Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) Share this | Link to this | Hansard source

I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill supports the Government's response to the ongoing conflict in the Middle East which is impacting fuel prices and affecting Australian businesses and consumers.

Schedule 1 to the Bill creates new powers for the Treasurer and the Australian Competition and Consumer Commission to permit coordinated action during a crisis. Under this Bill, the Minister can make an extraordinary circumstances declaration in circumstances that pose a risk to the Australian economy, businesses and consumers, but which may fall short of a declared National Emergency under the National Emergency Declaration Act. Once extraordinary circumstances have been declared, the ACCC will be able to exercise new, streamlined powers to enable coordinated responses to the crisis by businesses to complement the work of government in protecting the Australian public and economy from the impacts of the crisis.

These new powers are not just reactive; they are pre-emptive. They allow the Minister to make a declaration enlivening the ACCC's powers when there is a foreseeable harm, and allows decisive, cooperative action with the business community to prevent or mitigate that harm early. In the current situation, this could include businesses working together to minimise fuel usage to keep supply chain costs low for them and their customers; Instead of reacting to fuel shortages, we can allow businesses to find innovative and collaborative solutions to prevent shortages.

The ACCC already can grant authorisations, and has done during the current situation and past crises. But this process is burdensome and slow, making it too inflexible to respond to the changing situations Australia may face during exceptional global or domestic circumstances. This power will make it easier and faster for the ACCC and businesses to assist these vital efforts to respond to these circumstances, and future exceptional challenges the Australian economy faces.

Once this Bill passes, the Treasurer intends to declare an exceptional circumstances event to ensure Australia stays on top of the challenges arising from the current conflict in the Middle East. While Australia's fuel supply continues to operate effectively, this declaration will support the government's approach to. Keep Australia Moving under the National Fuel Security Plan. This will allow the ACCC to work with industry to complement the actions of the Commonwealth and State and Territory Governments in working to minimise any. future disruptions to fuel supply. By coordinating early, businesses can avoid risks to them· and their customers.]

Schedule 2 to the Bill increases the maximum penalties that can be imposed for breaches of the Oil Code of Conduct. Under this Bill, the regulations will be able to impose penalties on corporations in the oil industry up to the greater of $10 million, 3 times the value they derive from breaching the Code, or 10% of their last year of turnover. For persons other than corporations breaching the Code, penalties of up to $500,000 will be available for contraventions. The ACCC will also be able to issue penalty notices of 600 penalty units to corporations for suspected breaches and 12 penalty units for other persons. These changes mirror those introduced by the government in 2024 into the Competition and Consumer Act for breaches of the Food and Grocery Code. They also complement recent action taken by the government to increase other penalties under the CCA last week, and other action taken to address the supply and price of fuel in Australia. The Bill will further discourage fuel companies seeking to flaunt their obligations under the Oil Code of Conduct, including those taking advantage of the conflict in the Middle East.

Full details of the measures are contained in the Explanatory Memorandum.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

These are extraordinary times, with the fuel crisis roiling the world, but they're no more extraordinary than the times that we did face during COVID. We heard, in the previous contribution, the minister say, 'Oh, we shouldn't be slaves to what has gone before.' It was quite a remarkable statement, I thought, because surely, surely as legislators we should use experience and evidence to guide us with what we do today and we actually should look at what happened before in similar circumstances and at whether that is instructive or provides any lessons for how we should act today.

I want to start there in this debate on the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026. It's about what happened during COVID with regard to competition laws and the need to take urgent action in difficult—in the term the government said here, exceptional—circumstances. There were definitely exceptional circumstances during the COVID lockdowns and the like.

The key point to make here is that we have the ability in current competition laws to provide exemptions to businesses that have to coordinate and cooperate to respond to exceptional circumstances. Obviously, during the COVID experience, at times, food suppliers—the financial industry, the aviation industry—had to work together to respond to extraordinary circumstances and in doing so were potentially, because they were talking together and cooperating, going to fall foul of competition laws. They could apply, under existing laws, to the ACCC to have something called an authorisation. They could authorise the notionally, potentially anticompetitive conduct because it was in the public benefit. The point the government made earlier is that this process is too unwieldy and it will take too long in responding to such a crisis as we're seeing today.

Let's look back at this experience that the minister wants to close his eyes to. Under that process, companies can ask for an interim authorisation that can be provided quickly and can respond to exceptional circumstances. In fact, during COVID the ACCC provided such interim authorisation orders in 28 different circumstances. There's a very useful report that I encourage all senators who want to consider this bill to look at. It's only a short report, but it's a report that the ACCC put out after this process, in April 2021, listing COVID-19 related authorisations. There's a very clear chart in this report, on page 3, that lists the 28 different authorisations, and it shows how quickly they were able to make a decision on the authorisation.

So let's keep in mind here that the government's point is that this interim authorisation process is too unwieldy, that it takes too long, that we have to do too much consultation. Well, when we go to the ACCC's reports to see what their lived experience was with the authorisation process, they were in fact able to turn around authorisations often within less than 24 hours. Let's just go through it, with a real-world example. The Australian Banking Association made an application: zero business days, less than 24 hours. Suncorp applied to be exempt from competition laws: again, a less-than-24-hours response. And there were many other companies, like Coles, the Motor Trades Association, the NBN, AIP—I'm not exactly sure what that stands for, nor SSA—and AEC, which I think is the electricity companies, as well as various state government. They all received authorisation within less than 24 hours, and there were a whole lot of others that were within two, three, four or five days.

So why does the government need to rush this right now? They seem to be hoodwinking us here with this quite transparently incorrect advice they've just provided to the Senate, that somehow the existing processes are too unwieldy and take too long. Well, no: the existing laws were used during COVID—which, as I said, was no more exceptional than what we face today—to provide exemption from competition laws within hours, not days. So I'd hope we're not about to go to level 3 fuel restrictions in the next 24 hours. That's one of the reasons the government has used to justify these laws—that we might need to restrict access to fuel if things get worse. Well, I don't think it's going to happen within 24 hours. I don't think it's going to happen within a couple of days. It's probably not going to happen within a week or so.

Given 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. And I want to make very clear here, to also combat the absurd resort to partisanship that the minister engaged in straightaway—'It's all you guys; you're just terrible'—I'm not going to repeat that to the government. I'm not necessarily accusing the government of that. I just want a proper investigation of what goes through this chamber. We are happy to work with the government if there is a legitimate and clear need for laws of this kind. Our attitude on this is exemplified by what we did in the last sitting period, when we did support immediate and urgent changes to the Export Finance Australia legislation so the government could help underwrite fuel coming into the country. We absolutely supported that. We had a very detailed briefing with the energy minister and saw the need and said, 'Yep, we're going to support you on that.' We moved some amendments that we would have liked the government to support, but we ultimately let it go through.

So I'm more than happy to do that. I just think we need to investigate this, given the clear questions I've just raised and some more that I'll come to. We should see this go to an inquiry of some kind. Surely, given the mammoth changes being made, which I'll come to in more detail, this should go to an inquiry. And I think, given the changes, that it should be in inquiry that goes for some weeks so we can get information maybe from some of these businesses that had experience with the COVID situation and get evidence from the companies that would potentially be exempted from competition laws and of course evidence from the ACCC, who we're told support this, but we're not allowed to talk them, apparently before this goes through. Why can't that happen?

