Key points 

• The Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 would amend the Competition and Consumer Act 2010(the CCA) to introduce a new power for the Minister to make exceptional circumstances declarations, and to allow the Australian Competition and Consumer Commission (ACCC) to grant an authorisation or declare a class exemption in relation to conduct that might otherwise breach competition law, when this would assist in responding to the exceptional circumstances. The Bill would also increase the maximum penalties that could apply for breaches of the Oil Code of Conduct for the petroleum marketing industry.
• The ACCC currently has powers to authorise specified conduct on application, or classes of conduct generally, that might otherwise breach some competition laws, where it is in the public interest to do so. This power includes authorising conduct in response to a declared national emergency under the National Emergency Declaration Act 2020 (NEDA).
  • the amendments would provide an additional basis for the ACCC to authorise conduct in circumstances which may not meet the NEDA’s national emergency criteria.
• Ministerial declarations would be open to disallowance by the Parliament. As a result of a Senate amendment introduced by the Greens, class exemptions would also be subject to disallowance.
• Ministerial declarations, and ACCC authorisations and class exemptions may commence retrospectively, but no earlier than 1 April 2026.
• The Oil Code of Conduct does not currently contain any civil penalties. The Bill would amend the CCA to increase the maximum penalties that could be applied to breaches of the Oil Code of Conduct, to reflect the higher penalties available for contraventions of the industry codes for franchising and food and grocery industries.
• At the time of writing, the Bill has not been referred to or reported on by any parliamentary committee.

Introductory Info

Date of introduction: 13 May 2026
House introduced in: Senate
Portfolio: Treasury
Commencement: The day after Royal Assent

Purpose of the Bill

The purpose of the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 (the Bill) is to amend the Competition and Consumer Act 2010 (CCA) to introduce a power for the Minister to make exceptional circumstances declarations. Ministerial exceptional circumstances declarations would enable the Australian Competition and Consumer Commission (ACCC) to authorise and exempt conduct that may otherwise breach competition laws, where that conduct is in the public interest.

The Bill would also amend the CCA to increase the maximum penalties that could apply for contraventions of the mandatory Oil Code of Conduct for the petroleum industry.

Currently, no civil penalty provisions apply for non-compliance with the Oil Code of Conduct. The Bill would increase the maximum penalty that could be applied where suppliers, distributors or retailers of declared petroleum products, such as unleaded petrol and diesel, contravene the Code. The penalties would be aligned with the significant maximum penalties that exist for breaches of the food and grocery and franchising codes.

Structure of the Bill

The Bill contains 2 schedules:

Schedule 1 would amend the CCA to establish the Minister’s power to make exceptional circumstances declarations, and to set out the powers and procedures of the ACCC to authorise conduct to which Division 1 or 2 of Part IV of the CCA may or would apply.

Schedule 2 would amend the CCA to enable higher civil penalties to apply to contraventions of the existing mandatory Oil Code of Conduct for the petroleum industry.

Background

Existing ACCC authorisation powers

The power for the ACCC to authorise, on application, specified conduct that would or might otherwise contravene competition laws exists under section 88 of the CCA.

An authorisation may be granted in respect of specified conduct to which Division 1 or 2 of Part IV of the CCA would or might otherwise apply. Part IV of the CCA is aimed at prohibiting a range of anti-competitive conduct, such as prohibiting collusion between parties that are actual or potential competitors (Explanatory Memorandum (EM) (para 1.3)). Division 1 of Part IV concerns cartel conduct, and Division 2 concerns a range of conduct such as contracts and arrangements that substantially lessen competition, misuse of market power, and secondary boycotts.

The ACCC maintains a register of authorisations that are currently being considered as well as those which have been completed, and publishes information on the process for applying for such authorisations. Before making an application, potential applicants may discuss the matter with, or submit a draft application to, the ACCC for review and guidance.

The ACCC also maintains a register of class exemptions, including current exemptions under consideration.

