Merger Control 2026 Comparisons

The core merger control legislation in Australia is the Competition and Consumer Act 2010 (Cth) (CCA), specifically section 50 and Part IVA. This framework was fundamentally overhauled by the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth), which transitioned Australia from a voluntary judicial enforcement model to a mandatory and suspensory administrative regime effective from 1 January 2026.

This primary legislation is strictly operationalised by detailed legislative instruments that dictate notification thresholds, procedural requirements, and filing fees.  The critical instruments are the Competition and Consumer (Notification of Acquisitions) Determination 2025 and the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No 1) Determination 2025, with the latter introducing highly technical changes that took effect on 1 April 2026.

Significant regulatory guidance is also provided by the Australian Competition and Consumer Commission (ACCC), most notably the ACCC Merger Assessment Guidelines, the ACCC’s interim Merger Process Guidelines 2025, the ACCC Merger Reform: Frequently Asked Questions, and specific interim guidance on the increasingly popular Notification Waiver process, which define the regulator’s day-to-day administrative expectations.

Under the CCA, the minister possesses the power to designate specific sectors for mandatory notification regardless of general financial thresholds. Currently, the major supermarkets (Coles and Woolworths) are subject to bespoke designations requiring them to notify any acquisition of a supermarket business or associated land.

Beyond competition law, foreign investments remain governed by the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA), administered by the Foreign Investment Review Board (FIRB). The FATA typically requires foreign investors to obtain no-objection notifications for acquiring certain interests in Australian entities or land. While the ACCC and FIRB operate distinct regimes, FIRB delegates the “competition” limb of its national interest test to the ACCC and will generally not issue a no-objection notification until ACCC clearance is secured.

Other relevant sector-specific ownership limits are included in the Financial Sector (Shareholdings) Act 1998 (Cth) (banking and insurance), the Broadcasting Services Act 1992 (Cth) (media), and the Telecommunications Act 1997 (Cth).

The ACCC is the primary enforcement authority. Under the 2026 regime, the ACCC’s role has transitioned to the first-instance administrative decision-maker for all merger clearances. It conducts Phase 1 and Phase 2 reviews (as well as public benefit assessments) and holds the unilateral administrative power to permit, conditionally permit, or outright prohibit a transaction.

The Australian Competition Tribunal (the “Tribunal”) serves as the appellate body, conducting limited “merits reviews” of the ACCC’s administrative decisions. The Federal Court of Australia’s role in merger control is now strictly confined to judicial review of the Tribunal’s decisions on points of law, and presiding over civil penalty proceedings brought by the ACCC for gun-jumping or procedural contraventions. Merger parties can no longer directly apply to the Federal Court for a pre-emptive or defensive declaration that a transaction does not substantially lessen competition.

Under the regime that commenced on 1 January 2026, notification is strictly mandatory and suspensory. Transactions that satisfy the jurisdictional thresholds and control tests must be notified to the ACCC and cannot be put into effect until formal clearance is granted.

Notification Waiver Process

A prominent feature of the 2026 regime is the “Notification Waiver” process. For transactions that technically satisfy the financial thresholds and control tests but are competitively benign (eg, zero overlap or negligible market shares), parties can apply for an early waiver. If granted within the 25-business-day statutory period, this legally removes the obligation to submit a full notification.

Exceptions are limited and technical

Narrowly drawn statutory exceptions exist, primarily aimed at routine commercial conduct. Safe harbours exist for certain land and property acquisitions, internal restructures with no change in control, and temporary holdings by administrators or underwriters. Additionally, certain acquisitions by financial institutions are exempt to ensure market liquidity and capital provision, alongside carve-outs for specific government-mandated acquisitions, and share purchases in entities governed by Chapter 6 of the Corporations Act 2001 (Cth) that stay below the 20% voting power threshold. The exceptions can be technical and reliance will be fact-specific.

Voluntary notification

Voluntary notification remains an available option for transactions that do not satisfy jurisdictional thresholds. The ACCC holds a “call-in” power to formally review any transaction that does not meet jurisdictional thresholds if it suspects a substantial lessening of competition. For sub-threshold transactions involving close competitors or concentrated markets, merger parties are recommended to undertake a more substantive upfront competition analysis (as would have been previously done under the ACCC’s legacy informal merger clearance regime) to determine whether a voluntary filing is appropriate for the purposes of securing legal certainty and a statutory “safe harbour” against future challenges.

The penalties for failing to notify (gun-jumping) under the new regime are significant and substantial. A notifiable transaction completed without ACCC approval is automatically void. Failure to obtain approval or taking steps to integrate prior to doing so, can also give rise to cartel risk.

Furthermore, the ACCC can seek substantial civil penalties in the Federal Court. Maximum penalties for corporations are the greater of:

• AUD100 million;
• three times the value of the reasonably attributable benefit obtained; or
• if the benefit cannot be determined, 30% of the corporation’s adjusted turnover during the entire “breach turnover period”.

While the mandatory regime is nascent, the ACCC is actively monitoring markets and has publicly indicated a zero-tolerance policy towards gun-jumping. Deal teams must observe the suspensory obligation as maximum penalties are a genuine risk for deliberate circumvention.

When a failure to notify is prosecuted as gun-jumping cartel conduct, separate criminal penalties can also apply.

The regime captures the acquisition of shares, assets, or control of an entity and looks at the substance of the transaction rather than its legal form.

“Assets” Are Defined Broadly

A feature of the 2026 regime is the expansive definition of what constitutes an “asset”, which can include real property and leasehold interests, intangible and intellectual property, plant and equipment, and contractual rights (including options for land development rights or the assignment of specific supplier or customer contracts). While the legislation contains narrow “ordinary course of business” exceptions, the breadth of the asset definition means deal teams must now routinely screen standalone commercial property, IP, and licensing transactions for mandatory merger filing obligations.

