Coordination in a crisis: ACCC receives extended authorisation powers

On 13 May 2026, and with limited prior notice, the Federal Government introduced into the Senate the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026, proposing a significant expansion of the ACCC’s powers to authorise coordination between competitors during crisis conditions.

After passing the Senate the next day, it passed the House of Representatives on 25 May and has now been enacted. The Act introduces a new, streamlined pathway, in declared crisis conditions, for the ACCC to permit conduct that would otherwise risk contravening Part IV of the Competition and Consumer Act 2010 (‘CCA’).

Separately, it also allows for an increase in penalties for breaches of the Oil Code of Conduct.

Background

The CCA currently prohibits anti-competitive conduct, including cartel arrangements and coordination between competitors. However, exemptions are available where conduct generates a net public benefit, typically achieved through the ACCC’s authorisation and class exemption processes.

While the authorisation mechanism has previously been used in crisis settings, the Government has stated that the existing framework can be ‘burdensome and slow’, particularly where urgent coordination is required to respond to rapidly evolving market disruptions.

The new law is intended to address those perceived limitations by introducing a new, faster regime that can be applied in defined ‘exceptional circumstances’.

The reform

Ministerial declaration of ‘exceptional circumstances’

The Act inserts into the CCA a new framework that empowers the Minister to declare “exceptional circumstances” where:

• there is actual or likely significant harm to the economy or consumers; and
• it is in the public interest to enable ACCC intervention.

The intention is to create a mid-tier intervention mechanism that sits below the threshold necessary for a formal national emergency.

The legislation deliberately leaves ‘exceptional circumstances’ undefined. While this purportedly provides flexibility in application in response to economic or geopolitical events, this does leave a significant amount of discretion in the hands of the Minister.

To address that concern, the Act provides that a Minister’s declaration:

• may initially operate for up to six months;
• will be subject to disallowance, thereby allowing either House of Parliament to veto the declaration;
• can be extended in three-month increments, subject to disallowance.

Expanded ACCC authorisation powers

A new Division 1A in Part VII of the CCA establishes a streamlined authorisation regime.

The intention of the regime is that that ACCC may, on application by a person, grant authorisation for conduct that would otherwise contravene competition law, where it is satisfied that 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”.

Key elements of the regime include:

• authorisations may apply to multiple parties or classes of participants;
• conduct may be authorised subject to conditions, including ongoing ACCC oversight;
• authorisations may extend to conduct already undertaken during the declaration period; and
• the ACCC must assess public benefit and detriment.

This represents a substantive procedural change, with simplified and accelerated pathways compared to the standard authorisation regime.

New ‘exceptional circumstances’ class exemptions

The Act also introduces a new class exemption power, which allows the ACCC to determine that specified provisions of Part IV do not apply to classes of conduct during a declared period.

These exemptions:

• apply to categories of conduct rather than individual applicants;
• may include limitations by person, circumstance or condition; and
• operate as legislative instruments that will be subject to disallowance by either House of Parliament.

As with the new authorisation regime, the ACCC must be satisfied that the relevant class of conduct would assist with crisis response or recovery and have regard to both the potential public benefits and detriments.

Lifecycle controls and oversight

The regime includes a number of controls intended to limit the scope and duration of exemptions, notably:

• authorisations and exemptions are time-limited, tied to the declaration period;
• the ACCC may vary or revoke approvals where circumstances change; and
• the ACCC must provide written reasons and maintain a register of determinations.

Retrospective operation

A notable feature of the legislation is that authorisations and exemptions may be determined by the ACCC to apply retrospectively, including to conduct occurring from 1 April 2026.

The Explanatory Memorandum states that this allows the regime to cover conduct undertaken during the initial stages of an exceptional event, provided it satisfies the statutory criteria.