Current assessment criteria

Once the ACCC has received an application, it will assess the application in accordance with the criteria in the CCA. Specifically, under subsection 90(7), the ACCC must not grant an authorisation for conduct unless:

• Paragraph 90(7)(a): the ACCC is satisfied that the conduct would not, or would not be likely to, have the effect of substantially lessening competition or
• Paragraph 90(7)(b): the ACCC is satisfied that the conduct would, or is likely to, result in a benefit to the public, and the benefit would outweigh the detriment that would, or would likely, result from the conduct or
• Paragraph 90(7)(c): a national emergency declaration is in force, as defined in the National Emergency Declaration Act 2020(NEDA) and
  • the ACCC is satisfied that the conduct would, or would likely, assist in the response to or recovery from the emergency and
  • the ACCC is satisfied that the benefit to the public from the conduct and assistance or likely assistance would outweigh the detriment to the public that would result, or would likely result, from the conduct.

Subsection 90(8) provides that an authorisation is not allowed under paragraph 90(7)(a) if the conduct would be captured by:

• cartel conduct provisions (Division 1 of Part IV)
• secondary boycott provisions (sections 45D to 45DB)
• provisions relating to arrangements with unions affecting the supply or acquisition of goods or services (sections 45E to 45EA)
• resale price maintenance provisions (section 48)

where an authorisation would instead need to be granted under paragraphs 90(7)(b) or (c).

As explained by the ACCC, the new merger control regime commenced 1 January 2026, and the granting of authorisations no longer applies for mergers (subsection 90(16)).

National emergency declarations

Under the NEDA, the Governor-General may declare a national emergency, on the advice of the Prime Minister, if the Prime Minister is satisfied that:

• an emergency has recently occurred, is occurring or is likely to occur (whether in or outside Australia) and
• the emergency has caused, is causing or is likely to cause nationally significant harm in Australia or in an Australian offshore area and
• any of the following subparagraphs apply:
  • the governments of each state and territory in which the emergency has caused, is causing or is likely to cause nationally significant harm have requested, in writing, the making of the declaration, or because of the emergency, it is not practicable for such a request to be made
  • the emergency has affected, is affecting or is likely to affect Commonwealth interests
  • the making of the declaration is appropriate, having regard to the nature of the emergency and the nature and severity of the nationally significant harm and
• for reasons relating to emergency management, it is desirable for the declaration to be made for the purposes of one or more national emergency laws.

Nationally significant harm is harm that has a significant national impact because of its scale or consequences and is any of the following:

• harm to the life or health (including mental health) of an individual or group of individuals
• harm to the life or health of animals or plants
• damage to property, including infrastructure
• harm to the environment
• disruption to an essential service.

A national emergency declaration can be made for a period of up to 3 months, and may be extended more than once, but each period of extension must not exceed 3 months.

Introduction of the Oil Code of Conduct

The Oil Code of Conduct is found in Schedule 1 to the Competition and Consumer (Industry Codes—Oil) Regulations 2017.

The Oil Code of Conduct was first introduced in 2006 in conjunction with the Petroleum Retail Legislation Repeal Act 2006, as the Competition and Consumer (Industry Codes‑Oilcode) Regulation 2006 (2006 Oil Code). The 2006 Oil Code sunsetted in 2017 and was replaced by the current Code. It is administered by the Department of Climate Change, Energy, the Environment and Water.

The 2019 Parliamentary Joint Committee on Corporations and Financial Services inquiry into the operation and effectiveness of the Franchising Code of Conduct did not focus on the Oil Code specifically, but its Report made recommendations relating to the Oil Code, including that ‘civil pecuniary penalties and infringement notices should be made available for all breaches of the Franchising and Oil Codes. Further, the penalty amounts should be similar to the penalties currently available under the Australian Consumer Law to ensure meaningful deterrence.’ (p. xix)

An independent review of the Oil Code of Conduct, undertaken by Ernst & Young in 2023, found that the Oil Code was operating successfully, was fit for purpose and was meeting its policy objectives (p. 3). However, it also made several recommendations, such as further alignment of the Oil Code with the Franchising Code. While the report did not make a specific recommendation to introduce civil penalties for the Oil Code, it did state that ‘[t]o provide further incentive to comply with the Oil Code, civil penalties can be considered for the Oil Code. Breaches of the Oil Code may be accompanied with penalties of 600 penalty units to deter non-compliance …’ (p. 21)

Policy position of non-government parties/independents

In debate before the Senate on 13 and 14 May 2026, several non-government senators made second reading speeches on the Bill. A summary of comments is provided here and select quotes from senators are provided below where relevant to specific provisions of the Bill.

