Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I'll start by thanking the member for Forde for his contribution and especially for his shout-out to my home state, the great state of South Australia, particularly with respect to energy. In South Australia, we are leading the way in the transition to renewable energy, with 80 per cent of our energy needs being met on any given day by renewables. So South Australia is the state you want to be in.

Today we talk about the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 , which I speak on in support. In this country, we've got a range of legislation that exists to cover what are termed national emergencies. The National Emergency Declaration Act is a case in point. It sets out the conditions for making a national emergency declaration, which include:

(a) an emergency has recently occurred, is occurring or is likely to occur (whether in or outside Australia); and

(b) the emergency has caused, is causing or is likely to cause nationally significant harm in Australia or in an Australian offshore area.

It's also a requirement that either each state and territory government experiencing or likely to experience the harm has requested the national emergency declaration in writing; or that the emergency has affected, is affecting or is likely to affect Commonwealth interests; or the making of the declaration is appropriate, considering the nature of the emergency and the nature and severity of the harm; and the declaration is desirable for emergency management to allow national emergency laws to be utilised. If these conditions are satisfied, then, under that act, the Governor-General may make a declaration that there exists a national emergency. This must be declared for not longer than three months but can be extended, and the legislation includes a requirement that the Senate Standing Committee on Legal and Constitutional Affairs, or an equivalent committee, must review each national emergency declaration on the first anniversary of the day that declaration was made.

What is nationally significant harm? It's broadly but carefully defined. It includes harm that has a significant national impact because of its scale or consequences, and includes 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; or disruption to an essential service.

If a national emergency declaration is issued by the Governor-General, several things can happen, including the mobilisation and deployment of Commonwealth resources to assist states and territories to deal with the matter. The minister may also be granted powers to modify, bypass or suspend certain administrative laws like requiring physical signatures on documents or undertaking routine reporting so that there are no delays to the issuing of emergency assistance. It also allows the federal government to take action in a state or territory, even if no assistance has been requested.

Businesses large and small face significant challenges when there is a national emergency declaration. We last saw this during the COVID-19 pandemic, where businesses were put under significant and protracted hardship. Challenges may also be faced by businesses in circumstances which do not meet the threshold for a declaration of a national emergency, as I've just outlined. It is challenges that fall outside of these thresholds that this bill seeks to address, such as the ongoing and unpredictable effects of the conflict in the Middle East. The conflict began on 28 February 2026, and, on some assessments provided by the US government, was estimated to be over in several weeks. But, three months on, it's still going and still having an impact on global and regional energy security, on global and regional supply chains and, therefore, on our domestic businesses.

The Albanese Labor government, particularly the Prime Minister, the Minister for Foreign Affairs and the Minister for Climate Change and Energy, have devoted significant efforts to drawing on established regional relationships—which the government had the foresight to build when it came to power in 2022—in order to secure the fuel and fertiliser supplies Australia needs for both critical industries and general domestic consumption. But the conflict continues, meaning the government has determined that also looking for domestic opportunities to meet the challenges being faced by businesses is essential. This is not only seeking to meet current global circumstances but also planning for the future. We know with almost 100 per cent certainty that conflict, disruption and global instability is only going to increase, meaning domestic powers need to be in place now so that businesses can more easily meet the challenge this instability will inevitably bring to their operations in Australia.

Schedule 1 to the bill includes a power for the minister to make what is called an exceptional circumstance declaration. The term 'exceptional circumstance' is taken to have its natural and ordinary meaning and has not been defined with any more specifics, in order to not limit the circumstances in which such a declaration can be made. This level of flexibility is appropriate because it reflects the unpredictability and range of exceptional circumstances that may materialise. An exceptional circumstance may not include circumstances that meet the threshold for a national emergency declaration, although a national emergency would always be an exceptional circumstance. These things work together. The effect of the minister issuing an exceptional circumstance declaration is that it triggers the operation of exceptional circumstances class exemptions and authorisation provisions, which would otherwise not operate.