Discrete Asset Acquisitions

A critical distinction was introduced on 1 April 2026 between acquiring “all or substantially all” of a business and “discrete asset acquisitions” (eg, purchasing a specific intellectual property portfolio, a single manufacturing facility, or a specific leasehold) that do not constitute all, or substantially all, of the assets of a business. Discrete asset acquisitions are subject to different, transaction-value thresholds to ensure the ACCC only reviews the transfer of assets that are competitively meaningful.

Exempt Transactions

Internal restructures involving related bodies corporate are generally exempt, provided there is no change in ultimate control.

Under the 2026 mandatory regime, assessing “control” requires navigating a dual-layered, concurrent framework. Dealmakers must assess transactions against both a qualitative “practical control” test and quantitative “voting power” thresholds. These tests are not mutually exclusive; triggering either one mandates a formal notification (assuming the financial thresholds are also met).

The Qualitative Test: Practical Control (Section 50AA)

The foundational test relies on a modified version of section 50AA of the Corporations Act 2001 (Cth). In this context, “control” is defined as the capacity to determine the outcome of decisions regarding an entity’s financial and operating policies. This requires an assessment of both legal rights and the practical influence an acquirer will be able to exert. Rights that exceed “passive” protection, such as the power to block the annual budget, strategic business plans, or the appointment of senior management, typically satisfy the control test in section 50AA of the Corporations Act 2001. Under this test, an acquisition of a relatively small minority equity stake (eg, 15%) is captured if the accompanying shareholder agreement grants the acquirer board dominance or extensive negative control rights (such as vetoes over strategic direction, CEO appointments, or the annual operating budget). If an acquirer obtains this practical control, the transaction will be considered to satisfy the requisite control test.

The Quantitative Test: Objective Voting Power Thresholds

While the Competition and Consumer Act provides a general exemption (under section 51ABS) if practical section 50AA control is not acquired, the 1 April 2026 legislative amendments introduced hard “voting power” thresholds that act as strict carve-outs to that exemption.

This means that even if a minority stake is entirely passive, and the acquirer successfully proves they completely lack practical control over the target’s policies, notification is strictly required if the acquisition results in the acquirer’s voting power crossing specific statutory lines. These thresholds include:

• Moving from ≤20% to >20% in a private, unlisted company (fewer than 50 members).
• Moving from ≤20% to >20% in a widely held or listed entity (a Chapter 6 entity, addressing scenarios where a party already had practical control but increases their stake).
• Moving from <20% to ≥50% in any public company (or moving from ≥20% to ≥50% in any private/public body corporate).

It is important to distinguish between shareholding and voting power because the mandatory 20% notification threshold is triggered by the aggregate of all relevant interests and associate holdings, meaning an acquisition can satisfy the bright-line thresholds even if the acquirer’s direct legal shareholding remains below the trigger.

Implications for Notification Assessments

This concurrent framework operates as a sophisticated regulatory net. It ensures the ACCC has regulatory visibility over both highly engineered minority control structures (captured by the section 50AA qualitative test) and creeping, purely passive equity accumulations (captured by the quantitative voting power thresholds).

Associate “Minority Shareholder” Carve-Out

Importantly, for private equity, venture capital syndicates, and consortiums, investors will not be deemed “associates” (meaning their voting power is not aggregated) merely because they hold standard “minority shareholder protection rights” designed solely to protect the financial value of their investment rather than exert joint commercial control. This also applies for the purposes of revenue calculation – see 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds.

The mandatory monetary thresholds introduced in 2026 are multifaceted and utilise a combination of acquirer revenue, target revenue, and transaction value.

General Monetary Thresholds

For the acquisition of shares or assets that comprise all or substantially all of the assets of a business, satisfaction of the following thresholds will give rise to a notification requirement (if control is also acquired):

• Acquisitions resulting in large or larger corporate groups (“Large Merged Firms”) – Combined gross annual Australian revenue of the acquirer and target groups is ≥AUD200 million, and either the target’s gross Australian revenue is ≥AUD50 million (or the transaction value is ≥AUD250 million).
• Acquisitions by very large acquirers – Acquirer group’s gross annual Australian revenue is ≥AUD500 million, and either the target’s Australian revenue is ≥AUD 10 million (or the transaction value is ≥AUD 50 million).
• Cumulative (serial) acquisitions – The regime includes three-year look-back provisions. Notification will be required for:
1. Large Merged Firms where the combined acquirer and target annual revenue is ≥AUD200 million, and the cumulative Australian turnover of targets acquired by the principal party in the same or substitutable sectors over the past three years is ≥AUD50 million.
2. Very large acquirers where the acquirer turnover is ≥AUD500 million, and the cumulative Australian turnover of targets acquired in the same or substitutable sectors over the past three years is ≥AUD10 million.

For the cumulative threshold, only individual prior transactions with a target turnover >AUD2 million count toward this aggregation.

Discrete Asset Acquisition Thresholds

For the acquisition of discrete assets that do not comprise all or substantially all of the assets of a business, satisfaction of the following thresholds will give rise to a notification requirement:

• Large Merged Firms – Acquirer group’s gross Australian revenue is ≥AUD200 million, and the transaction value is ≥AUD200 million.
• Very large acquirer – Acquirer group’s gross Australian revenue is ≥AUD500 million, and the transaction value is ≥AUD50 million.

Discrete asset acquisitions with a transaction value of ≥AUD2 million may also be captured where the creeping acquisitions threshold has otherwise been met.