Page references in this section are references to the proof Senate Hansard.

Sufficiency of current laws to respond to exceptional circumstances

A recurring theme in speeches by Coalition senators was that existing laws were adequate to grant authorisations quickly. For example, Senator Canavan pointed to the fact that the ACCC can currently provide interim authorisations quickly and can respond to exceptional circumstances, such as during the COVID-19 pandemic, saying ‘[g]iven that, and given that the authorisation process can clearly work within a week, within 24 hours, what is exactly the justification for this bill? It seems very flimsy.’ (Senate Hansard, p. 14)

Senators McDonald, Brockman, Blyth, Sharma, Cadell and Colbeck and were among those who suggested the existing system was sufficient, and queried the need for these new powers. Senator Roberts of One Nation shared these concerns.

Senator Hume called on the Government to explain the need for the proposed amendments:

I call on the government to explain these changes, to allow for that proper parliamentary scrutiny and to tell Australians the truth: why are these laws needed? Why are these exceptional powers needed? And why are they needed urgently? Why are they retrospective? Why are they more expansive than anything that was requested during the pandemic or in past fuel crises? Why are the powers in this bill not limited to just a fuel crisis? Why are they so far-reaching and so expansive? Why not let stakeholders have their say, have their feedback, to ensure that there aren't any unintended consequences, and why is the bill not time-limited? Why is it not sunsetted? This seems to be an enormous risk, but the payoff hasn't been explained. (pp.18–19).

Senator McKim expressed support for the Bill: ‘The Greens are not going to stand in the way of this bill. It ensures that people have access to essential goods and services in times of crisis’. However, he caveated this support on the basis of the need for parliamentary oversight of exemptions issued by the ACCC following an exceptional circumstances declaration (p. 18). Senator McKim moved an amendment to allow a class exemption to be disallowed by the Parliament, which was approved by the Senate.

Time available for review of the Bill

Senators McDonald, Brockman, Blyth and Sharma all questioned what they saw as the Bill being rushed through Parliament, and stated that further Parliamentary scrutiny, including Senate committee scrutiny of the Bill, would be warranted.

Senator Hume stated that ‘What the bill does is important’, but that the laws were presented to parliament ‘with absolutely no time to consider them and with no means of ongoing parliamentary oversight.’ (p. 18)

Senator Dean Smith spoke about the lack of scrutiny for the Bill. He emphasised that the ACCC’s exemption power, which would not be subject to disallowance, warranted closer examination of the Bill (pp. 102–103).

Retrospective operation

Several senators criticised the potential retrospective operation of the Bill. Senators Canavan, Hume, Brockman, Blyth, Sharma and Cadell all posed similar questions as to the retrospective operation of the Bill.

Senators Brockman (p. 23) and Cadell (p. 101) queried why more time was not taken for further inquiry into the Bill if the Bill has retrospective operation.

Senator Roberts stated that the Bill was backdated to cover up profiteering from the fuel crisis (p. 12).

Scope of powers to be granted and non-disallowance

Coalition Senators questioned the breadth of the powers given to the Minister and noted that the power to make declarations was not confined to present economic crises.

Senator Blyth stated that it was extraordinary that the ACCC’s decisions to provide exceptions to competition law would not be disallowable by Parliament (p. 24).

Delay of publication of authorisation information on the register

Senators Brockman (p. 23), Sharma (p. 27) and Cadell (p. 102) queried the rationale for delaying publication of information on the proposed register, rather than requiring immediate notification.

Oil Code of Conduct changes

Most senators focused their commentary on the proposed Ministerial powers in the Bill and did not comment on the proposed changes to the Oil Code of Conduct. Senator McKim expressed support for the introduction of civil penalties for contravention of the Oil Code of Conduct (p. 18).

Proposed amendments

Reflecting the range of concerns expressed in debate of the Bill in the Senate, Senator Canavan proposed an amendment to the second reading speech, calling for the Bill to be referred to the Senate Economics Legislation Committee for inquiry and report, with particular reference to:

1. whether the existing Australian Competition and Consumer Commission (ACCC) powers are genuinely inadequate;
2. whether the Treasurer’s declaration power is too broad;
3. whether ACCC exemptions should be disallowable;
4. whether transparency requirements are strong enough;
5. whether the retrospective start date is justified;
6. whether the powers are properly limited in time and scope; and
7. whether there should be stronger sunset and review mechanisms.

