
- Engage early with the ACCC: While retrospective authorisation is available under the fast-track regime, it is strictly discretionary. Businesses should approach the ACCC as soon as possible once a relevant crisis declaration has been made in order to manage risk.
If you have any questions, please reach out to Addisons’ Competition/Antitrust & Consumer team.