Thirteen days, pointed backwards

On 23 June 2026 a determination of the Australian Competition and Consumer Commission took effect and switched off part of the cartel law. Signed by Acting Chair Catriona Lowe on 24 June 2026 and registered the next day, it provides that 'Subject to subsection (2) and the limitations specified in Division 2, sections 45AF, 45AG, 45AJ, 45AK, 45 and 47 of the Act do not apply to the following conduct by a corporation', and then sets out five limbs covering preparing for a government or non-government meeting, participating in it, holding subsidiary discussions to it, formally agreeing a plan there and implementing the plan agreed. Those sections are the cartel offence and the civil prohibitions on making and giving effect to a cartel provision, the prohibition on anti-competitive contracts and arrangements, and the prohibition on exclusive dealing. Agreements on price are carved out, and the exemption is gatekept meeting by meeting, a set of conditions returned to below.

The determination could take effect because eight days earlier the Treasurer had signed a declaration. The Competition and Consumer (Exceptional Circumstances) (No. 1) Declaration 2026 is dated 15 June 2026, was registered on 22 June 2026 and commenced the day after registration. The declaration could be made at all because of an Act that went from introduction to assent in thirteen days, that no parliamentary committee reported on, and about which the Parliamentary Library recorded that no stakeholder views were available.

Speed is the smallest part of it. On the new track the ACCC never has to find that public benefit outweighs public detriment, only that the conduct would assist a response or recovery. Tribunal merits review is excluded. An individual authorisation is not a legislative instrument, so it cannot be disallowed by Parliament. It does not have to go on the public register until seven business days after the declaration that produced it has ended. And it can be given a start date before the Act itself commenced, back to 1 April 2026, a floor sitting 56 days before Schedules 1 and 2 came into force.

Australian law already allowed competitors to coordinate in a crisis. In March 2026 the ACCC granted interim authorisation to the fuel majors two days after they lodged, stated in its release that authorisation had not been sought or granted for them to share information about or reach agreement on price, and opened public consultation on 24 March 2026. That is the benchmark, and it is what the fast track built in May 2026 leaves out. The coordination was kept. The accountability around it was not.

01Thirteen days

The chamber of origin took two sitting days. Second reading debate ran on 13 and 14 May 2026, the second reading was agreed on 14 May, the Committee of the Whole entry for that day is recorded on the bill homepage as '1 Australian Greens agreed to', and the third reading was agreed the same day. The House of Representatives then did the entire job on 25 May 2026: introduction, second reading, debate, consideration in detail and third reading. The Bill finally passed both Houses that day.

No committee had been given it. The Bills Digest of 22 May 2026 states: 'At the time of writing, the Bill has not been referred to or reported on by any parliamentary committee.' Kevin Hogan (Page, National Party, Deputy Manager of Opposition Business in the House) moved a second reading amendment on 25 May 2026, seconded by Garth Hamilton MP, to send it to one. The motion named seven questions, and it named them precisely.

The transcript does not record the outcome. The question was put and the debate was 'interrupted in accordance with standing order 43'. The Bills Digest records that a referral amendment moved by Senator Matthew Canavan, whose references closely match Hogan's later motion, was rejected by the Senate.

The Parliamentary Library's own analysis arrived after the fact. Bills Digest No. 64, 2025-26 is dated 22 May 2026, eight days after the Senate had finished with the Bill. Its key points page also states: 'Owing to the tight timeframe for consideration of the Bill, no industry or other stakeholder views were available at the time of writing.'

Update, 7 October 2026. The references, previously bare links, now name each document. The Bills Digest reference now links to the Parliamentary Library's web edition of Bills Digest No. 64, 2025-26 rather than its PDF, and the Senate debate reference now links to OpenAustralia's record of the 13 May 2026 Senate debate on the Bill. Nothing in the text changed.

Update, 8 October 2026. Reference ² now links directly to the Revised Explanatory Memorandum, which carries the passages quoted here, in place of the Parliament's bill home page. Reference ¹ no longer lists the exclusion of Tribunal merits review among the passages of the Act it supports, because the Act's text does not mention it; that point rests on the Revised Explanatory Memorandum at paragraph 1.85 ². Reference ¹¹ now says the amendment declaration was registered on 18 August 2026 and in force from the next day. Nothing in the text has changed.