Oil Code of Conduct: Increased penalties

The Act also materially strengthens enforcement settings for industry codes that relate to the conduct of suppliers, distributors and retailers in the petroleum marketing industry – at present, the Oil Code of Conduct. Notably:

• infringement notice penalties will be increased to 600 penalty units for a body corporate and 12 penalty units in other circumstances; and
• the maximum penalty that may be prescribed for contravention of a civil penalty provision will be increased to:
  • for corporations, the greater of:
    • $10 million;
    • three times the value of the benefit obtained from the impugned conduct; or
    • if the benefit cannot be determined, 10% of adjusted turnover of the corporate group; and
  • for Individuals, $500,000.

These reforms are intended to ensure stronger deterrence for non-compliance in the petroleum sector. The Oil Code penalty increase comes on the heels of the amendments to the Act in March, where one limb of the general maximum penalty for competition and consumer law breaches was doubled from $50 million to $100 million per contravention. Taken together, these reforms represent a material escalation of enforcement risk across the petroleum sector.

Issues emerging from the Parliamentary debate

With the Act having been brought on urgently, and there being neither a Senate nor House of Representatives inquiry, there have been concerns raised about the circumstances in which the new regime is being established and will have effect.

Breadth of ministerial discretion

Parliamentary debate has focused on the breadth of the declaration power, including:

• the absence of a statutory definition of ‘exceptional circumstances’;
• the potential for application beyond fuel markets; and
• the reliance on ministerial judgment as the trigger for ACCC powers.

This raises questions as to how the power will be applied in practice across different market contexts.

Retrospective coverage of conduct

The retrospective application of the regime has also been a key issue, with concerns raised that:

• it may apply to conduct already under regulatory scrutiny; and
• it could affect the operation of existing ACCC investigations into pricing or supply behaviour.

The Opposition’s position was that, given the Bill’s intended retrospective effect and the lack of specific examples of conduct that the current regime could not handle, there was no clear reason for the Bill’s urgency and a Parliamentary inquiry not to be held.

Impact on traditional competition safeguards

More broadly, debate has centred on whether the regime represents a departure from established competition law safeguards, including:

• reduced procedural scrutiny; and
• potential normalisation of coordination between competitors in crisis settings.

For example, though the ACCC is required to consider both public benefit and public detriment, the ACCC is not required to be satisfied that the public benefit will outweigh the detriment. Rather, it must merely be 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.

Implications for businesses

This new law does not remove or permanently relax competition law prohibitions.

In particular:

• coordination between competitors remains unlawful unless covered by an authorisation or exemption;
• exemptions are limited to declared periods and specific conduct; and
• the ACCC must continue to assess public benefit and detriment in each case.

This is not a general permission for industry-wide collaboration outside the defined statutory framework. However, the reforms do have practical implications for organisations operating in sensitive or supply-critical markets.

• Monitor declarations and regulatory signals: The availability of the new authorisation and class exemption regime depends on a formal declaration of exception circumstances by the Minister. Organisations should consider the circumstances in which the Minister may be prepared to make such a declaration, and closely monitor Government announcements and ACCC guidance during periods of market disruption.
• Prepare for potential coordinated conduct scenarios: Businesses should identify circumstances in which collaboration with competitors may arise during a declared event, particularly in supply-constrained environments.
• Engage early with the ACCC: Applications for authorisation will require evidence that conduct contributes to crisis response or recovery. Early engagement will be critical to managing risk.
• Review competition compliance frameworks: Existing compliance policies may need to be updated to address:
  • the availability of exceptional circumstances exemptions; and
  • governance processes for engaging in authorised coordination.
• Assess exposure for conduct since 1 April 2026: Given the retrospective application of the regime, businesses that have already engaged in any form of coordination with competitors since 1 April 2026 in response to market disruption should assess whether that conduct may be capable of authorisation under the new framework, and consider whether the Minister may make a declaration of exceptional circumstances such that a retrospective authorisation from the ACCC could be sought.
• Manage heightened enforcement risk in the oil sector: Participants in the petroleum sector should take account of substantially increased penalties under the Oil Code of Conduct and enhanced ACCC enforcement capability.

Our competition law team are available to guide businesses wishing to explore the implications of this new regime for them.

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Authored by: 

Adam Walker, Partner