So what does this mean? Part IV of the Competition and Consumer Act 2010 prohibits a wide range of anticompetitive conduct, which, at a very high level, operates to distort, restrict or prevent healthy competition in the market. Anticompetitive behaviour compromises the consumer by limiting choice and also prevents smaller market operators from competing for business fairly. It can include things like collusion on prices or collusion on the supply of goods or bid processes. It can include a larger company using its market dominance to eliminate smaller competitors, or it can include businesses banding together to refuse to deal with particular classes of individuals or consumers and suppliers. It can also include resale price maintenance, which is where retailers have minimum prices dictated to them. Conduct of this nature distorts the market, which ultimately disenfranchises the consumer, which is why it is prohibited.

The bill proposes that the ACCC be able to authorise an exempt conduct, which may ordinarily breach competition laws, where it is in the public interest, in that it provides assistance in responding to exceptional circumstances. Businesses coordinating with each other to take certain relevant actions in response to an exceptional circumstance is the most obvious example which would likely qualify for a class exemption, and this will operate in the form of a new section 95AC that will allow the ACCC to create class exemptions for particular kinds of conduct to ensure that the ACCC has the power to quickly, flexibly and broadly grant exemptions to specified provisions of competition laws in exceptional circumstances. It also has the effect of supporting businesses to work together to respond efficiently and effectively to any exceptional circumstances event. Businesses will need to consider whether their conduct falls within a class exemption once that class exemption is in force, in the usual self-assessment way.

A class exemption of this nature will also enable businesses to coordinate to manage the circumstances themselves, so long as they are reasonably restricted to conduct that would assist, or would be likely to assist, in the response or recovery from the harm posed by the exceptional circumstances. So this is not a green light for businesses to participate in anticompetitive conduct outside of the class exemption framework applicable to the exceptional circumstance declaration. Businesses will have the ability to respond rapidly, which they should have, but will still need to take care to ensure the rapid response does not result in scope creep beyond the rapid response directly and genuinely needed.

Importantly, the ACCC may only determine a class exemption if an exceptional circumstances declaration or national emergency declaration within the meaning of the National Emergency Declaration Act is in force. Further, the ACCC must not determine a class exemption unless it's satisfied in all the circumstances that the kind of conduct specified in the exemption class would actually assist or be likely to assist in the response to or recovery from the matter at hand. In conducting this analysis, the ACCC must have regard to the likely benefit to the public which would result from the assistance or likely assistance in response to the issue. The ACCC must also have regard to any other public benefit that would result, or be likely to result, from the conduct, and must also consider the detriment to the public that would result, or be likely to result, from the conduct.

The factors that must be considered in determining class exemptions seek to strike a balance between ensuring that class exemptions are determined in a structured decision-making process that has proper regard to public benefit and public detriment and ensuring that the ACCC can respond rapidly to allow businesses to address whatever the exceptional circumstance at hand is. Any class determination must precisely specify the exceptional circumstances or emergency to which it relates.

Although the ACCC already has class exemption powers to enable businesses to engage in conduct otherwise prohibited by the Competition and Consumer Act, the cost and the time involved in the existing administrative processes for establishing these exemptions can delay efforts by businesses to respond rapidly to exceptional circumstances, which then has the potential to cause further public detriment. The ability to respond quickly and early may even prevent or substantially mitigate the extent of significant harm to the economy, which is exactly what this bill seeks to prevent.

Given what is happening in the world at the moment in our region and beyond and given general global unpredictability and instability, the intention of the bill—that the ACCC will be able to work with industry to complement the actions of the Commonwealth, state and territory governments in working to minimise public detriment—is entirely appropriate. The first cab off the rank will be the ACCC, industry, the Commonwealth, the states and the territories working together to minimise future disruptions to fuel supply. We see constant updates regarding the prospects of finalising negotiations to reopen the Strait of Hormuz, but these updates constantly change, and, even if a negotiation were concluded successfully today, returning things close to where they were prior to 28 February 2026 would likely take months to be achieved, so there's further disruption ahead of us.

This bill, which promotes early coordination so that businesses avoid risks to them and to the Australian people, who are the most important consumers in the marketplace, is entirely appropriate in these circumstances and completely on point. I commend the bill to the House.

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