02The switch

The scheme turns on one section. Section 95AE(1) reads: 'The Minister may, by legislative instrument, make a declaration under this section if the Minister is satisfied that: (a) either: (i) exceptional circumstances that are causing significant harm to the Australian economy or Australian consumers exist'. The second limb is that a declaration is in the public interest. Two states of ministerial satisfaction, and the whole apparatus is live.

No formal emergency is required. Sections 92D(2) and 95AC(2) each accept either a declaration under s 95AE or a national emergency declaration within the meaning of the National Emergency Declaration Act 2020, and either will do. Schedule 1 Part 2 wires the older regime into the new one, amending s 10 of that Act to omit 'section 88 or 90' and insert 'section 92D or 95AC'. Nor is anyone consulted first. The explanatory statement gives the reason with the rule: 'Due to the often urgent need to resolve the exceptional circumstances that would be the subject of the declaration, the Act does not require the Minister to undertake consultation prior to making a declaration.' It says this helps reduce the time involved in granting authorisations and class exemptions.

The switch has been thrown once. The declaration carries the signature block 'Dr Jim Chalmers / Treasurer' and the making words record him 'being satisfied of the matters set out in paragraphs 95AE(1)(a) and (b)'. Section 5(2) identifies the circumstances as 'the disruptions to global supply chains arising from the conflicts in the Middle East commencing in February 2026' and disruptions to shipping through the Strait of Hormuz. Section 6 as made gives no calendar end date, only a period ending six months after commencement; the ACCC calculates that as 22 December 2026. An amendment declaration signed on 17 August 2026 by Dr Andrew Leigh, Assistant Minister for Productivity, Competition, Charities and Treasury, and registered the next day, extended it to the state and territory Competition Code and replaced paragraph 6(a) with a fixed start of 23 June 2026. It did not extend the period and did not widen the sectoral scope.

03The test that stopped being a test

Once a declaration is in force, s 92D(1) provides that the ACCC 'may, in respect of an application for an authorisation under this Division: (a) make a determination in writing granting such authorisation as it considers appropriate'. Without a declaration in force the Commission has no power to determine an application or make a class exemption at all. With one, the only statutory bar it must clear is this.

Section 92D(4) then requires the ACCC only to have regard to the likely public benefit from that assistance and to the public detriment, and it may have regard to any other public benefit. Nowhere is it required that benefit outweigh detriment. Sections 95AC(3) and (4) are word for word parallel for class exemptions. Section 92D(8) bars merger authorisations on this track.

Set that against the ordinary route. Under s 90(7) the ACCC must not authorise unless satisfied either that the conduct would not substantially lessen competition, paragraph (a), or that the benefit to the public would outweigh the detriment, paragraph (b). Section 90(8) shuts cartel conduct, secondary boycotts, arrangements with unions under ss 45E to 45EA and resale price maintenance out of paragraph (a) altogether. Before this Act those had to go to paragraph 90(7)(b) or to the emergency limb 90(7)(c). Schedule 1 repealed 90(7)(c), so on the ordinary route cartel conduct must now clear the outweighing test.

On the ordinary route, cartel conduct must be worth more than it costs. On the fast track, it need only help.

The Tribunal is out of it too. The Revised Explanatory Memorandum states at 1.85 that the new decisions 'are not subject to merits review by the Tribunal' and that 'A person's right to seek judicial review of a decision is unaffected.' The justification at 1.89 is that these decisions carry a public interest element, 'a need to take rapid action to restore or maintain investor confidence in the market', and an aspect making them 'essentially government financial policy decisions, rather than decisions about the merits of particular applications'. That is the government's description of a decision that exempts applicants from the cartel prohibitions: financial policy, not merits.

04The mechanism to watch is the authorisation nobody sees

The Bills Digest confirms the trigger in terms, noting that the timeframe does not relate to the date a determination is made: 'It relates to the date on which the declaration underlying the authorisation ceases to be in force.' Helen Haines put the same point to the House on 25 May 2026: 'The ACCC keeps a register of authorisations, but publication of the register does not have to occur while the declaration is in place.' Applied to the declaration now in force, which the ACCC calculates as ending on 22 December 2026, nothing granted under it need be visible until after that.