Sector-Specific Thresholds and Ministerial Designations

The Treasurer possesses the statutory power to “designate” specific sectors or classes of acquisitions that will be subject to lower or bespoke jurisdictional thresholds. This mechanism is specifically intended to capture “creeping acquisitions” in highly concentrated markets where incremental transactions would otherwise fall below the general economy-wide triggers.

This power was first exercised via the Competition and Consumer (Notification of Acquisitions–Supermarkets) Determination 2025. Under this instrument, designated “major supermarkets” are subject to a strict zero-dollar notification threshold for the acquisition of any “supermarket business” or land intended for supermarket use. This designation effectively overrides the general monetary and discrete asset thresholds mandating ACCC notification for all such transactions regardless of value or scale. Other sectors that have been identified as priority sectors for potential designation include liquor, fuel retailing, certain health and medical services, and childcare and early learning. Given the dynamic nature of applicable thresholds, regularly checking for updated ministerial determinations is recommended.

The calculation of jurisdictional thresholds requires a technical assessment of Australian revenue and global transaction value, with specific rules governing currency conversion and asset valuation. Both revenue and transaction value must be calculated as of the “contract date” (the date the definitive agreement is executed).

Australian Revenue (Turnover) Test

The “Australian revenue” threshold is calculated based on gross revenue derived from sales to customers in Australia in the last full financial reporting year.

• Nexus: Revenue is attributed to Australia if the customer is located in Australia, regardless of the billing entity’s domicile.
• Basis of calculation: Revenue must be calculated on a “gross” basis (excluding GST and other taxes) and is derived from the entity’s audited financial statements for the most recently completed financial year.
• Valuation method: The revenue threshold is based on book value as recognised under Australian Accounting Standards (or equivalent international standards).

Transaction Value

The transaction value threshold is a “global” test, meaning the total value of the deal is assessed even if only some of the assets or part of the business are located in Australia.

Valuation method

The value is the higher of:

• the fair market value of the shares or assets being acquired; or
• the total consideration (received or receivable) as stipulated in the transaction documents.

Inclusions

The value must include all cash, equity, assumed liabilities, and the estimated value of contingent consideration, such as earn-outs or deferred payments.

Foreign Currency Conversion

Section 7–40 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 sets out mandatory, bifurcated rules for converting foreign currency to Australian Dollars (AUD) for both revenue and transaction value.

• The “audited financials” rule: If a revenue amount or asset value is derived directly from an entity’s formal financial report, provided that report was prepared in accordance with recognised accounting standards and properly audited under the Corporations Act 2001 (or an equivalent foreign law), the parties must use the specific exchange rates that were utilised in that audited financial report and the entity’s internal accounting systems.
• The “average exchange rate” rule: If the figure is not derived from such audited accounts (eg, the forward-looking calculation of the transaction value or consideration at signing), the amount must be translated using an average exchange rate for the period most closely corresponding to the period to which the amount relates, being either the exchange rate published by the Reserve Bank of Australia or a publicly and commercially available market exchange rate.

Acquirer Group

Threshold calculations are performed on a consolidated group-wide basis, incorporating the gross Australian revenue (excluding taxes) of the acquirer and all its “connected entities” globally.

Connectivity is primarily determined by the “practical influence” test under section 50AA of the Corporations Act 2001, which captures any entity where a party has the capacity to determine financial and operating policies. This includes ultimate holding companies, sister companies under common control, associates (including anyone acting or proposing to act “in concert”, or anyone who is a party to a relevant agreement for the purpose of controlling or influencing the affairs of another entity), and joint ventures where the acquirer exerts de facto strategic influence.

Associate “Minority Shareholder” Carve-Out

Relationships and voting power arising solely from standard minority shareholder protection agreements (in private companies with 50 or fewer shareholders) are excluded from acquirer group revenue (and voting threshold) calculations that would otherwise be caught by the broad definition of “associates”. Provided an investor holds purely defensive rights, such as standard vetoes over capital reductions or constitutional changes, without the capacity to influence the board composition or financial policies, these entities are not treated as associates, and their independent portfolios are disregarded.

Target Group and Business Assets

For share acquisitions, target revenue is limited to gross annual revenue derived from customers in Australia specifically attributable to the target entity being acquired. While the seller’s retained annual group revenue is excluded, the calculation must include the consolidated annual revenue of the target and any entities it controls.

For asset acquisitions where the assets comprise all or substantially all of the assets of a business, the gross annual Australian revenue attributable to the business is the relevant metric. For acquisitions of discrete business assets, the tests look at the transaction value rather than the target’s revenue.

Reference Period Adjustments

To ensure revenue reflects the business’s current state at the time of notification:

• divestments – revenue from businesses or assets disposed of during the reference period must be excluded;
• acquisitions – revenue from businesses acquired during the reference period must be that from the point in time at which the business was acquired; and
• consolidation – all calculations must eliminate intra-group transactions to avoid double-counting or the artificial inflation of revenue figures.

Serial Acquisitions and Aggregation

The “three-year look-back” rule requires the aggregation of revenue from businesses acquired by the acquirer group in the same industry as the target in Australia within the preceding 36 months (from the contract date of the transaction in question). However, specific exemptions apply to:

• Previously notified acquisitions – Acquisitions are exempt from aggregation if they were previously notified and cleared by the ACCC under the new mandatory regime, provided that such clearance was not granted solely under the serial acquisitions limb (ie, notification was premised on an acquisition triggering the serial acquisitions threshold). Clearances obtained under the ACCC’s legacy informal merger regime and Notification Waivers must also be accumulated.
• De minimis targets – Entities that have annual Australian revenue
• No local nexus – Targets that do not carry on business in Australia.
• Lapsed control – Entities where the acquirer has never obtained control, has since divested the interest, or is legally precluded from exercising governance.

