New deals, new rules: what you need to know about mandatory merger notifications
This Q&A gives an overview of the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth) (Merger Act) that will overhaul the existing Australian merger control regime from 1 January 2026. Voluntary notification under the new regime will be available from 1 July 2025.
What is happening?
Australia is introducing mandatory merger notifications for transactions meeting specific notification thresholds or requirements. The Competition and Consumer Act 2010 (Cth) will be amended to replace the existing voluntary framework. This will have a major impact on how parties approach acquisitions and how they will be required to interact with the Australian Competition and Consumer Commission (ACCC).
When is the merger regime taking effect?
You will have to notify the ACCC of acquisitions that meet the notification thresholds from 1 January 2026. However, you can voluntarily notify under the new regime from 1 July 2025 (which may be recommended for notifiable transactions intended to complete on or after 1 January 2026).
Between 1 July 2025 and 31 December 2025: You will not need to notify under the new regime for any informal clearances or merger authorisations that have not raised any objections, provided the proposed transaction is completed within 12 months of the ACCC’s decision. If the acquisition has not been put into effect before the 12-month period lapses, you will need to re-notify under the new regime.
Who needs to notify the ACCC?
The person who intends on acquiring the shares or assets must notify the ACCC.
What acquisitions are captured?
Prior to completion of a transaction, you will need to notify the ACCC to receive approval for the acquisition to go ahead in certain circumstances detailed in the table below. The regulations are aimed for release in Q2 2025 to clarify how turnover and transaction value thresholds will be calculated. The thresholds will be reviewed 12 months after coming into effect. In the meantime, the expected monetary thresholds as per the Treasurer’s second reading speech are set out below:
| Control test | The acquirer must notify the ACCC where the acquisition results in control within the established meaning of ‘control’ under 50AA of the Corporations Act 2001 (Cth). The definition of ‘control’ considers the influence that can be exerted by the acquirer and the capacity of the acquirer to determine the outcome of an entity’s financial or operating policies. |
| Monetary thresholds The acquirer will have to notify the ACCC where: | a. the merger parties (including the acquirer group) have a combined Australian turnover above $200 million; and b. either: i. the Australian turnover of the target business is above $50 million; or ii. the global transaction value is above $250 million. |
| a. the acquirer group has an Australian turnover above $500 million; and b. the Australian turnover is above $10 million for at least two of the merger parties. | |
| Serial acquisitions A three-year cumulative turnover threshold will also apply where: | a. combined Australian turnover of the merger parties (including the acquirer group) is above $200 million; and b. the cumulative Australian turnover from acquisitions by the acquirer in the same or substitutable goods or services over a three-year period is at least $50 million. |
| a. acquirer group has an Australian turnover above $500 million; and b. the cumulative Australian turnover from acquisitions by the acquirer in the same or substitutable goods or services over a three-year period is at least $10 million. | |
| Targeted thresholds | The Treasurer will have the power to set targeted notification thresholds for certain acquisitions. This will be based on specific sectors, deal types or markets that the ACCC raises concerns about being high-risk for substantially lessening competition. The Treasurer has indicated an intent to mandate notification for: a. supermarket mergers; b. acquisitions of interests of 20% or more in an unlisted or private company where one of the parties has more than a $200 million turnover; c. fuel, liquor and oncology-radiology mergers; and d. childcare, aged care, medical GP, and dentist mergers as indicated by Treasury based on the Competition Taskforce’s work on merger control. |
Are there any exceptions to the thresholds?
There will be certain land acquisitions that are exempt from the notification requirements, generally for residential property development and commercial property transactions, unless they meet other additional notification threshold criteria.
How does the ACCC review a notification?
The ACCC will continue to apply the ‘substantial lessening of competition’ test to proposed acquisitions. An acquisition may have the effect of substantially lessening competition in a market if it would, or would be likely to have, the effect of creating, strengthening, or embedding a substantial degree of power in a market.
The merger review will occur in two stages:
Phase 1: The ACCC will undertake an initial review of any competition concerns and make a determination that the proposed acquisition can occur with or without conditions. The ACCC may refer the proposed acquisition to Phase 2 where the ACCC would like to further investigate any competition concerns. This determination will occur within 15-30 business days of notification (can be extended at the election of the ACCC).
Phase 2: The ACCC will commence an in-depth review to determine if the proposed merger may substantially lessen competition. The ACCC will consider whether there is a net public benefit to the community that outweighs the negative impact that may result where the acquisition may or is likely to lessen competition in a market. The ACCC will decide whether to block the proposed acquisition or allow the acquisition to occur with or without conditions. This will occur within 90 business days which begins immediately after Phase 1 and can be extended (including where the case is complex or there has been a material change of fact).
The merger parties then have 12 months to complete the transaction from the date of the ACCC determination, otherwise the merger parties will need to re-notify of the acquisition.
How much is a notification filing going to cost?
The filing fees have not been finalised; however, the Explanatory Memorandum suggests that the fees will be between $50,000 and $100,000 per transaction, with exemptions for some small businesses.
What are the penalties for breaching the new regime?
Where merger parties do not comply with the regime by:
- not notifying the ACCC of the acquisition when they meet any of the notification thresholds;
- notifying the ACCC but completing the acquisition without the ACCC determination;
- not complying with conditions imposed by the ACCC to allow for the acquisition to go ahead;
- making material changes to the facts submitted to the ACCC (without an update to the ACCC);
- notifying the ACCC with incomplete or misleading statements,
the following penalties can apply:
- $50 million penalty;
- three times the value of the benefit obtained that is reasonably attributable to the breach; or
- if the benefit cannot be determined, 30 percent of adjusted turnover during the breach turnover period.
Individuals involved in providing misleading information can be penalised up to $2.5 million.
The Federal Court can order the parties to de-merge or grant injunctions to stop an acquisition from being put into effect where an acquisition is made unlawfully and will be considered void.
Directors may also have directors duties to comply with.
What if I am not sure if I need to notify?
The ACCC can waive the obligation to notify of an acquisition where a transaction may meet the thresholds but poses minimal competition concerns or the parties would like clarity around notification. You will be able to apply for a decision to determine if notification is required. We expect to see this process unveiled by mid-2025.
What happens if we want to challenge the ACCC’s decision?
Merger parties will be able to apply for:
- an internal review by the ACCC to affirm, vary or set aside it’s initial decision; or
- merit review by the Australian Competition Tribunal to affirm, vary or set aside the ACCC decision; and
- judicial review by the Federal Court of Australia.
What is next?
The Merger Act will introduce other changes to the regime that will impact how merger parties interact with the ACCC, including an update to the ‘substantially lessening competition test’, the public acquisitions register, how long it will take for deals to clear and associated costs, and what will need to be provided when decisions are reviewed.
McCullough Robertson regularly advises clients on merger authorisation, competition and regulatory issues. If you would like any assistance understanding the merger notifications process, regulatory assessments, and how this will impact your business, please reach out to one of our partners below.
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This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