As I said, we're very cooperative here. I'd like an inquiry to last for weeks, but I've suggested to the government, 'Well, let's do a snap one.' If we do one now we can at least have the ACCC in here at a moment's notice; they're just down the road. We could get them in here and have a chat with them for an hour or so, and we can consider it tomorrow in the cold light of day, rather than what I expect the government to do here now, which is to use their usual guillotine process to shut the Senate down and not ask questions on behalf of the Australian people—and that's how mistakes happen.

I want to say, notwithstanding the points I made earlier, that there are some broader issues raised by this legislation that the government seems quite reticent to highlight. I mentioned one earlier. If this bill is about simply allowing the government to respond to future circumstances that might arise in the next few weeks—these potential future restrictions on people's use of fuel that the government is flagging and the rationing that the government is obviously opening up the can on here with this legislation—and 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? That conduct has happened, so we can't change that. We don't have a DeLorean; we can't go back and change it. It's happened.

Maybe there's a need to exempt that. If we're going to exempt past conduct, that is a very, very serious thing and should take due consideration through an inquiry. Why do we need to rush that this week? We could put that bit off the table. You could split that bit out of the bill and deal with it in the future. But the stuff in the past definitely needs consideration, particularly given there have been a number of legitimate complaints about some of the potentially anticompetitive conduct that occurred in the early stage of this crisis.

I've had a lot of complaints from different fuel distributors, large fuel users, farmers, manufacturers and the like who have said that they don't understand why, when there was enough fuel in this country and the government told us there was enough fuel in this country, they couldn't access it. There seemed to be some hoarding. There seemed to be some level of conduct that might have been anticompetitive. We've heard stories of the major fuel companies going around to businesses that had been supplied by the independent sector, trying to give them sweetheart deals to take their market share, to take their business from the independent fuel suppliers. These things deserve investigation. In fact, not only do they deserve investigation, but the Treasurer himself, this government itself, had referred such conduct and allegations to the ACCC. I don't think we've seen a conclusion from those investigations yet.

Why would we pass legislation here now that would potentially exempt, restrict and stop those investigations from continuing, given the legitimate issues that were raised and the very high price that Australian fuel users had to pay in the early stage of the crisis? Some missed out, some couldn't plant and some couldn't go about their business, because of those fuel restrictions. They deserve answers, not a rubber stamp from their own Senate potentially exempting any kind of anticompetitive conduct through that period. That doesn't add up at all.

The other thing that doesn't add up in this bill is that, 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. Our competition laws are there for a reason. They're there to protect small business. They're there to protect competition in our country, which is so important to deliver fair returns to farmers and small businesses and to deliver good products and good service to consumers. It's a very serious thing to exempt businesses from competition laws, and that's why we've got a very detailed authorisation process. It's flexible, as it was during COVID. But to get more than an interim order, to get a full authorisation, yes, you do have to go through an extensive process, as you should. But this bill undermines that entire process and undermines it across the whole economy—not just to deal with a particular circumstance.

The question that has to be raised is: why isn't there some kind of sunset clause or something on this? We on this side of the chamber will consider, through this debate, why the Senate wouldn't say, 'We'll give you this for the next couple of months while we go away and think about it in more detail.' Again, I still don't understand why the retrospective stuff has to be done in the next few months. But, if there is this urgent need, I am more than willing to be cooperative here. I haven't made a single partisan point here. I'm raising particular and detailed issues with this bill, which is surely the role of this place. If we were doing our job, we'd sit down and consider this.

I'm happy to sit here tonight. I'm happy to meet the ACCC at any time tonight. I was hoping to get an earlier night tonight. It was a late night last night to lock up the budget, but I'm happy to do my job and stick around as long as I can to protect competition and our economy in this place. I think we need to look at the issue of the disallowability of some of the aspects of this bill. We hardly received a copy of this bill this morning. We had a briefing a few days ago that I didn't attend. I'm not the shadow minister, but I'm repping them here in this place. The information I've received is that the Treasurer's declaration of exceptional circumstances will be disallowable. Okay, good. Parliament can review that. But, once he or she makes that decision of exceptional circumstances, the ACCC then has the power to exempt certain conduct under a broad exemption provided by the Treasurer.

My understanding is that those ACCC determinations under this bill are not disallowable. They will not be reviewable by this chamber or the other place. To me, that seems a glaring omission that could be fixed with a relatively easy amendment. I move:

Omit all words after "That", substitute "the bill be referred to the Economics Legislation Committee for inquiry and report by 22 June 2026, with particular reference to:

(a) whether the existing Australian Competition and Consumer Commission (ACCC) powers are genuinely inadequate;

(b) whether the Treasurer's declaration power is too broad;

(c) whether ACCC exemptions should be disallowable;

(d) whether transparency requirements are strong enough;

(e) whether the retrospective start date is justified;

(f) whether the powers are properly limited in time and scope; and

(g) whether there should be stronger sunset and review mechanisms".

I'm doing this is all on the fly, of course, given the way the government has approached this. We have now distributed an amendment that seeks to have this proper inquiry. This inquiry is listed to come back on the first sitting day of the next sitting period. I realise that's more than a month away, but, as I said earlier, we are more than happy to negotiate and be cooperative on this.

Given the wide scope of this bill that I've outlined, I think that a couple of proper hearings with businesses, with those companies that would be exempted, with departments and with the ACCC would be useful. But, at the very least, if the government and the Greens down there can't agree to a proper inquiry, why don't we just have a snap one? We could do that tonight. We could at least talk to the department and the ACCC and do our job. Let's just do our job. These are exceptional circumstances, but that means we should work even harder for the Australian people.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 empowers the ACCC to enable businesses to work together in exceptional circumstances—in a crisis, in other words—where businesses working together helps respond to the exceptional circumstances and serves the public interest.

The bill enables the minister to make an exceptional circumstances declaration with a disallowable instrument, as Senator Canavan just said. That instrument will also be sunset within six months under the provisions of this legislation. Once the minister has made such a declaration, the ACCC can grant fast-tracked class exemptions and authorisations to enable business conduct that would assist in responding to the exceptional circumstances that are detailed in the minister's declaration but might ordinarily breach competition laws. While the ACCC can grant class exemptions and authorisations under existing law, the ACCC has stated that the usual process is too stringent and lengthy to adequately respond to a crisis. That's the government's argument for introducing this legislation and seeking the passage of this legislation through the Senate this week.

The government has introduced this legislation in the context of a supply crisis caused by the United States and Israel engaging in an unprovoked, illegal war on Iran. Let's be very clear about what is driving the context for this legislation. We have a deranged, unstable president of the United States—a fascist, a war criminal and a fantasist—who, in an unprovoked fashion, along with his fellow war criminal, Mr Netanyahu from Israel—launched an attack on Iran. This is a war crime, and it has led, entirely predictably, to retaliation that has created a chokepoint in the Strait of Hormuz that is now having ramifications in economies around the world, including here in Australia.

When Trump and Netanyahu started their unprovoked, illegal war on Iran, the first government in the world to come out and say they thought it was a great idea was the Australian Labor government. Our prime minister, that lackey, that lickspittle to the United States, who came out and said he thought the war was a great—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator McKim, resume your seat. Point of order, Minister?

Jenny McAllister (NSW, Australian Labor Party, Minister for the National Disability Insurance Scheme) Share this | Link to this | Hansard source

My point of order is in reflecting on and imputations made about a person in the other place.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Yes, I'll take that point of order. Senator McKim, I would ask you to withdraw that.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I withdraw that.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The fact remains that, no matter how uncomfortable it is for the so-called left of the Labor Party, our prime minister was the first global leader to come out and say that he supported an illegal, unprovoked attack on Iran that, not long after he said it, resulted in over 150 schoolchildren dying under a barrage of missiles launched by the United States and Israel in an unprovoked, illegal attack on the people of Iran.

