ACCC exceptional circumstances powers: What businesses need to know

Recent amendments to the Competition and Consumer Act 2010 (Cth) introduce a more agile framework allowing the Australian Competition and Consumer Commission (ACCC) to respond to “exceptional circumstances”, such as pandemics, natural disasters or significant supply chain disruptions caused by geopolitical instability.

The changes have been driven in part by the current fuel shortages and the trading disruptions resulting from the war in the Middle East.

The legislative reforms give the ACCC greater powers to intervene quickly when Australia’s markets are under stress, enabling sectors to continue functioning effectively while preserving core competition protections.

For businesses, the message is clear: expectations can shift quickly in a crisis, and regulatory scrutiny will move just as fast.

Key changes to the Competition and Consumer Act

At its core, the amendments recognise that strict competition rules can sometimes hinder effective crisis responses. The new provisions expand the ACCC’s powers and activities and allow:

• Temporary relief from competition law constraints
  This may apply particularly where coordination between competitors may be necessary to maintain supply chains or essential services. Where such coordination would ordinarily raise cartel or other anti-competition concerns, the ACCC may permit it where necessary to address marketplace disruption.
• Faster regulatory approvals
  This includes a streamlined approval process for urgent collaborations, allowing businesses to respond in real time rather than waiting months for authorisation.
• A more flexible, principles-based approach
  This focuses on whether conduct delivers a net public benefit in the circumstances when weighed against potential competition detriments.
• Increased scrutiny on opportunistic conduct
  This includes pricing behaviour and supply restrictions during times of crisis.

These measures are not a wholesale relaxation of the competition laws. Rather, they are targeted, time-limited mechanisms designed for the ACCC to use in genuine emergencies. The new law recognises that rigid competition settings may need flexibility in exceptional circumstances – but still only within tightly controlled boundaries.

New ACCC powers during crises

The amendments reinforce the ACCC’s role as a crisis-response regulator, expanding its ability to act quickly. In particular, the ACCC can now:

• Grant urgent interim authorisations
  Allows competitors to collaborate (e.g., on supply, logistics or distribution) within days rather than months.
• Impose conditions and time limits
  Ensures that any authorised conduct is tightly scoped, proportionate and temporary.
• Monitor and revoke approvals
  The ACCC retains ongoing oversight and can withdraw authorisation if the conduct exceeds what is necessary.
• Scrutinise crisis-related conduct more closely
  This includes pricing practices, supply decisions and other conduct by businesses that may appear exploitative, particularly to the disadvantage of consumers.

In short, the ACCC has greater flexibility to permit collaboration where there is genuine public benefit, and greater scope to intervene where conduct crosses the line.

When will the ACCC’s new powers be exercised?

The new powers are intended to be used for genuine market disruptions and crises, not for day-to-day commercial challenges. These powers are likely to be used in:

• Natural disasters (e.g. floods, bushfires) disrupting the supply of transport, energy or other essential goods;
• Public health emergencies (e.g. COVID, hantavirus) affecting workforce availability or demand spikes;
• Major supply chain shocks, such as sudden import constraints (e.g. fuel shortages) or geopolitical disruptions (e.g. war, closure of trading routes); and
• Critical infrastructure failures, where coordinated industry responses are required to restore services.

The common thread is urgency and public impact—where coordinated conduct may be necessary to stabilise markets or protect consumers.

What these changes mean for your business

In practice, these reforms have several important implications for how businesses approach collaboration and decision-making during a crisis. Key considerations include:

1. Collaboration with competitors permitted, but controlled
   The reforms create greater scope to work with competitors, but only on a structured and justifiable basis.

2. “Public benefit” remains the key test
   The ACCC will focus on whether conduct is necessary to address the disruption and deliver a broader public benefit (e.g. maintaining supply).

3. Speed increases risk
   Faster approvals can increase the risk of missteps, particularly where your business teams might act before legal review.

4. Temporary measures must remain strictly temporary
   A key enforcement risk is “scope creep” — arrangements that outlast the crisis or expand beyond their original purpose to become embedded into steady-state will not be protected.

5. Expect closer scrutiny of pricing and supply conduct
   Outside of formal collaboration with competitors, the ACCC is also likely to take a firmer stance on conduct perceived as exploitative, particularly in essential goods or services.For example, the conduct of a retailer in significantly increasing the price of essential goods (e.g. bottled water) following a severe supply shock might not be unlawful on its face. However, the ACCC can scrutinise whether such conduct might unfairly take advantage of increased demand, and/or be otherwise unconscionable in the circumstances.

Key takeaways

The rapid passage of these new powers for the ACCC signals a more adaptive competition law framework—one that allows businesses to respond collectively when necessary, but under tight regulatory guardrails.

It also shows a broader regulatory shift: competition law is becoming more and more context-sensitive, and the ACCC is becoming more and more interventionist.

Businesses now have greater flexibility to respond in a crisis, but will also face closer scrutiny.

In practice, crisis responses must be managed with the same discipline as any major regulatory risk. Early legal input, clear documentation and disciplined execution will be critical to navigating both the crisis and the ACCC’s expectations.

For more information on engaging with the ACCC or structuring compliant crisis-response arrangements, please reach out to a member of Macpherson Kelley’s Commercial team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.