Foreign-to-foreign transactions are subject to Australian merger control if they meet the thresholds and possess the requisite local nexus. The target must be “connected with Australia”, meaning it is incorporated in Australia, its Australian revenue/assets trigger the specific target-revenue or transaction-value limbs of the tests, or it carries on a business in Australia. Determining whether a business is “carried on” in Australia requires a holistic, fact-specific assessment of the degree of commercial activity within the jurisdiction. For share transactions, the target entity itself must be engaged in Australian commerce, whereas for asset-based deals, the specific assets must be utilised in or integrated into a business operating locally.

Australia does not utilise a market share-based jurisdictional threshold. The regime relies entirely on objective financial and voting-power metrics to provide certainty for transaction planning. Market shares are nevertheless relevant for determining the most appropriate notification pathway and form of application.

Under the 2026 mandatory regime, Australia does not expressly rely on the European “full-function” versus “non-full-function” distinction to determine jurisdiction for a merger filing for a joint venture (JV). Instead, mandatory notification depends entirely on whether the formation or alteration of the JV involves an acquisition of shares, assets, or control that satisfies the statutory thresholds.

Jurisdictional Assessment: Incorporated Versus Unincorporated

Incorporated JVs (share acquisitions)

The creation of, or entry into, a corporate JV vehicle is assessed as an acquisition of shares. If a JV partner acquires practical control (under section 50AA of the Corporation Act 2010 (Cth)) or crosses the new quantitative voting power thresholds (eg, >20% or ≥50%), the transaction is notifiable if financial thresholds are met. Under the 2026 “connected entity” rules, a JV partner’s broader corporate group revenue is aggregated into the threshold test. This means the formation of a brand-new, zero-revenue JV can trigger a mandatory filing if the parent companies are large. 

Unincorporated JVs (asset acquisitions)

Unincorporated JVs (UJVs) need to be considered as potential asset acquisitions. Because the 2026 regime utilises a broad definition of “assets” (capturing legal and equitable rights, land and IP), contributing assets to a JV, or acquiring a participating interest in a UJV’s asset pool, can trigger a mandatory filing if the “discrete asset” transaction value thresholds are met. If the formation of a UJV involves the transfer of property, pooling of physical assets or the granting of specific legal rights (such as IP licences) then a threshold assessment should be undertaken. If a UJV is strictly a contractual arrangement involving no transfer of property, no acquisition of legal or equitable rights and no structural integration of assets, it will fall outside the mandatory merger notification regime but will remain subject to the general restrictive trade practices provisions of the CCA.

Substantive Assessment: Fully Functional Versus Non-Fully Functional

While functionality does not dictate whether a business must file, it will affect how the ACCC reviews the competitive risk during the clearance process.

Fully functional JVs

If the JV operates as an autonomous economic entity on a lasting basis (acting independently of its parents), the ACCC assesses it primarily under the traditional section 50 merger test. The focus is structural and will examine whether the removal of the parents as independent competitors, or the creation of the new JV entity, will substantially lessen competition.

Non-fully functional JVs

If the JV is not a standalone business, such as a pure R&D syndicate, a joint purchasing vehicle, or a cost-sharing production JV that passes all output back to the parents to sell independently, the ACCC may view the arrangement as highly susceptible to behavioural co-ordination. While the initial formation of the JV might trigger a mandatory merger filing via the asset or share thresholds, the ACCC will also scrutinise the underlying JV agreements for “spill-over” effects and assess whether the information sharing and operational collaboration required by the non-functional JV breaches Australia’s strict prohibitions against cartel conduct or anti-competitive agreements under Part IV of the CCA.

While below-threshold transactions are not legally required to be notified, they remain fully subject to the overarching prohibition in section 50 of the CCA against acquisitions that substantially lessen competition.

The ACCC retains a “call-in” power and actively monitors unnotified transactions and, if it identifies a potential substantial lessening of competition (SLC), it can seek an immediate injunction in the Federal Court to prevent closing. If the ACCC discovers a completed, unnotified transaction, its enforcement timeline is governed by two distinct statutory limitation periods, alongside a severe indefinite commercial risk:

• Civil pecuniary penalties (six years) – To pursue financial penalties, the ACCC has six years from the date the contravention occurred (ie, the date the unnotified transaction was put into effect) to commence civil proceedings in the Federal Court.
• Divestiture orders (three years) – If the ACCC determines the unnotified transaction substantially lessens competition and seeks to structurally unwind it, it has three years from the date of completion to apply to the Federal Court for a mandatory divestiture order, which forces the acquirer to dispose of the illegally acquired shares or assets.

As such, parties executing high-risk, below-threshold deals (particularly in concentrated markets) often still choose to notify voluntarily to obtain legal certainty.

Under the legislation, any notifiable acquisition completed without clearance is statutorily void by operation of law. This means the legal title to the acquired shares or assets is considered to have never validly transferred. Because this invalidity is automatic, it does not technically “expire”. Even if the ACCC’s six-year window to issue a fine lapses, the transaction remains legally defective. This exposes the merged entity to indefinite commercial risks.

For any transaction meeting the thresholds, implementation is strictly suspended. The transaction cannot be “put into effect” (legal title cannot transfer, and operational control cannot be assumed) until the ACCC grants formal clearance, or the statutory waiting period expires without ACCC intervention. Consequently, M&A transaction documents must now be drafted with robust suspensive conditions and clearly calibrated drop-dead dates.

As noted in 2.2 Failure to Notify, completing a notifiable transaction prior to clearance automatically voids the transaction under Australian law and exposes the corporate groups to significant civil penalties. Even in global, foreign-to-foreign transactions, ignoring the Australian suspensory obligation will invite severe enforcement action and immediate demands for structural unwinding. Given the regime is newly operational in 2026, the ACCC is highly motivated to demonstrate enforcement rigour and is expected to pursue immediate and public enforcement actions against any early gun-jumping violations.       