I say to the Prime Minister: how is your support for the war going now? We've got thousands of people dead and hundreds of thousands of people displaced from their homes or injured. We've got a black swan event that is ruining economies around the world, including here in Australia. We're seeing interest rates climb. We're seeing fuel shortages add to supply pressures through our economy, driving up the price of things like food and fertiliser, and we ain't seen nothing yet. How is your war going now, Mr Albanese? How's the war that you were the first global leader to support going now?

I will tell you how it is going. It's not going well. It's definitely not going well for the people in Iran, who are being brutalised and slaughtered in their droves. It's not going well for the people in southern Lebanon, who are being illegally attacked by Israel and having their lands illegally occupied and their homes destroyed in war crimes by Israel supported by the United States and supported by the Labor Party here in Australia. How do you think it's all going now? I'll tell you how it's going. It's not going well, and the fact that it's not going well was entirely predictable when the Prime Minister became the first global leader out to make it very clear to President Trump and Mr Netanyahu that he thought their illegal war was a great idea.

I'll tell you what we need in this place. We need the war parties to wake up to themselves. We need the Labor Party, the Liberals and One Nation to wake up to themselves and stop supporting this illegal war. Stop supporting the slaughter of thousands of innocent people just because they happen to live in Iran or they happen to live in Lebanon. That's what this country needs and that's what the world needs, but we're not going to get it because we are effectively a vassal state to the United States. We are locked in by the military industrial complex, by the security industrial complex and by the Five Eyes arrangements. We are locked in to backing in the United States and backing in Israel no matter their war crimes, no matter the geopolitical stupidity of their actions and no matter the entirely predictable ramifications on the Australian economy of starting a war with Iran.

The new powers that this bill seeks to create will allow the ACCC to ensure businesses can work together to distribute products that are affected by the entirely predictable supply crisis caused by the illegal war in Iran that is perpetrated by the United States and Israel and supported by the Australian Labor Party here in Australia. Those products could include fuel, they could include fertiliser and they could include food. Those powers will allow the ACCC to ensure that those products, and potentially others, are distributed in a timely way to the places that most need them.

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, we do think the bill needs to have stronger safeguards in place to ensure that any exemptions from competition law that the ACCC grants to businesses are subject to parliamentary scrutiny. That's why we are preparing and will circulate an amendment that requires any class exemption that the ACCC makes to be made via a disallowable instrument. This will allow the parliament to ensure that the ACCC has granted exemptions that are strictly in the public interest and are sufficiently narrowly targeted to support businesses to resolve the particular crisis or the particular exceptional circumstances but are not so broad as to constitute an unnecessary relaxation of our competition laws. We will not allow a crisis to be used as an excuse to give free rein to big corporations to avoid their competition responsibilities.

I want to briefly refer to those provisions in the bill that allow civil penalties to be attached to the Oil Code of Conduct. The Oil Code of Conduct is a mandatory industry code that regulates the conduct of suppliers, distributors and retailers involved in the sale, supply or purchase of petrol. It is noteworthy and regrettable that, currently, the code does not contain penalties. We are supportive of penalties being added to the Oil Code of Conduct to ensure a better chance of compliance and a better chance of making sure that businesses involved in the fuel supply chain do the right thing.

I want to go back to the context before I conclude my remarks. The context of this bill is as follows. The US and Israel started an unprovoked and illegal war on Iran. That led to entirely predictable consequences—and not just the horrific consequences for the people of Iran and people in the region, who are being slaughtered in their droves and injured and displaced from their homes in countless millions. It has led to entirely predictable circumstances for the Australian economy.

To those who say Australia is not an active participant in the US and Israel's illegal war on Iran, I say, and the Greens say, think again. We have sent a spy plane. We have sent missiles. We have sent personnel into the war theatre. Labor's mealy-mouthed weasel words—that these are only being used in a defensive capacity—are deliberately designed to mislead Australians away from the truth.

The truth is that we are contributing to this war effort. Every single asset and any personnel we send into that war theatre, even if they are technically being used in a defensive capacity, are freeing up assets for the aggressors in this war, the United States and Israel, that can then be used in an offensive capacity. The intelligence being gathered by the spy plane that we have sent over there is undoubtedly being used to support offensive action against Iran. Australia is a direct contributor to the war on Iran. We are supporting the US and Israel in their offensive efforts against Iran. We are morally culpable for the slaughter of innocent people, the injuries to innocent people and the mass displacement of innocent people from their homes. We are morally culpable because we are directly contributing to those outcomes.

This war was supported from day one by the Prime Minister and the Australian Labor Party. We are direct contributors and supporters of the US and Israel in their illegal war, and the Australian people are now paying an economic price for this war—for Labor's support for this war. It is not as big a price as the people being slaughtered and displaced in Iran and Lebanon are paying. It is nevertheless an entirely predictable consequence of this war. So I say to the Labor Party you should rein in your warmongering instincts, you should think again before you jump when the US president tells you to jump and you should actually be leading Australia down a path where we are a truly independent middle power in the world that advocates peace and not war.

Jane Hume (Victoria, Liberal Party, Shadow Minister for Employment and Industrial Relations) Share this | Link to this | Hansard source

I rise to speak on the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026 that has been thrust upon this chamber in such unusual circumstances. The coalition is not in a place to oppose sensible measures—it never is—that help manage the fuel crisis and protect households and small businesses, but this bill gives the government and the ACCC significant new powers. They're not powers that that consumer watchdog, the ACCC, required during a global pandemic. They are brand-new powers. They never even asked for these powers during the pandemic. So you can understand why there is a natural suspicion, a desire for scrutiny and a reticence to just rush this legislation through.

This sneaky and tricky Labor government has put these laws in front of us with absolutely no time to consider them and with no means of ongoing parliamentary oversight. That is unusual. But it is not just unusual; it is also dangerous. Giving the government powers that are immune from scrutiny—with not even the opportunity for a Senate disallowance—and that have retrospective application impacts matters as serious as suspensions of competition law, which keeps us safe. This should not be done lightly. An inquiry by the Senate Economics Legislation Committee should be a bare minimum in these circumstances. But this is a government that clearly hates transparency. It doesn't even want to do that—a basic inquiry.

If there is urgency for these laws, why did you not consult on them earlier? Why spring them upon the parliament at the last minute? This is the question that we need to ask. Is there some other part to our fuel crisis that Labor isn't being honest about? Is there something that they know that they are not telling the Australian public—indeed, not even telling the opposition? The Liberal Party will always support sensible deregulation. Do not for a second doubt that. But sensible deregulation or proper measures that allow our markets to operate more efficiently is what we are dedicated to, and we don't understand whether this is exactly that. These very significant sweeping changes with massive implications for consumers are not even going to be explained to the Australian people before they are inflicted upon them.

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. Why is the instrument of the ACCC exempt from disallowance when disallowance is the most important safeguard of the parliament? We want to have these questions answered.

What the bill does is important. It creates a new framework for what are known as exceptional circumstances. The Treasurer will be able to declare that exceptional circumstances exist, and then that decision is disallowable. However, once that decision is made then the ACCC can very rapidly exempt conduct that in any other circumstance would be a breach of the competition law, and those decisions of the ACCC will be exempt from disallowance. This gives enormous powers to a regulator that go beyond the reach of the sovereignty of the parliament. This is intended to allow businesses to coordinate during major disruptions, something that is very good, and the current fuel crisis is an example of that, an obvious one. But the framework is broader than just fuel, and no-one has explained why. It could also apply to other crises—it could apply to a pandemic, for instance, or a major economic disruption. But if the powers weren't needed in the pandemic, why are they needed now?