There is no other place to look. An individual authorisation under s 92D(1) is 'a determination in writing'. It is never declared a legislative instrument, so it does not appear on the Federal Register of Legislation, and no disallowance attaches to it. Class exemptions are different: s 95AC(10) declares a class exemption determination to be a legislative instrument and applies s 42 of the Legislation Act 2003, disallowance, despite anything in s 44 of that Act. There is no equivalent provision anywhere in Division 1A.

The one disallowance power over an ACCC instrument was not in the Bill as introduced. The Bills Digest records: '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.' The bill homepage records the Committee of the Whole entry for 14 May 2026 as '1 Australian Greens agreed to'. Hogan's adjacent sentence describes what remains: 'It means that parliament can reject the broad declaration, but it cannot directly disallow the specific exemptions that may affect competition in particular markets.'

Even the length of the blackout is stated two ways. The ACCC's process page for the new track says: 'We will publish the determination on the authorisations register, no later than 7 days after the relevant government declaration ends.' Section 92H(3) says seven business days. The same page states that there is no fee for streamlined authorisation applications and that assessment 'may include consultation with stakeholders', which is a may, not a must.

A register that opens only after the thing it records has ended is a receipt, not a check.

05Backdated fifty-six days, used for two

The same 1 April 2026 floor appears three times, at ss 92E(a), 95AC(7)(a) and 95AE(2)(a), covering individual authorisations, class exemptions and the Minister's own declaration. The wording is not uniform: the first two fix on the day specified in the determination, the third on the day specified in the declaration. Separately from the date floor, s 92B(6) provides that 'The Commission may grant an authorisation for conduct engaged in before the Commission decided the application.' The italic heading immediately above it reads 'Past conduct'.

So far the reach has been short. The declaration starts prospectively, on the day after its registration. The class exemption reaches back two days from registration and one from making: paragraph 42 of its explanatory statement records that 'The class exemption came into force on 23 June 2026 and will remain in force until the Treasurer's declaration expires.' No registered instrument specifies a start date earlier than 23 June 2026. The power to reach back to 1 April 2026 exists in three provisions of the Act and has not been used. It is loaded and unfired.

The legality argument for the reach-back has a defect on its face. Paragraph 1.20 of the Revised Explanatory Memorandum rests the case on 'subsections 92C(4) and 95AC(4)', concluding that 'As a determination should only have beneficial application' its commencement before registration is consistent with s 12(2) of the Legislation Act 2003. In the Act as passed, s 92C is headed 'Procedure for applications' and has no subsections at all. The have regard duty the argument describes sits at s 92D(4). The ACCC then repeated the same citation at paragraph 43 of the explanatory statement to its own class exemption. The comparators offered at 1.18 and 1.19 are paragraph 15(7)(a) of the National Emergency Declaration Act 2020 and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020.

The same Act runs its liabilities the other way. Schedule 2 sets no penalty amounts itself; it brings suppliers, distributors and retailers in the petroleum marketing industry into the higher tier within which the Oil Code regulations may prescribe penalties, the Revised Explanatory Memorandum noting at 2.4 that the Oil Code 'currently has no civil penalty provisions for non-compliance and as a result, infringement notices cannot be issued nor civil penalties applied'. Item 7 confines the amendments to 'contraventions that happen, or are alleged to happen, on or after the day this Schedule commences'. Penalties forward only, exemptions back to 1 April, in one Act.

06What the old route looked like

The rest of the chronology is on the public register too. Public consultation began on 24 March 2026 and the closing date for submissions from interested parties was 14 April 2026. The application was withdrawn on 3 August 2026. No draft determination and no final determination is listed, and the register states no reason for the withdrawal. Applying for authorisation, and withdrawing an application, are lawful acts, and nothing on the register says why this one ended.

What matters is that the old route moved, and moved in public. The ACCC's media release of 20 March 2026 quotes Chair Gina Cass-Gottlieb: 'We have urgently assessed and granted this interim authorisation, received late Wednesday, because we recognise the impact of the current situation on consumers, businesses, and farmers.' 18 March 2026 was a Wednesday. The release also states that 'Authorisation has not been sought, or been granted, for fuel suppliers to share information about or reach agreement on price', and that public consultation on a final authorisation would shortly begin.