The proposed amendment was rejected by the Senate.

Key issues and provisions

Schedule 1 to the Bill would insert new divisions into Part VII of Chapter 6 of the CCA, which deals with authorisations and notifications. Schedule 1 would commence the day after Royal Assent (clause 2).

Item 6 of Schedule 1 would insert a new Division 4 into Part VII, allowing the Minister to make declarations of exceptional circumstances.

Item 4 of the Bill would insert a new Division 1A into Part VII, setting out the powers and procedures for the ACCC to grant authorisations in exceptional circumstances and emergencies.

The current provision allowing the ACCC to grant authorisations under national emergency declarations would be repealed by Item 2.

Owing to the tight timeframe for consideration of the Bill, no industry or other stakeholder views were available at the time of writing.

Ministerial power to make exceptional circumstance declarations

The new Division 4 of Part VII, introduced by Item 6 of Schedule 1, would comprise proposed section 95AE and proposed section 95AF.

Proposed section 95AE would allow the Minister to make a declaration by legislative instrument that the Minister is satisfied that:

• exceptional circumstances exist or are likely to exist, that are either causing or would cause significant harm to the Australian economy or Australian consumers (paragraph95AE(1)(a)) and
• it is in the public interest to empower the ACCC to make determinations under either or both of proposed sections 92D and 95AC, to be introduced by items 4 and 5 of Schedule 1.

The EM states that ‘exceptional circumstances’ is taken to have its natural and ordinary meaning, and that the term is not defined in the legislation to not limit circumstances in which such a declaration may be made, and to ensure flexibility. Such circumstances may not meet the criteria for a NEDA national emergency declaration, discussed above (EM, para 1.10).

A ministerial exceptional circumstance declaration is a disallowable legislative instrument (EM, para 1.12).

Commentary on scope of powers

Some senators questioned the breadth of the Minister’s proposed powers under the Bill.

Senator Canavan stated (p. 16):

… while the government has hinged its argument on the need to deal with this fuel crisis, this bill is a lot broader than that. It doesn't restrict the Treasurer's definition or declaration of an exceptional circumstance to only this crisis or for only the next few months. Instead it gives a new, broad power that could be used for any potential reason going forward, if and when a treasurer decides there's an exceptional circumstance.

In debate of the Bill in the Senate, Senator Canavan moved an amendment that would have repealed the provisions allowing the Minister to make an exceptional circumstances declaration and those allowing the ACCC to make a class exemption (discussed below) on 2 July 2026. The amendment was negatived by the Senate.

Duration of Ministerial declarations

Declarations by the Minister are in force until the day specified in the declaration, or until the declaration is revoked. The day specified in the declaration must be no longer than the period considered necessary by the Minister for the purposes of emergency of management and may not be for a period longer than 6 months (proposed subsections 95AE(2) and (3)).

However, declarations may be extended if the Minister is satisfied that the exceptional circumstances are likely to continue to exist beyond the initial declaration period. The Minister may extend the declaration more than once, but each period of extension must not exceed 3 months (proposed section 95AF).

Authorisations and class exemptions in exceptional circumstances and emergencies

Once the Minister has made an exceptional circumstances declaration, or the Governor‑General has made a national emergency declaration under the NEDA (discussed above), the ACCC is empowered to:

• on application, grant an authorisation for a person to engage in specified conduct that would otherwise breach one or more provisions in Division 1 or 2 of Part IV of the CCA (proposed Division 1A of Part VII of the CCA)
• make a determination (a class exemption) that one or more provisions in Division 1 or 2 of Part IV of the CCA do not apply to specified conduct (proposed sections 95AC and 95AD of the CCA).

Authorisations

Proposed Division 1A of Part VII, Authorisations in exceptional circumstances and emergencies at item 4 of Schedule 1, would comprise proposed sections 92A to 92H.