There are no general statutory exceptions to the suspensory effect for standard M&A, private equity buyouts, or public bids.

However, the Notification Waiver effectively acts as a fast-track exemption mechanism. Parties can apply for a waiver for clearly benign deals (eg, combined market shares <5%, no nascent competition issues). The ACCC is statutorily required to determine a waiver within 25 business days, but early 2026 data indicates the ACCC is averaging a decision in approximately 11–12 business days. Once a waiver is granted, the suspensory obligation is extinguished.

In genuine “failing firm” scenarios, the ACCC will typically expedite its Phase 1 review, but the strict prohibition on closing remains until that expedited clearance is formally issued.

The ACCC is sceptical of global closing carve-outs (hold-separate or “ring-fencing” arrangements) designed to permit global closing before Australian clearance. The legislation prohibits the transaction from being “put into effect”. Unless the global transaction mechanics are structured so that the transfer of the Australian-connected entity or assets is legally severed, entirely delayed, and strictly conditional on local clearance, global closing risks exposure to severe gun-jumping penalties. It is recommended that parties engage with the ACCC early if contemplating such structures.

There is no statutory deadline to file a notification after signing an agreement. However, because the regime is suspensory, parties will typically file as early as possible. Notification must occur, and clearance must be received, prior to closing.

A legally binding agreement is not a statutory requirement to notify. Parties can file on the basis of a good-faith intention to proceed, evidenced by a mature memorandum of understanding, a signed letter of intent, or a well-advanced draft term sheet. The ACCC requires sufficient certainty regarding the transaction’s perimeter and structural parameters to conduct a definitive market assessment. If the commercial terms evolve materially between the lodged term sheet upon which the filing was based and the final executed agreement, the ACCC can declare the original notification as “materially incomplete” or inaccurate.

Public takeovers can be formally notified based on a public announcement rather than a definitive agreement, provided the offer includes strict regulatory conditions that prevent the legal transfer of shares prior to ACCC clearance. To manage hostile bids, acquirers can either utilise a specialised confidential waiver process for “surprise” takeovers before they are announced or file publicly using available public data, which may prompt the ACCC to compel the target to produce the required confidential material. These procedures have attracted criticism for being subject to various practical limitations and creating significant strategic challenges for bidders.

Filing fees are significant and increase with the complexity and value of a transaction. Under the 2025 Determination, the fee for an early Notification Waiver is AUD8,300. A standard Phase 1 notification costs AUD56,800.

If a matter proceeds to Phase 2, substantial additional fees apply based on transaction value:

• value ≤AUD50 million = AUD475,000;
• value >AUD50 million to AUD1 billion = AUD 855,000; and
• value >AUD 1 billion = AUD1,595,000.

Fees must be paid upfront upon lodgement of the relevant phase for the notification to be deemed valid. Exemptions exist for defined “small business entities”, which have revenues of

The obligation to notify rests with the “principal party”, which is the acquirer. However, target co-operation is practically essential, given the extensive information requirements.

Pathway Criteria and Documentation

Under the Competition and Consumer (Notification of Acquisitions) Determination 2025, the information burden on merging parties is rigidly dictated by the specific filing pathway utilised.

The Notification Waiver (for low-risk transactions)

• Criteria for use: Strictly reserved for transactions that trigger the financial thresholds but “clearly do not raise any plausible competition risk” (eg, zero or negligible horizontal overlaps, no vertical relationships, and no adjacent market interactions in Australia).
• Information requirements are intentionally streamlined and include basic information such as a description of the parties, rationale, main industries, market definition and relevant transaction documents. The Notification Waiver requires only 12 months of Australian revenue data and high-level market share estimates based solely on revenue. Parties are exempt from supplying internal board documents, audited financial accounts, or third-party contact lists for market testing.

The Short Form notification (the standard pathway)

• Criteria for use: The default requirement for standard, non-complex transactions that require a formal Phase 1 clearance but do not cross the ACCC’s structural “complexity” market share thresholds.
• Information requirements are material and include three years of historical revenue data and acquisition activity, market share estimates (including, to the extent relevant, revenue, volume and capacity), executed (or near-final) transaction documents, detailed structure charts, audited financials, and comprehensive contact lists for top competitors, suppliers and customers.

The Long Form notification (for complex transactions)

• Criteria for use: The Long Form is strictly required for transactions presenting significant structural overlaps or complex market dynamics. According to the ACCC’s formal guidance, parties are generally expected to use the Long Form if they trigger any of the following market share thresholds.
1. Horizontal mergers: The combined post-acquisition market share is ≥40% (with a market share increment of ≥2%), or ≥20% (with an increment of ≥5%).
2. Vertical mergers: One party has an estimated market share of ≥30% in the upstream market and the other party has an estimated market share of ≥30% in the downstream market.
3. Conglomerate mergers: The parties supply adjacent products or services, and at least one party has an estimated market share of ≥30% in its respective market.
4. Qualitative triggers: Even if numerical market shares are below these thresholds, the Long Form is expected if the target is deemed a “vigorous and effective competitor” (a maverick), or is developing a significant product, input, or user base in a market where the parties potentially overlap.
• Information requirements are significant and include everything required for the Short Form notification, plus details on non-controlling shareholdings, the sales process and bids, and mandatory production of a broad range of internal corporate documents. This includes two years’ worth of board papers, strategic presentations, valuation models, and detailed economic narratives explaining market dynamics and counterfactual scenarios.