The ordinary route's full process is published by the ACCC: a final determination on new applications within six months, extendable by a further six months only where a draft determination has been made and the applicant agrees; a draft determination stating whether the ACCC plans to grant or deny, any proposed conditions and its reasons; an invitation for written submissions; and protection that begins when the final determination comes into effect, 'usually 21 days after the date of the final determination, unless an application for review of the determination is made to the Australia Competition Tribunal in that time'. Slow, but every stage of it is legible from outside.

The same objection had been made at introduction. On 13 May 2026, describing the Bill as introduced and before the amendment agreed the following day, Matthew Canavan (Queensland, Liberal National Party) told the Senate that 'during COVID the ACCC provided such interim authorisation orders in 28 different circumstances', citing an ACCC report of April 2021, and asked, at page 14 of the proof Hansard quoted in the Bills Digest, 'the authorisation process can clearly work within a week, within 24 hours, what is exactly the justification for this bill? It seems very flimsy.' Dave Sharma (NSW, Liberal Party) said the same day: 'A framework exists. It has been shown to work well during the COVID crisis and others...the question then is: Why do we need a new piece of legislation?'

07The case for it

Take the defence at its strongest. Retrospectivity here relieves liability rather than creating it: cartel conduct carries criminal exposure, and an authorisation removes jeopardy rather than imposing it. That is the reasoning at Revised EM 1.20, that a determination 'should only have beneficial application', and at 1.17, that backdating 'would allow an authorisation or exemption to apply to conduct that has already occurred (provided that it occurred during the period specified in the declaration)'. Retrospective relief is not the same animal as a retrospective offence.

Parliament also kept real levers. The Treasurer's declaration is a legislative instrument and disallowable. So is any variation of its duration, which Revised EM 1.16 states would be subject to disallowance, sunsetting and periodic review. So is a class exemption, under s 95AC(10), the provision a Senate amendment added on 14 May 2026 and which commenced with the Act on 27 May 2026. Merits review is gone but judicial review is not.

The class exemption in force is not an open licence to sit down together. Section 8(3) requires the ACCC to be notified at least 24 hours before a meeting, or within a shorter period it approves, by email to exemptions@accc.gov.au, with attendees, purpose and matters to be discussed. Section 9 requires that an ACCC-approved competition lawyer attend and that the lawyer has been instructed to immediately advise the meeting attendees if concerned, a condition on the corporation rather than on the lawyer. Section 12 requires prior ACCC written approval for any non-government meeting between competitors. Section 14 requires minutes and tabled documents to go to the ACCC within five business days. Section 7(2) carves out price agreements, including any understanding between competitors on the price of goods or services they compete to supply. A government meeting must be initiated or convened, and attended, by a government body, the note adding that it 'may be initiated by the Fuel Supply Taskforce Coordinator'.

The regulator says the old road stays open. Its media release of 27 May 2026 states that the ACCC 'can only grant exemptions for activities that would likely assist in the response to, or recovery from, the exceptional circumstances which are declared', and that its 'existing powers that allow it to grant exemptions from competition laws where there is likely to be a net public benefit remain unchanged'. Cass-Gottlieb is quoted saying: 'The ACCC will apply clear safeguards, so coordination goes no further than necessary and impacts on competition are minimised.' The words retrospective, retrospectivity, backdated and 1 April do not appear in that release, and it states no timeframes.

The declaration is published. The class exemption is published. The authorisation is not.

That is the point. The declaration is disallowable and published. The class exemption is disallowable, published, and gatekept meeting by meeting. The thing neither of those describes is the individual authorisation under s 92D: granted on a bare relevance test, with no requirement that benefit outweigh detriment, closed to Tribunal review, outside disallowance because it is a determination in writing rather than a legislative instrument, capable of covering conduct already engaged in, and absent from the public register until seven business days after the declaration that produced it has ended. Watch that instrument. Nobody outside the process can, until it is over.

If it’s a rort, we cover it.