In a genuine crisis, there is always some coordination that is needed between business and government. We can understand that, and we can understand that businesses might need to coordinate between themselves, too. In normal circumstances we would call that cartel behaviour; in a crisis, we might need it. I can understand that. During a fuel shortage, for instance, there could be changes to supply chains, disruptions or a national emergency. There might be circumstances where businesses need to work together quickly. We've seen those circumstances before and we've successfully navigated them before. The priority today must be keeping fuel and food and essential goods moving. We understand that. Households and small businesses shouldn't have to suffer because the law is too slow to respond—but is it too slow to respond? That's the question. This is the reason the coalition is prepared to work constructively on the bill with the government, but only if the government is willing to allow basic and commonsense courtesy of inquiry, because, let's face it, scrutiny of legislation is the role of this chamber, and it is being circumvented. It is being circumvented by a government that hates scrutiny, that hates transparency and, more importantly, that hates accountability.

These are enormous powers that we are giving the Treasurer and, indeed, a regulator. Competition law exists for a reason. It is there to protect consumers, it is there to protect small businesses, it stops large players from coordinating in a way that damages competition. When you have competition in a market, it keeps prices low, and then consumers benefit. So you can understand why any exemption from competition law needs to be treated very seriously indeed. We understand temporary coordination in a crisis may be necessary, but anticompetitive conduct must never be allowed to become normal, because if anticompetitive conduct becomes normal and competition is driven down, it is the consumers that pay the price through higher prices. That's why it is important to get the balance right, and that's the job of this parliament, that's the job of this chamber and that's what is being circumvented by rushing these laws through.

The existing system that we have now is workable. It's worked before. It's worked in many different environments, be they pandemics or fuel crises. The government and the ACCC argued that the current authorisation framework is too slow and too restrictive. That's something that I am open-minded to if it is in the circumstances of a particular crisis. The government and the ACCC are saying that disallowance and public consultation requirements can get in the way of a rapid crisis response. Now, potentially in some circumstances, they may be right, but that is yet to be explained. It is yet to be explained to those from whom you are seeking support for this legislation. It's yet to be explained to the public.

I reiterate that the current framework that we have used, particularly during COVID, has worked perfectly well. In fact, during COVID, the coalition government worked with the ACCC to get an exemption from competition laws many times, and some of those exemptions were enabled with less-than-24-hour turnaround. That sounds to me like a system that works pretty well. If that's the case, why are these new laws necessary? Moreover, it actually seems to be working pretty well in the current crisis as well, so would it then be more appropriate to take the time to test whether these new and very expansive powers, this new framework, is actually necessary? If it has worked before the way it is now and it's working currently, why do we need these powers? We should also test whether this bill is the narrowest possible fix to the problem that we face today rather than expanding powers out to last into the future for problems that we can't even foresee.

One of the concerns the coalition has is that potentially the Treasurer's declaration power is way too broad. The Treasurer's power to declare exceptional circumstances is essentially unlimited. It's not confined to this fuel crisis; it could be anything else. Once that declaration is made, it then opens the door for the ACCC, a regulator. The ACCC can then exempt big businesses from competition laws, which the government will then say would not be disallowable by this parliament. So the ACCC is giving very big, already powerful businesses the right not to be competitive, the right to cartel behaviour, and we can't exempt that from this parliament. Once it happens, it's done. That's why you can see we are very cautious about any attempts to take away that parliamentary scrutiny. The Senate inquiry, should there be one—if there were one—would test whether that threshold is tight enough. It would also test whether the safeguards are strong enough. Unfortunately, we're not going to have that inquiry, because this is a government that wants to deny scrutiny of its own legislation.

The Treasurer's declaration—and this is good news—can be disallowed by parliament, but that's not the concern here. The concern is whether the individual ACCC exemptions made after that can be disallowed. This is the significant issue that we face. It means that parliament can reject the broad declaration of a crisis but it can't directly disallow the specific exemptions that may affect competition in particular markets. That weakens parliamentary oversight. Exactly what it is that we are here to do is being weakened by this government because it is rushing through legislation that has not had the proper scrutiny.

The ACCC exemptions need to be made public within only seven days. That is also a concern. We should have higher expectations of transparency than that. Understandably, in some circumstances, a short delay may be acceptable. It may be understandable. But these exemptions can potentially authorise conduct that would otherwise breach competition law, and the public, the parliament and affected businesses—those businesses that potentially will be dramatically affected by those competition laws or the setting aside of competition laws—should know what is being authorised as soon as possible. You can imagine, if you were a small business that was going to be affected by these laws and you didn't find out about them for seven days, how potentially damaging that could be. So the Senate should be able to test whether faster publication, notification or reporting is in fact possible. Transparency should be built into the framework from the very start.

Also, the bill is backdated, weirdly, to 1 April, and I cannot understand that. Ther's no reason for that specified date. The Treasurer's office has simply said that they want flexibility. But retrospectivity is very unusual, and it's simply not good enough. Retrospective lawmaking should be very rare, and retrospective competition law exemptions should require an explicit and clear justification. So the Senate should be able to test why that 1 April date has been chosen.

The bill may be well intentioned. I don't doubt that. But because of these significant new powers to the Treasurer and to the ACCC, the Senate should be able to test whether the existing ACCC powers are genuinely adequate, whether the Treasurer's declaration power is too broad, whether the ACCC's exemptions should be disallowable, whether transparency requirements are strong enough, whether the retrospective date is justified, whether the powers are properly time limited and whether they're in scope, and whether there should be stronger sunset and review mechanisms. These are not unreasonable requests in any circumstance but particularly when legislation is being rushed through.

Can we be very clear that we support practical steps that protect households, small businesses and essential supply chains and that we will work constructively on measures that help manage this fuel crisis, as we have from the very start. But the fact that the government wants to limit parliamentary scrutiny and doesn't even want to give us the courtesy of having the scrutiny of its bills that limit scrutiny—and now the Greens, those champions of transparency and scrutiny, are going along with this—well, I think, 'So much for a transparent government.'

Susan McDonald (Queensland, National Party, Shadow Minister for Resources and Northern Australia) Share this | Link to this | Hansard source

I have listened with great interest to the arguments provided by the government with regard to these legislative changes, the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026, and with particular interest to the words of Senator Hume, who I think has made a terrific case for why these changes should have received proper scrutiny.

However, I want to take a step back. We live in a time when, around the world, liberal democracies are under threat, and the role of this Senate is the ultimate final frontier for protecting Australia's democracy. It is in this place that every one of the 76 of us who form the Australian Senate have a responsibility to our states, to the organisations that send us here—our parties—and, most importantly, to the parliament and to democracy. I have been increasingly concerned by the actions of this government since they were elected only four short years ago—the number of pieces of legislation that are guillotined with no debate and with no referral or reference to committees for further examination, the trampling of incredibly important institutions that support our democracy, and the effects on industries that employ so many Australians who pay tax and that allow us to be the prosperous First World country that we have enjoyed for generations.

Today my blood runs cold, because not only is this the removal of a right of this important chamber to properly scrutinise legislation but it is legislation that removes important competition elements and powers that are important to our economy and important to regional parts of Australia, particularly to small businesses, whether they be food businesses, fuel businesses or other businesses. The removal of those rights by this government is something all Australians should be very concerned about. I would go so far as to say that, when I see the Greens political party stand with the government to remove that democratic right of review, I ask each of them to look in their hearts and ask what deal has been done that they threw away and trampled on this important democratic distinction.