The Public Benefit Application (the “Phase 3” pathway)

• Criteria for use: This pathway cannot be used for an initial filing. It is strictly reserved for transactions where the ACCC has already conducted a competitive assessment and either formally rejected the merger or approved it with unacceptable conditions. The legal test shifts: parties concede the competition issues and must instead prove that the “public benefit outweighs the public detriment”.
• Information requirements are distinct from the competition forms and include the following.
1. Public benefit narrative and evidence: Detailed, evidence-based descriptions of the nature, magnitude, and likelihood of the claimed benefits (eg, environmental sustainability, job creation, export growth, or cost efficiencies).
2. Transaction specificity: Parties must provide economic or factual evidence proving that these benefits are strictly “transaction-specific” and would not arise without the merger.
3. Beneficiary data: Concrete estimates of the number and identity of the beneficiaries, proving how the benefit will be shared with the broader Australian community (and not merely retained by shareholders).
4. Expanded peripheral documents: Alongside the final Share Purchase Agreement, parties must submit all related peripheral agreements (eg, non-competes, master service agreements, IP licensing, and leases) to allow the ACCC to assess the full structural reality of the newly proposed entity.

Administrative Formalities for Filing

Notarisation not typically required

Unlike many jurisdictions, the ACCC does not require formal notarisation or apostillation of transaction documents, corporate charts, or the notification form itself. The notification must include a formal declaration signed by an authorised officer or director of the notifying party. This declaration legally attests to the truth, accuracy, and completeness of the filing. Providing false or misleading information carries severe civil pecuniary penalties and allows the ACCC to immediately revoke any clearance granted.

Powers of attorney (POAs) not required

A formal, notarised deed of power of attorney is not required if an external legal representative (such as a law firm) is lodging the notification via the ACCC’s online portal on behalf of the acquiring or target entity. Instead, the notification forms require the explicit identification of the legal representative and their contact details.

Translation requirements

The ACCC conducts its reviews exclusively in English. The ACCC’s guidelines mandate that all foreign-language documents must be accompanied by a certified English translation. Failure to provide complete English translations at the time of lodgement will result in the ACCC declaring the notification “materially incomplete”.

If a notification is incomplete, the ACCC will reject it, and the statutory clock will not commence. If a notifying party supplies inaccurate or misleading information, they face severe civil penalties under the CCA and potential criminal prosecution under the Criminal Code Act 1995 (Cth). The ACCC also possesses the statutory power to revoke any clearance that was granted on the basis of materially false or misleading information, rendering the completed transaction void retroactively.

The ACCC’s administrative review is strictly time-bound:

• Waiver Notification – The ACCC has up to 25 business days to assess the application (but early 2026 data indicates the ACCC is averaging a decision in just 11–12 business days).
• Phase 1 – All formal notifications begin in Phase 1. The statutory review period is 30 business days. The ACCC cannot legally clear a transaction before business day 15 (to allow for mandatory third-party market consultation). If the ACCC identifies no significant issues, it will clear the transaction before the 30-day clock expires. If the ACCC determines that the acquisition could have the likely effect of substantially lessening competition, it will not issue a formal notice of concerns in this phase; instead, it may clear the transaction with remedies or officially transition the review into Phase 2. 
• Phase 2 – This is an in-depth review period lasting up to an additional 90 business days. It is only during this second phase that the ACCC issues a formal Notice of Competition Concerns (NOCC). The ACCC is statutorily required to issue the NOCC to the notifying parties by business day 25 of Phase 2. The NOCC outlines the ACCC’s preliminary legal and economic assessment of why the deal is anti-competitive. The parties have until business day 50 of Phase 2 to formally respond to the NOCC, and until business day 60 to offer formal remedies (such as divestiture undertakings) to cure the identified concerns.  The ACCC can disallow the transaction or approve with or without remedies.
• Phase 3 Public Benefit Phase – If an optional public benefit application is made within 21 calendar days of a Phase 2 determination, the ACCC has up to 50 additional business days to disallow or approve the transaction with or without remedies.

Overall timelines can be extended by mutual agreement or suspended via statutory “stop the clock” mechanisms if the parties fail to answer formal information requests promptly.

The legislation imposes a strict 14 calendar-day hold period during which the parties are legally prohibited from putting the transaction into effect, which commences on the date the ACCC publishes its formal reasons for the decision on the public Acquisitions Register. 

Pre-notification engagement is highly encouraged, particularly for complex transactions. These discussions are confidential and are vital for agreeing on the scope of required data and narrowing the plausible market definitions before formally starting the statutory review timeline.

Requests for information (RFIs) are frequent and can be extensive, particularly in Phase 2. The ACCC routinely deploys its compulsory information-gathering powers (Section 155 notices) to request vast tranches of internal emails, data sets, and executive examinations. Such requests can be issued to the transaction parties and other market participants. Formal statutory RFIs automatically “stop the clock”, suspending the review timeline until the ACCC determines the merger parties have fully complied with the request.

The regime’s primary accelerated track is the Notification Waiver. Designed specifically for simple transactions lacking horizontal overlaps or vertical concerns, it is a fast, low-cost (AUD8,300) application.

The core substantive test is whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition (SLC) in a relevant market in Australia.

As part of the legislative reforms that introduced Australia’s mandatory merger regime, the definition of SLC was expanded to include any transaction that “creates, strengthens or entrenches a position of substantial market power”. This significantly lowers the barrier for ACCC intervention, deliberately targeting dominant firms attempting to make incremental, consolidating acquisitions.

If a transaction fails the SLC test, the ACCC may alternatively clear it via the Phase 3 Public Benefit pathway if satisfied that the transaction generates a “net public benefit” that outweighs the anti-competitive detriment.