Proposed section 92B would empower the ACCC to, on application, grant an authorisation to a person to engage in specified conduct to which one or more provisions of Division 1 or 2 of Part IV would or might apply. The effect of an authorisation is that the relevant provisions of Division 1 or 2 of Part IV, as specified in the authorisation, do not apply to persons covered by the authorisation. This means that conduct may be authorised that would otherwise breach provisions that, for example, prohibit cartel conduct (such as arrangements for price‑fixing or allocating customers, suppliers or territories by parties that would otherwise be in competition) or prohibit arrangements that restrict the supply or acquisition of goods to or from a third party.

The ACCC may specify conditions that must be complied with for an authorisation to be effective. The EM explains that this would allow the ACCC to address elements of the conduct which are a cause for concern, rather than denying the application outright (para 1.58).

An authorisation may apply to conduct engaged in prior to the ACCC deciding the application (proposed subsection 92B(6)).

Applications for authorisations would need to be made in the form approved by the ACCC and accompanied by information or documents prescribed in the regulations (proposedsection 92C). Applicants could withdraw an application at any time (proposedsubsection 92B(7)).

Proposed section 92D provides for the ACCC to determine applications. The ACCC would be empowered to approve an application for an authorisation if an exceptional circumstances declaration or a national emergency declaration is in force and the ACCC is satisfied that, in all the circumstances, the conduct to be authorised would, or would be likely to, assist in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates.

In determining an application, the ACCC must have regard to:

• the likely public benefits resulting from the assistance, or likely assistance, in response to or recovery from the exceptional circumstances to which the declaration relates and
• the detriment to the public that would, or would likely, result from the conduct.

The ACCC may also have regard to any other public benefit that would result or likely result from the conduct.

A determination must specify the exceptional circumstances or emergency to which it relates. The ACCC must set out the reasons for its decision on an application in writing and give the applicant written notice of that decision.

Proposed section 92E would provide for the periods for which authorisations remain in force. An authorisation starts on the day specified within it, which may be before the commencement of Schedule 1, but not before 1 April 2026. The period must end at the earliest of:

• the start of the day specified in the determination
• the day the determination is revoked or
• the end of the last day on which the relevant exceptional circumstances declaration or national emergency declaration is in force.

Proposed section 92F would allow the ACCC to vary an authorisation at any time, if it is considered appropriate to do so. The preconditions for varying an authorisation reflect those that apply to the making of the original authorisation. That is, the ACCC must be satisfied that the conduct specified in the authorisation as varied would, or would likely, assist in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates; and the ACCC must consider the public benefits and detriment likely to arise from the varied authorisation.

Proposed section 92G would empower the ACCC to revoke an authorisation at any time, if it considers that:

• the conduct covered by the authorisation would not, or would not likely, assist the response to or recovery from the exceptional circumstance or emergency
• the conduct is not appropriate
• the authorisation was granted on the basis of information or evidence that is false or misleading in a material particular or
• a condition of authorisation has not been complied with.

The ACCC would be required to give details of the revocation in writing to the person who applied for the authorisation, advising the date on which the revocation takes effect.

Proposed section 92H would require the ACCC to maintain a register of applications for, and variations and revocations of, authorisations under Division 1A. This would include the reasons given for such determinations.

The ACCC will not be required to include the determination of an application on the register until the end of the period of 7 business days beginning on the day that the relevant exceptional circumstances declaration or national emergency declaration ceases to be in force (or, if both are in force, the later of the days on which they cease to be in force). For clarity, the timeframe for inclusion on the register does not relate to the date on which a determination of an application for authorisation is made. It relates to the date on which the declaration underlying the authorisation ceases to be in force.

As discussed above, a declaration of exceptional circumstances may apply for an initial 6‑month period, which may be extended more than once, by up to 3 months at a time; while a national emergency declaration can be made for a period of up to 3 months, and may be extend more than once, by up to 3 months at a time. A determination of an application would only be required to be included on the register 7 days after the relevant declaration ceases.

The EM states:

This is on the basis that in the case of an economic shock there may be the need to limit publication of an authorisation as early disclosure of the proposed conduct may not be in the public interest (para 1.74).

Class exemptions

Item 5 of Schedule 1 would insert proposed sections 95AC and 95AD into Division 3 of Part VII of the CCA, dealing with class exemptions in exceptional circumstances.