I turn now to the specific legislation. The minister lectured us about the urgency of this legislation and how the coalition was opposing it just to be difficult—a painfully laboured arguments that bears absolutely no credence when you look at the history of these powers and how the exemptions have been allowed over many years. In fact, I was looking at the ACCC's own report which publishes the times when the interim authorisations have been utilised. This report goes back to 2014—more than 10 years of authorisations decided. It also provides a very simple graphical representation of the number of business days required for decisions, particularly during the COVID period: one day, one day, three days, one day—I could go through this entire list. Do we really think one day to make an exemption, an interim authorisation for an important competition decision, is too long, particularly when this government says that it is so urgent that it's backdating it to 1 April? To me, that smacks of a cover-up of decisions that were improperly made, leading to the government now seeking to introduce legislation to fix their inadequacies.

There has been absolutely no demonstration from the government to describe the urgency of this legislation and these amendments. Is there something urgent the government is not telling us about? Is there some looming threat today that the government is aware of but has not disclosed to the Australian people? That's a shocking thought, isn't it—something so urgent that a bill that collapses competition powers and allows non-disallowable decisions by the ACCC should be passed into law, without the government disclosing what that is. That would be a shocking position for Australia to find itself in.

The powers must have a sunset date. There must be transparency around when they are used, how they are used and for what reason they are used. I will give you an example as to why this is important. There has been a lack of inquiry and review. The coalition sought to hear from businesses and regions that were affected when these powers were used over the last 13 years. Let me tell you about some of them. Let me tell you about what happens in regional Australia when competition laws must be relaxed. When small businesses are unable to employ a lobbyist or somebody to speak for them with the ACCC, their rights are trampled. Let me give you the most recent example: the flooding in Cairns. Every single road and access point to Cairns was blocked, and the city began quite quickly to run out of food, medicine and fuel—all the obvious things. The ACCC's exemption and the government's decision to fly supplies into Cairns were obviously necessary and important, but the ACCC and the government failed to engage with small businesses, so the duopoly of Coles and Woolworths benefited. The Australian taxpayer provided food for those businesses to sell to the people of North Queensland. But what happened to the other businesses—the fruit and veg businesses, the fish and chip operators, the butchers, the corner store—the ones we rely on day in, day out to provide services and choice, and competition to the duopolies? What happened to those? There was no avenue given to them to have a business source—food. I was flooded with phone calls—what does this mean for me, for my business, for my employees, for the service I provide to the people in this community when this is over?

We should probably not expect this to be of any concern at all to Labor given that, under their watch, they put a butcher shop out of business in Cairns that supplied people who were hearing impaired, people who were intellectually disabled, physically disabled, and people from Indigenous communities because they decided it was no longer an appropriate business; instead, they would encourage all those people to go and shop at a duopoly business. This is the result of the lack of attention to competition regulation and legislation, so I ask the members of the Senate: take more care. I particularly say that to the members of the Greens party and to those other Independents who sat with government and agreed that there should be no scrutiny, no transparency and no review of these laws.

I am shocked. It takes absolutely no effort and time and cost to those people to allow for proper review that would have allowed people who would be affected by these decisions to have a voice, and, importantly, for the role of democracy to be upheld in this place. Because, like the story of the thousand sticks that broke the camel's back, this is just one law. It seems small and insignificant today but it is just one more removal of transparency and democratic decision-making that undermines our democracy. This is where bad government goes, to remove transparency and hide behind urgency without demonstrating why. I have been able to show you examples in the last 14 years of the existing powers being used to deal with crises powers overseen by the parliament, powers that are reviewable by the parliament, yet, under this rushed legislation, any argument to demonstrate why these powers should be given both to the Treasurer and to the ACCC will not be scrutinised.

The coalition, of course, supports sensible measures that would help Australia better manage crisis situations, things that will protect Australians wherever they may live, small businesses, big businesses, the states, the territories. That is the role of this parliament—to better protect Australians and to absorb crises shocks. But these are not powers that were asked for or required under COVID, a very similar situation of having shortages of supply. An inquiry by the Senate economics committee was the bare minimum of requirements, the bare minimum of scrutiny that should have been given.

This bill also creates a new framework for exceptional circumstances. Again, what exceptional circumstances are in this legislation that should not be examined through a Senate committee? What is so secret? What is so urgent and rushed that the Senate of Australia would not have the opportunity to review it?

I am very concerned. I'm concerned that there does need to be interim powers provided to businesses to coordinate during a genuine crisis. The priority must be to get fuel, food and medicine into all parts and points of Australia. But this legislation does not provide for Australians to understand what problem they seek to solve. What problem is it that the government is seeking to use this sledgehammer to solve? I fear we will never know until it is demonstrated to us. Retrospective powers, rushed powers, non-disallowable powers—this is legislation that bears all the hallmarks of a dangerous intervention into the democratic rights and reviews that the parliament should hold and certainly that Australians believe in. Australians fought for the right to have a democracy such as ours, and we should do that right here today.

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

First of all, I wish to congratulate Senator McDonald on her contribution, and I wish to echo many of the words she said. I hope not to speak for too long on the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill 2026. We'll see how we go, but I do think there are some very important points to be made.

My last count was 163 on the number of times the government has used what they euphemistically call time management in this place to ram legislation through. More colloquially, it's called the guillotine. Guillotines are available to governments in this place, but quite frankly this government uses them as a matter of routine, not something that is required in exceptional circumstances. In the vast majority of those cases, it has been the Labor Party and the Greens who have worked together to guillotine bills through this place. Both of those parties proclaim themselves to be champions of transparency and of the processes of this place in terms of legislative scrutiny. Yet, seemingly at every opportunity where a deal can be done behind closed doors, that deal is done, and legislation is rammed through this place without adequate scrutiny and without proper process being followed. To be perfectly honest, it beggars belief that we continue to see it. But with complete chutzpah, with complete lack of self-awareness, the Labor government continues to proclaim itself the champion of transparency, while at the same time ignoring the very reasonable requests from the shadow minister and the shadow minister's representative in this place towards this bill, in particular.

Senator Canavan made it very clear. He would have been—I won't say happy, but he would have been willing to see a short inquiry conducted today or tonight and for this bill to be considered tomorrow to at least allow a few of the key points in this bill to be interrogated by senators in this place, because that is our job. It is our job to scrutinise government legislation, to make sure it does what the government says it does, to make sure there are no unintended consequences, to make sure that powers given are proportionate, reasonable and not excessive and to make sure we aren't going to, in some way, damage those people that we are supposedly here to help. As I have said, Labor and the Greens seemingly do these deals behind closed doors and the proper processes of this place are ignored.

Let's just go through some of my concerns with this bill. I will remind those who are listening to or reading this debate that we have only had this bill for a matter of hours. Competition law is not simple. There are very few simple laws these days, but I will put that to one side. Competition law is excessively complex, and the risk of unintended consequences when you are meddling in the competition space is very real. These are significant powers being given to entities such as the ACCC and the government itself. These are big, significant powers that we are meddling with here today in a rushed fashion.

Competition law is designed to protect consumers. It's designed to protect small business. It stops large players from coordinating together to do damage in our marketplace. We don't want anticompetitive conduct to become normal, but the balance has to be right. The fact is, as Senator Canavan, Senator McDonald and others have very clearly pointed out, the existing system has worked before and has worked in a timely fashion. The current framework saw us through the COVID pandemic. That was obviously a time when there were severe economic shocks to the system, and exemptions to the competition framework were granted quickly, in a very timely fashion—in some cases, in less than 24 hours. So the argument that these special powers in this bill are necessary as an adjunct to the current framework are, quite frankly, dubious. It is dubious to say that this new arrangement is needed, because we have seen the current arrangements work in a situation where rapid action was required.