The ACCC maps affected markets by analysing horizontal overlaps, vertical supply chain integration, and conglomerate relationships. While there is no definitive statutory de minimis safe harbour that guarantees clearance, the ACCC’s Notification Waiver Guidelines indicate that combined shares below 5% in fragmented markets will rarely attract scrutiny.

The ACCC and the Australian Competition Tribunal primarily rely on domestic jurisprudence and decisional practice. However, they frequently draw upon analytical frameworks, market definition precedents, and economic theories of harm developed by the US Department of Justice (DOJ)/Federal Trade Commission (FTC), the European Commission, and the UK Competition and Markets Authority (CMA), particularly in rapidly evolving global digital, platform, and pharmaceutical markets.

The ACCC investigates traditional horizontal unilateral effects (such as the loss of direct rivalry), vertical foreclosure, and co-ordinated effects (facilitating collusion). The defining trend of 2026 is the ACCC’s aggressive scrutiny of “ecosystem” theories of harm and “killer acquisitions” with a particular focus on the elimination of potential or nascent competition. Furthermore, via the new look-back thresholds, the ACCC rigorously targets the aggregate, cumulative effect of “creeping” serial acquisitions by private equity roll-ups and large corporate groups. Beyond these, the ACCC is increasingly focused on portfolio effects, including how a merger might enable anti-competitive bundling or provide the merged entity with unfair access to commercially sensitive data of its rivals, further entrenching dominant market positions.

Procedurally, the mandatory regime enforces a strict separation: efficiencies are largely excluded from the initial SLC Determination review (Phase 1 and Phase 2) unless they are so significant that they enhance market rivalry. Private corporate synergies cannot be used to “offset” a loss of competition during this stage of the review. If a transaction is deemed anti-competitive, the parties may proceed to the Public Benefit Phase of the review process where the ACCC applies a “Net Public Benefit” test, weighing broader economic gains against the identified competitive harm. Standard operational efficiencies and other private benefits can only be raised during the Public Benefit Phase.

The ACCC is a pure competition and consumer regulator; it does not factor industrial policy, national security, or foreign subsidies into the SLC test. However, if parties seek clearance under the alternative “net public benefit” pathway, the ACCC can consider broader economic benefits, such as significant environmental sustainability gains, export promotion, or the preservation of regional employment. Foreign direct investment (FDI) and national security are strictly the purview of FIRB (see 9.1 Legislation and Filing Requirements).

See 2.10 Joint Ventures. The ACCC first assesses the structural impact of the JV on its specific market. Secondly, it examines the potential for the JV to facilitate illegal “spill-over” co-ordination between the parent entities in markets outside the JV’s scope. Any ancillary restraints restricting the parents from competing must be strictly necessary and proportionate to the JV’s legitimate functioning.

The 2026 regime fundamentally empowered the ACCC. It is no longer required to apply to the Federal Court to block a deal. If, at the end of Phase 2 (or the Public Benefit Phase), the ACCC is not satisfied that the transaction avoids an SLC (or lacks a net public benefit), it simply issues a formal administrative decision refusing clearance. This decision legally prevents the transaction from closing.

Parties can negotiate remedies (undertakings) throughout the review process subject to strict statutory deadlines. The ACCC has an overwhelming preference for structural remedies, specifically the divestiture of overlapping business units. Behavioural remedies (eg, access regimes, price caps, information barriers) are actively discouraged and are only accepted in circumstances where structural remedies are not feasible and the behavioural commitments require minimal ongoing regulatory monitoring. Under the primary SLC review, the ACCC strictly confines remedies to curing competition concerns. If parties apply for clearance under the Public Benefit pathway, the ACCC may accept remedies to guarantee broader non-competition economic benefits.

Remedies must completely and permanently alleviate the identified competition concerns to ensure that a transaction no longer substantially lessens competition in any relevant market. The legal standard is absolute: the remedy must restore or maintain the competitive dynamic that would otherwise be lost. The ACCC will not accept remedies that merely mitigate harm or introduce complex, fragile regulatory structures into the affected market(s).

Under the 2026 mandatory administrative regime, the procedural and legal mechanics of remedies have fundamentally shifted.

Timing of Negotiations and Strict Deadlines

Discussions regarding remedies can begin during the confidential pre-notification phase. However, if formal concerns arise during the review, the legislation imposes strict statutory deadlines for the merging parties to formally propose remedies:

• no later than 20 business days after commencement of a Phase 1 review;
• no later than 60 business days after commencement of a Phase 2 review; and
• no later than 35 business days following the lodgement of a Public Benefit application.

If a proposal is submitted within these timeframes, it typically triggers an automatic “clock stop” to allow the ACCC to market-test the remedy with third parties. If not lodged within these timeframes, the ACCC is not obliged to consider the proposal.

The Power to Propose and Impose Conditions

A defining feature of the new 2026 regime is the shift in administrative power. The ACCC is no longer restricted to merely accepting or rejecting “undertakings” voluntarily offered by the parties. During the review, the ACCC can propose remedies on its own motion if it believes a specific structural fix is required to cure an SLC. The ACCC now holds the unilateral statutory power to grant a clearance subject to conditions. This means the ACCC can effectively impose remedies that were not entirely agreed to by the parties.

Parties’ Recourse to Imposed Conditions

If the ACCC issues a clearance subject to conditions (eg, a highly burdensome divestiture) that the merging parties find commercially unacceptable, the parties are not forced to complete the deal. They have two primary options, to:

• abandon the transaction, in which case, the clearance simply lapses; or
• appeal, in which case, the parties can apply to the Tribunal for a merits review of the ACCC’s decision.

The Tribunal, standing in the shoes of the decision-maker, also holds the power to impose conditions. It can affirm the ACCC’s imposed conditions, vary them to be more or less restrictive, or substitute its own clearance conditions entirely.