Proposed section 95AC would empower the ACCC to determine that specified provisions of Division 1 or 2 of Part IV do not apply to a kind of conduct specified in the determination, if an exceptional circumstances declaration or a national emergency declaration is in force and the ACCC is satisfied that, in all the circumstances, the conduct to be specified in the determination would, or would be likely to, assist in the response to or recovery from the exceptional circumstances or emergency to which the declaration relates. Such a determination is also referred to in the Bill as a class exemption.

In making a class exemption, the ACCC must have regard to:

• the likely public benefits resulting from the assistance, or likely assistance, in response to or recovery from the exceptional circumstances to which the declaration relates and
• the detriment to the public that would, or would likely, result from the conduct.

The ACCC may also have regard to any other public benefit that would result or likely result from the conduct.

The ACCC would be able to limit the class exemption:

• to persons of a specified kind
• to circumstances of a specified kind and/or
• to conduct that complies with specified conditions.

A condition may include the requirement to obtain the approval of the ACCC before engaging in certain conduct.

A class exemption may start before the commencement of Schedule 1, but may not start before 1 April 2026, and will end on the earliest of:

• the start of the day specified in the class exemption the day the class exemption is revoked or
• the end of the last day on which the relevant exceptional circumstances declaration or national emergency declaration is in force.

The effect of the class exemption is that specified provisions of Division 1 or 2 of Part IV do not apply to conduct covered by the exemption.

Businesses need to consider whether their conduct falls within the class exemption once such an exemption is in force (EM, para 1.24).

A class exemption is a legislative instrument but the Bill as introduced provided that it was not disallowable by the Parliament.

The EM states that this exemption was necessary and appropriate as the determination can be made only in limited circumstances where an exceptional circumstances declaration is in place, and the declaration instrument is subject is to disallowance. The exemption of such determinations from disallowance was stated to be imperative so businesses have the confidence to undertake conduct which would otherwise not be permitted under competition law and avoid commercial uncertainty (para 1.36).

In debate on the Bill in the Senate, Senator McKim moved an amendment to allow a class exemption to be disallowed by the Parliament. The amendment was agreed by the Senate and will be reflected in the Bill introduced into the House.

Proposed section 95AD would provide that the ACCC can withdraw the benefit of a class exemption from a person by written notice if it considers that the conduct of a kind specified in the exemption is not appropriate, or would not assist or be likely to assist with the response to or recovery from the relevant emergency or exceptional circumstances. The notice must include reasons. While the notice is in effect, the class exemption does not apply to the specified conduct engaged in by the person.

The notice comes into force when it is given to the person and ceases to be in force at the earlier of the time the class exemption ceases to be in force and the day after the ACCC advises the person that it is revoking the notice.

Retrospectivity

ACCC authorisations and class exemptions, as well as Ministerial declarations, may commence retrospectively (proposed paragraphs 92E(a), 95AC(7)(a) and 95AE(2)(a)). The start date may be a day before the commencement of Schedule 1, but not before 1 April 2026.

In relation to the Minister’s declarations, the EM points to paragraph 15(7)(a) of the NEDA and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 as legislation with similar retrospective provisions, which were necessary in order to respond to emergencies. The EM states that such retrospective provisions must comply with the requirements under the Legislation Act 2003, and that the public will not be disadvantaged by, and will instead benefit from, such retrospective provisions (EM, para 1.18–1.21).

However, it is at least theoretically possible that some people will be disadvantaged by the ACCC making an authorisation under proposed section 92D or a class exemption under proposed section 95AC. Under both provisions the ACCC is required to have regard to both the likely public benefits and likely detriment to the public. While the ACCC is only permitted to grant an authorisation or exemption if 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, there is no requirement that detriment will not result.

While authorisations are not legislative instruments, class exemptions are, and as such, will be impacted by subsection 12(2) of the Legislation Act, which provides that an instrument or provision of an instrument does not apply in relation to a person to the extent that as a result of the retrospective commencement the person’s rights as at the time the instrument is registered would be affected so as to disadvantage the person or impose liabilities on them.

Opposition views on retrospectivity

Several senators queried the necessity of retrospective provisions. For example, Senator Canavan stated (p. 15):

… if it's needed to deal with something urgently, quickly, and to keep fuel moving, why does this bill exempt conduct that occurred in the past? Keep in mind that this bill allows the Treasurer to declare exceptional circumstances going back to 1 April this year. That's going back more than a month, six weeks or so. Why is that urgent?