Another matter which I think does require a proper inquiry and consideration is the fact that the Treasurer's declaration power under this bill is very broad. It is not confined to a particular crisis, such as the current crisis on fuel. Once a declaration is made, it opens the door to the ACCC's exemptions from competition law, which then raises the other matter which I think is very worthy of scrutiny, which is that those exemptions from competition law are not disallowable by parliament. So it gives no capacity for this body to actually say: 'No, wait. The government and the ACCC have actually overstepped. They're actually damaging the market.' This Senate should have the power to step in and say no. That is a normal power of the Senate when it comes to matters such as this. But, instead, we are seeing these powers effectively being exempted from parliamentary scrutiny after the event.

I think that perhaps there is an argument to say that these declarations shouldn't be disallowed, but at the very least this chamber has an absolute obligation to consider whether giving up a power like that is warranted. We need an explanation. Hopefully, we will have a committee stage on this bill, and, hopefully, the minister will be able to explain it in a more comprehensive and less partisan fashion than he did in his earlier remarks. Perhaps he will be able to explain why this chamber isn't given that right, a totally normal right for this chamber to have. I'm also concerned about the matter of transparency. The exemptions made under this legislation need only be made public within seven days. Seven days in the middle of a crisis, which presumably is what is required to trigger these kinds of powers, is an awful long time.

In the modern world, there is absolutely no barrier to such decisions being made available to the Australian people and to business within 24 hours. There are absolutely no technical barriers meaning they can't be. Is there another reason why this information needs to be kept secret for seven days before being entrusted to the Australian people? I use that word euphemistically because we should always trust the Australian people. Is there a reason? That should be teased out in a Senate inquiry. I hope again that the minister has an adequate explanation for that if and when we get to a committee stage—if this bill is not guillotined like literally dozens and dozens of other pieces of legislation that have been guillotined through this place by the Labor and Greens political parties.

The other key matter that deserves investigation and deserves a proper explanation, not partisan nonsense from the minister, is why this bill is retrospective. If it is retrospective and that is justified, why do we need to rush it? Making it retrospective in a week's time is exactly the same as making it retrospective today. We could delay this bill for a number of weeks, have a proper inquiry and still make it retrospective to 1 April 2026. If you're going backwards in time with a bill, it doesn't matter if you do it three weeks later or six weeks later. But why? Why are we being retrospective in any case? What is the justification for that retrospectivity? Retrospective bills are an anathema to this place.

We should always treat bills that act retrospectively with even greater caution than we do other legislation because they effectively make things that have happened in the past legal when they potentially weren't. We need to understand exactly what those things are and how they have impacted on real people and real businesses. This is not some theoretical discussion. Laws have impacts. That's their whole point. If people are not willing to look properly at this legislation to see whether these powers, however well-intentioned, are justified, proportionate and will do what the government says they're going to do—though, to be honest, from my perspective, I don't think the government has given an adequate explanation of what they actually want to do with this bill.

I don't think they have explained the need for this bill. I don't think they have explained the need for retrospectivity. The coalition, as has been said by many speakers in this place, are absolutely willing to look at these kinds of powers. But it needs to be done in the cold, hard light of day, not in a secret deal with the Greens in some back room. That is unacceptable.

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Defence Infrastructure) Share this | Link to this | Hansard source

I think it's fair to say that the coalition is not in the business of opposing sensible measures that are going to help manage things like a fuel crisis and protect households and small businesses. But what we've seen from this government is their urgent need for us to look at this bill, to not scrutinise it at all and to pass it in a hurry. It is always very, very concerning when the Greens and Labor get together to work on backroom deals to pass emergency legislation.

The government's explanation for this is that we've got an urgent need for this legislation because of the fuel crisis that's happening in Australia. I think there are some sensible questions that need to be asked. Why isn't the current framework operating the way it should? If it's not, why has it taken until now for the government to decide that this has got to be rushed through? I think it's fair to say that, even during the COVID pandemic, extraordinary powers like these were never sought by the coalition government. We were actually able to work with the ACCC and turn around exemptions in under 24 hours without the need for exceptional powers to be granted that have no oversight from parliament and no scrutiny at all.

It is very, very concerning that the government is seeking to give both the government and the ACCC significant new powers with very little to no oversight from the parliament. That is a very concerning thing. I think everyone out there, the Australian public, are sick to death of government coming in with a strong, heavy arm, creating legislation that is going to infringe on their rights. It's fair to say that consumer protection laws are there to protect consumers. While Labor may have good intentions for this to manage what is, at the moment, a fuel crisis, the trouble with rushing through bills is the unintended consequences of granting such powers that don't come under any kind of parliamentary scrutiny.

I think it is only reasonable that, at a bare minimum, Labor allows an inquiry to happen through the Senate Economics Legislation Committee so that the committee can have a look at this bill, go through it thoroughly and ask some of these questions. This is a bill that is going to limit parliamentary scrutiny. This government is actually saying that we're not even going to have scrutiny over a bill that is going to limit scrutiny. I don't know about anyone else out there, but it concerns me a lot when government is looking to have no oversight from the parliament on what are extraordinary laws.

This bill is creating a framework to set up exceptional circumstances, and I think it is reasonable for everyone to ask what an exceptional circumstance is. At the moment, the exceptional circumstance might be the fuel crisis. But is an exceptional circumstance in the future something different to that? That is certainly what this legislation will take into account. It is not just limited to dealing with the fuel crisis. Perhaps if this bill was limited, had a very short sunset clause and existed purely for the management of the fuel crisis, that might be slightly more palatable. But it doesn't. This is going to look at what exceptional circumstances exist well into the future—things we don't even know will happen. It will be up to the Treasurer to decide what those exceptional circumstances are. That will then allow the ACCC to exempt conduct that would otherwise breach competition law in Australia.

I think we've got to be really careful if we're exempting competition laws and stopping that business from occurring. There may be unintended consequences to that. Do you know who pays for those unintended consequences when governments rush through legislation? It's the Australian people who will pay the ultimate price of those unintended consequences and overreach by government. It is always concerning when you have someone from the government turn up and say, 'Hi, I'm here from the government, and I am here to help.' That is what I am hearing from this government, and I think every Australian should be very concerned by the approach they are taking.

The bill's intentions are to allow businesses to coordinate during major disruptions, and I think that that is a reasonable thing, but can't that happen under the current framework? Hasn't that been occurring under the current framework? Or is there more about this fuel crisis that this government is not telling us? Is there more that they know and are not sharing with the Australian people and not sharing with the opposition or the parliament? And that's a problem when we're talking about a bill that is going to limit scrutiny of the parliament and we're not really being told why it's urgent and we're not allowed to ask questions and it's very likely that the government will just guillotine the legislation through, as it has been doing in this place on a regular basis, so that it doesn't allow a committee process or any kind of scrutiny. It's not allowing it to go off to a committee to hold a wholesome inquiry. This is really concerning. Is there more that we don't know?

Are these extraordinary powers needed because this government is not being honest? Just in the handing down of the budget we have certainly seen that there are broken promises everywhere. I don't know about everyone else, but I don't trust a single word that this government says, because it will go back on its word anytime it needs to. They come and say, 'We need this, and these are the good intentions that we have,' but, frankly, that does not cut it for me, because time and time again we have seen this government walk back commitments and promises that it has made. We've had legislation that hasn't explored what unintended consequences might look like, and it is the Australian people who ultimately pay the price for government overreach and sloppily drafted legislation.

I think it's fair to say that, in a genuine crisis, we do want businesses to be able to coordinate. We've got to have the priority of keeping fuel supply, food and essential goods moving. We've got to try and inoculate households and small business so that they're not suffering because government is too slow to respond in a crisis. That's why the coalition is prepared to work constructively with the government. We're willing to allow common sense so that we keep Australia moving, because that's what Australia needs. Australia needs to keep moving. There are things that happen far away from our shores that impact our economy and our way of life, so it is completely logical and reasonable that we would put measures in place to allow for things like food to keep finding its way to our supermarkets, farmers to be able to keep planting their crops and businesses to be able to stay open.

I think the key concern for us with this particular legislation is that competition law exists in Australia for a reason. It is protecting consumers and small businesses. It stops the large players from coming in and coordinating in a way that damages competition. It stops the big players from pushing the smaller businesses out of business, and that's really important. So we have to think very carefully when this government is putting forward legislation that would essentially allow the ACCC to put that competition law to one side during what they would define as a crisis, and that definition is whatever the Treasurer decides it to be. We have to be really careful. Any exemption from competition law in Australia needs to be taken very seriously. Perhaps temporary coordination is something that is necessary from time to time, but that should be limited. How long it would go for and in exactly what circumstances it would operate should be very specific, and we have to make sure that any kind of suspension or a temporary suspension of those protections doesn't have the unintended consequence of putting a small-business owner out of business and that it doesn't unfairly advantage bigger players.

We've got to make sure we can do all of that, which means that a bill like this requires some scrutiny. It's why we should be thoroughly working through bills of this nature and doing our due diligence. As elected members in the Australian parliament, we are trusted by the Australian people to go through and do that due diligence, and when this government takes that opportunity away from us, it means that we can't fulfil our obligation to the Australian people. That is an obligation I take very seriously, because I think it is very important that, when we are looking at any piece of legislation, particularly when it is looking at having extraordinary powers with no parliamentary oversight, it is incumbent on every single member in this place to take their obligation to the Australian people very seriously.

In terms of how the existing system works, I don't think this government has provided a reasonable or thorough explanation as to why the framework that currently exists hasn't been adequate to be able to respond to the fuel crisis in Australia or any emerging crisis that may happen in the future. I don't think this government has been able to explain why they need these extraordinary powers and why they need this piece of legislation. Certainly, sending it off to a Senate inquiry would allow for us to get to the bottom of exactly what the intention of this legislation is and exactly why the government feels that it needs these extraordinary powers.

The Treasurer's power to declare exceptional circumstances is very broad. It is not confined purely to the current fuel crisis. Once a declaration is made, it will open the door to the ACCC to provide exemptions to competition law, which the government says would not be disallowable by the parliament. If those exemptions are made, this parliament could not go through and disallow those. That is extraordinary. That is a significant power that will exist outside of parliamentary scrutiny. I think parliamentary scrutiny is a really important safeguard we have in this country to protect people from government overreach or the unintended consequences of legislation. I think a Senate inquiry is reasonable to test whether the threshold is tight enough on this. I think we should also test whether the government and the safeguards it is putting in place on this legislation are strong enough.

The Treasurer's declaration under exceptional circumstances would be disallowable by the parliament, but the ACCC exemptions made after that declaration would not be. It means that, while the parliament could reject the broad declaration, it couldn't do anything about exemptions the ACCC has granted. The ACCC needs to make the public aware within only seven days of the exemptions. Seven days is a really long time when we live in a world where you could pick up your phone put something up on a website or social media. It could be instant. It is really unclear as to why seven days is the timeline this government has chosen, particularly when there is no scrutiny and no oversight to this. It should be transparent. It be immediate.

This bill is also backdated to 1 April 2026, and the government has provided no reason for that specific date. Basically, all the government has said is, 'We need this flexibility, we need this legislation to be able to deal with the fuel crisis and future crises that may come up in Australia's future,' but I don't think it has done its job in justifying why this bill is needed and why the current framework is not adequate to deal with these things. Either the government is hiding something or this is just a really grotty power grab to make sure it can intervene in things that it probably shouldn't.

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Citizenship and Multicultural Affairs) Share this | Link to this | Hansard source

Competition law exists for very good reasons. It exists to protect consumers, it exists to prevent collusion between big businesses on price or supply or market behaviour that would damage competition and undermine the rights of consumers, it exists to prevent asymmetries of information that would disadvantage consumers. Any changes or exemptions to the competition laws need to be viewed with gravity because, potentially, they will disadvantage consumers and allow businesses the freedom to increase prices or lessen competition and, overall, will reduce economic welfare.

It may be, as the proponents of the Competition and Consumer Amendment (Responding to Exceptional Circumstances) Bill argue, that at times exemptions need to be made to the normal application of competition law because of exigencies, national emergencies or extraordinary circumstances. The coalition recognises—and I recognise—that temporary coordination between businesses may be necessary in a time of crisis to alleviate supply shortages, coordinate in response to national emergencies and help fulfil a government objective that might not be a commercial objective. But the important point is that such a framework already exists under existing competition law, has been tested previously and has been shown to work effectively.

We had the COVID pandemic, an emergency, or a set of extraordinary circumstances, and that lasted for close to two years and involved some remarkable disruptions to supply chains, whether it was supermarket goods, pharmaceuticals or personal protective equipment and the like. We managed well through the COVID crisis. If you look at our existing competition law framework, the ACCC was able to grant 28 authorisations or exemptions to the competition law framework during the COVID crisis, often turning those around within a matter of days, sometimes even in a matter of hours—24 hours to 48 hours. We saw that framework work. Also, during the AdBlue and urea supply crisis we saw the ACCC use the existing framework and exemptions that exist within the Competition and Consumer Act to grant urgent interim authorisation within a day. A framework exists. It has been shown to work well during the COVID crisis and others. Even before the COVID crisis, the ACCC, in a normal year, would issue somewhere between 20 and 30 exemptions or authorisations under the Competition and Consumer Act to allow behaviour that would otherwise fall foul of the Competition and Consumer Act.

We have a system that's working well, that is subject to appropriate oversight and that has proven itself fit for purpose to deal with existing crises, supply shortages and whatnot, and the question then is: Why do we need a new piece of legislation? In particular, why is a new piece of legislation which changes that system and introduces a whole new set of powers being rushed through? Why isn't the normal course of business being followed—a referral to a Senate committee and an inquiry? Why isn't there an examination—as the Senate, this chamber, is meant to do, which our committee process is designed for and intended to do—of the consequences of this legislation, whether the powers are overly broad in scope and whether parliament exercises appropriate oversight? They're all normal things that a committee inquiry would help elucidate and flesh out, but none of that is being followed this time around.

I have several concerns about this bill. Whilst we understand the intent of the bill—and we do not necessarily have an objection to the intent of the bill—the existing framework has been shown to be fit for purpose. What we have in this bill is significant changes to that framework.

Firstly, we've got provisions that will allow the Treasurer to declare, basically, an emergency or exceptional circumstances, and those powers are exceptionally broad. Once such a declaration is made by the Treasurer, it opens the door for the Australian Competition and Consumer Commission to introduce exemptions from competition law. The Treasurer's power to make this declaration is a disallowable instrument, but any exemptions that the ACCC makes following a treasurer's declaration are not disallowable. This means that they are not subject to scrutiny by the parliament and the parliament is not able to concern itself with, and apprise itself of, these exemptions to competition law—exemptions which potentially, if misused or not used correctly, could jeopardise and hurt consumers. That should be a concern. The powers of the Treasurer to make such declarations under this act would be exceptionally broad, and the ACCC exemptions are not going to be scrutinised by parliament and not disallowable.