Senator McDonald stated that the retrospectivity ‘smacks of a cover-up of decisions that were improperly made, leading to the government now seeking to introduce legislation to fix their inadequacies’ (p. 21).

In debate of the Bill in the Senate, Senator Canavan moved an amendment that would have provided that Ministerial declarations, and ACCC authorisations and class exemptions could not commence before the commencement of Schedule 1. The amendment was negatived by the Senate.

Increasing potential penalties for contravening the Oil Code of Conduct

Schedule 2 to the Bill would amend the CCA to increase the penalties that may be imposed for contraventions of the Oil Code of Conduct. The Oil Code of Conduct does not currently contain any civil penalty provisions.

Schedule 2 proposes amendments to Part IVB of the CCA, which deals with Industry Codes. Responding to recommendations in the Final Report of the Independent Reviewer of the Food and Grocery Code of Conduct, the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 significantly increased the maximum penalties available for breaches of the Food and Grocery Code of Conduct. The new maximum penalties align with the maximum penalties for breaches of the Franchising Code of Conduct.

As a result of the 2024 amendments, some penalties specified in Part IVB of the CCA differ according to whether a contravention of an industry code relates to the franchising or food and grocery industries, or another industry. Higher maximum penalties are specified for contraventions of civil penalty provisions of food and grocery industry codes. The amendments proposed by Schedule 2 will make these higher maximum penalties available for breaches of the Oil Code of Conduct, should that Code be amended to create civil penalty provisions.

Section 51AE of the CCA deals with regulations relating to industry codes. It sets out the maximum penalty that may be imposed for a contravention of an industry code and differentiates between codes that deal with franchising or the food and grocery industry and other codes. The difference in the maximum penalty available for the distinct categories of code is significant.

Under subsections 51AE(2A) the maximum penalties that may be prescribed for a breach of a civil penalty provision in a franchising or food and grocery code are:

• for a body corporate, the greatest of:
  • $10 million
  • if the Court can determine the value of the benefit obtained directly or indirectly as a result of the breach ­- 3 times that value
  • if the Court cannot determine the value of that benefit - 10% of the body corporate’s adjusted turnover during the 12-month period ending at the end of the month in which the breach occurred or started.
• $500,000 for person who is not a body corporate.

In contrast, the maximum penalty applicable to a breach of a civil penalty provision in a code for an industry other than the franchising or the food and grocery industry is 600 penalty units (currently $198,000, to be indexed on 1 July 2026).

Items 2 to 6 of Schedule 2 will amend section 51AE to apply the higher maximum penalty, currently applicable to the franchising code or the food and grocery industry code, to a code that covers suppliers, distributors and retailers in the petroleum marketing industry.

Section 51ACC allows an infringement notice to be issued for an alleged contravention of a civil penalty provision of an industry code as an alternative to court proceedings for an order for the payment of a pecuniary penalty. Section 51ACF of the CCA sets out the penalty to be specified in such an infringement notice. For a breach of the food and grocery code, the penalty is 600 penalty units for a body corporate, or 12 penalty units for a person who is not a body corporate. For a breach of another code, the infringement notice penalty is 60 penalty units for a body corporate, or 12 penalty units for a person who is not a body corporate.

Item 1 of Schedule 2 will amend section 51ACF to apply the higher maximum penalty, currently applicable to the food and grocery industry code, to a code that covers suppliers, distributors and retailers in the petroleum marketing industry.

The amendments proposed in Schedule 2 would apply in relation to contraventions that happen, or are alleged to happen, on or after the day that the Schedule commences. As set out above, amendments will be required to the Oil Code of Conduct in order to introduce civil penalties for contraventions of that code.

Significant maximum penalties for breaches of industry codes

The higher maximum penalty for an infringement notice for a body corporate for contravention of a civil penalty provision of an industry code is higher than recommended in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (EM, para 2.15). The EM states that this is necessary, given the size and turnover of the suppliers, retailers and wholesalers regulated under the Oil Code of Conduct, to ensure the penalty acts as a meaningful deterrent (EM, paras 2.14–2.15).