But of perhaps equal concern is the fact that the ACCC will not need to make public its exemptions until after a period of seven days. Now, why would it take so long for the ACCC to exempt certain businesses from the normal requirements of competition and consumer law? Surely that should be of interest not only to the market and not only to shareholders but to consumers and to competitors. If the ACCC is to exempt certain players in certain sectors from the provisions of competition law and allow them to commit what would otherwise be breaches of competition law, the parliament and the public should be notified of that as soon as possible. There's no reason given in the explanatory memorandum and there has been no explanation on the floor of parliament as to why a seven-day period is required. Why could the ACCC not comply before that period?

Also, this legislation is retrospective. It will be given retrospective effect from 1 April 2026. Again, there has been no justification for why this legislation is being backdated. Is there anticompetitive conduct that has been going on that the ACCC is aware of—that we have not been told about—that would fall foul of existing laws and that this legislation would retrospectively seek to validate? We don't know. Is it in response to the Middle East fuel crisis? The conflict in Iran began on 28 February, so some 31 days before the date of this legislation's backdating. If that's the justification, why has 1 April 2026 been chosen, not some earlier date or some later date? Bear in mind there's no second reading speech on this bill yet, so no minister has actually explained why these powers are necessary. All we've got is the explanatory memorandum. All we've had from the Treasurer's office is that they need sufficient flexibility. This is a case of retrospective lawmaking, which should always be of concern to legislators and should always be of concern to the parliament and should only ever be done in exceptional circumstances. If those exceptional circumstances exist, the case should be made publicly for those exceptional circumstances—what they are.

Finally, and most importantly, there has been almost no scrutiny of this bill. It was introduced this morning. It has not gone through the House. It has come straight to the Senate. It's almost certain to have its progress hastened or guillotined. What is the justification for that? What is the emergency that is being dealt with? Is there some sort of anticompetitive conduct or collusion that has been going on that we haven't been told about that is in violation of existing competition law and that this is designed to retrospectively fix? We do not know the answer because we don't have ministers in here explaining or giving the rationale for this legislation.

We have not had the courtesy of a normal Senate committee inquiry to examine these issues. That is why the coalition is moving amendments in the Senate—because we believe an inquiry is important and in the public interest and in the national interest. Bear in mind that the ACCC, as it currently stands, has these powers, and they have been used before, during the COVID crisis and others, to exempt conduct from the normal rigours of competition law. Are these existing ACCC powers genuinely inadequate? What are the shortcomings? When have they not been able to be used as intended?

We would like a Senate inquiry to test whether the power of the Treasurer of the day to make these sorts of declarations is too broad. Should it be more narrowly defined? Should better justifications be given before such a broad declaration is made?

We would like a Senate inquiry to examine the very pertinent question of whether the ACCC exemptions should be reviewed by parliament as a disallowable instrument, as would normally be the case for subordinate legislation or legislative instruments.

We would like a Senate inquiry to examine why the ACCC would be given up to seven days to announce the details of any exemption, when such information is critical, vital and time sensitive. It's of interest not only to consumers but to the market, to shareholders and to other competitors and players in those sectors. Surely that transparency should be an urgent and immediate requirement under this legislation, not something that can wait seven days.

We would also like a Senate inquiry to examine the rationale for the retrospectivity of this legislation. Is it warranted? Why is it warranted? What has happened between 1 April and today that justifies the retrospectivity? Is there conduct that has been going on that the ACCC has not sufficiently authorised, has been unable to authorise, which falls foul of competition law, that this would give a retrospective legal blessing or sanctification to? If that is the case, the Senate should be made aware of it, the parliament should be made aware of it, the public should be made aware of it, then we can decide with open eyes, with informed knowledge, with informed consent about what exactly it is we are voting for.

We would also like a Senate inquiry to review whether these powers are properly limited in time and scope. These are powers that in the normal course of events should not be exercised. They are extraordinary powers. As I said earlier, competition law exists for a reason and, in the normal course of business, the normal rules of competition law should apply because they are there to protect consumers, to discourage and deter and penalise anticompetitive conduct, to prevent collusion, and to prevent not only misuse of market powers but also monopolistic and oligopolistic power. If we're to grant powers to the Treasurer and to the ACCC, in many cases powers that will not be reviewable by this parliament, then we want to make sure that those powers are limited and properly constrained, limited in time and scope to circumstances as well, and that is what I would expect a Senate inquiry to look at.

Finally, we would like a Senate inquiry to examine some set-and-review mechanisms, a normal part of legislative process, especially when powers like this are being introduced. We would expect that there would be reviews of such legislation and that parts of the legislation should sunset.

But more broadly, I just do not think a case has been made for this legislation. It has been dumped on us today at short notice. It has not been through the House. There has been no detailed or comprehensive public or parliamentary justification for why this legislation is needed. Frankly, the whole thing is highly suspect. I'm not conspiratorially minded but these sorts of things give me pause. Why is something being introduced in parliament and likely to be guillotined today for which there has been no parliamentary debate? Why is this piece of legislation being backdated to 1 April but only 1 April? What is going on? Why can't we have an explanation? Why can't we have an explanation from someone who is a proponent of this legislation making the case for why this is necessary? We're reasonable people on this side of the chamber. We are prepared to examine the merits of the case. We recognise we have been in a fuel and energy crisis prompted by the conflict in the Middle East, and we have shown ourselves, whether it was a support for the cut to the fuel excise or other measures, willing to support the government in a political, legislative and public sense for measures necessary to deal with this crisis. But in this instance, we are simply being left in the dark and it is hard not to be suspicious or at least be alert to something that is going on here.

As people in the Senate, my colleagues, know much better than me, it is highly unusual for a bill to be guillotined through. Unfortunately, it is becoming more of a habit under this government but it should be for left for extenuating and extreme circumstances. It is very unusual for a bill not to be referred to a Senate inquiry. It is also unusual to do so the day after the budget. I would expect the government's focus, and rightly so, to be on selling and prosecuting and making the case publicly in parliament for their budget; instead, it is introducing this piece of legislation that really doesn't have anything to do with the budget but that makes some pretty drastic changes to competition law in a retrospective fashion that threatens consumers and leaves the parliament and the public in the dark about what the motivations are. That is why we should be opposing this legislation unless it is referred to a committee for an inquiry.

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Cadell, you only have a short time before the hard marker, but you will be in continuation.

Ross Cadell (NSW, National Party, Shadow Minister for Water) Share this | Link to this | Hansard source

Thank you, Deputy President. I will give you the Reader's Digest version of what I was going to say. When I was speaking on gun laws, I mentioned that I didn't blame the Greens for the way they voted because it is in their DNA to oppose them, but I was critical about Labor. But, on this, the boot is on the other foot. We have Labor doing what's in their DNA: introducing a bill late, not giving the reasons for it and guillotining it through with no debate, no inquiry, no knowledge—because that is their core and DNA. But I find it strange that the Greens should support this, because this isn't in their DNA. I note Senator McKim was there, my militant brother on the supermarket inquiry. He wanted more powers to the ACCC, and now we're not giving the ACCC the ability to prosecute people. As Theodore Logan said, 'Strange things are a foot at the Circle K'—

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Cadell, resume your seat. It being 12.15, we will now proceed to senators' statements.