For transactions with clear and substantive competitive overlaps, deal teams will often initiate remedy discussions during the confidential pre-notification phase. Once the formal review begins, remedy proposals are subject to the statutory deadlines identified in 5.4 Negotiating Remedies With Authorities.

In 2026, the ACCC’s standard practice is to require an “upfront buyer” for any divestiture. The ACCC must approve the specific buyer, ensuring they possess the financial capacity, expertise and intent to be a vigorous competitor, before it grants clearance for the main transaction. If the ACCC permits divestiture post-completion, it imposes strict, confidential timelines (typically 3–6 months), overseen by an ACCC-approved independent divestiture manager.

Non-compliance with an accepted divestiture or behavioural undertaking exposes the relevant party to significant enforcement action and civil penalties as well as the possibility of the ACCC seeking court orders to unwind the transaction.

The ACCC issues formal, written administrative decisions. In the pursuit of transparency, both clearance and prohibition decisions, alongside a detailed statement of reasons, are published on the public Acquisitions Register. The ACCC works carefully with the merging parties to redact genuine business secrets and confidential commercial data prior to publication.

Since the mandatory regime only commenced on 1 January 2026, and Phase 2 reviews statutorily take 90 business days (plus “clock stops” for remedy negotiations), there has not yet been a high volume of completed remedy determinations. However, a number of complex cross-border and domestic transactions have been referred to Phase 2 reviews to resolve competition issues (with parties proposing remedies in some instances). If a foreign-to-foreign transaction triggers Australia’s notification thresholds and presents local competitive overlaps giving rise to competition concerns, the ACCC will routinely seek structural remedies and will not typically accept vague global commitments to resolve local issues post-completion.

An ACCC clearance decision generally encompasses standard ancillary restraints directly related to the transaction (eg, standard, reasonably tailored non-compete clauses on a seller to protect the acquired goodwill). However, the ACCC actively scrutinises these restraints. If it determines a non-compete is excessively broad in duration or geographic scope, it will declare it unnecessary, exposing the parties to prosecution under the CCA’s cartel and anti-competitive agreement provisions if they proceed with it. Highly unusual or restrictive ancillary arrangements should be flagged early in pre-notification.

Crucially, a merger clearance does not grant automatic immunity from the CCA’s cartel prohibitions. If an ancillary restraint is found to be “severable” and not strictly necessary for the protection of the acquired goodwill, it remains subject to independent enforcement. To manage this, parties with highly restrictive or non-standard restraints should consider seeking concurrent authorisation to ensure the entire deal structure is immune from future prosecution.

Third parties (competitors, customers, suppliers) are highly influential in the Australian merger review process. The ACCC actively solicits their views during the investigative and consultation phases, including in respect of remedies proposed by the merger parties. Commercial evidence from third parties regarding market dynamics often informs the ACCC’s SLC assessment. If the ACCC grants clearance, any third party with sufficient standing has a statutory right to appeal the ACCC’s decision to the Tribunal for a limited merits review.

The ACCC actively contacts third parties during the investigative phases of its review (with experience suggesting that this can also occur before a review formally commences). This ranges from informal telephone interviews to extensive written questionnaires. In complex Phase 2 reviews, the ACCC frequently utilises its compulsory powers to force third parties to produce internal data and testify under oath. Furthermore, any remedy proposed by the merging parties is strictly “market tested” with these third parties to verify its viability.

The 2026 regime prioritises transparency. Upon formal lodgement, the fact of the notification and a high-level summary of the transaction are published on the Acquisitions Register (unless strict exceptions for highly sensitive hostile takeovers apply). Information regarding Notification Waivers will not be published until after the ACCC has issued a decision. The ACCC is legally obliged to protect submitted commercial-in-confidence information, ensuring that business secrets, granular pricing data, and strategic plans remain strictly confidential and shielded from competitors. Information over which confidentiality claims are made should be clearly identified and justified in the notification.

The ACCC is deeply integrated into the global antitrust community and co-ordinates closely with the US DOJ/FTC, the European Commission, the UK CMA, and the New Zealand Commerce Commission (NZCC) on cross-border transactions. To facilitate specific, detailed discussions about a transaction’s competitive overlaps or global remedy packages, the ACCC requires the merging parties to provide explicit confidentiality waivers. Providing these waivers is standard practice to align global review timelines.

Parties dissatisfied with an ACCC administrative decision (eg, a prohibition, a rejection of proposed remedies or the imposition, scope or nature of any conditions imposed by the ACCC) can appeal to the Australian Competition Tribunal. This is a limited “merits review” where the Tribunal re-evaluates the economic facts and the law that forms part of the evidentiary record established during the ACCC’s investigation (with limited discretion to admit new material such as updated economic modelling or expert reports). The Tribunal can affirm, set aside the ACCC’s decisions and substitute with its own unconditional clearance, vary the conditions imposed or refer the matter back to the ACCC for reconsideration with directions.

The Federal Court of Australia’s jurisdiction is now strictly limited to judicial review to assess whether the Tribunal has made a fundamental error of law or breached procedural fairness, rather than re-litigating the commercial merits of a transaction.

An application for Tribunal review must be lodged within 14 calendar days after the ACCC publishes its formal statement of reasons on the public Acquisitions Register. Tribunal merits reviews are expedited by statute and must generally be completed within 90 calendar days, though complex matters involving vast economic evidence may see extensions. As the administrative decision-making regime only commenced on 1 January 2026, there is limited precedent regarding appeals under the new framework, though the Tribunal has historically shown a willingness to overturn the ACCC on complex economic definitions.

Under the 2026 mandatory regime, third parties have a direct statutory right to appeal an ACCC clearance decision on its merits to the Tribunal. To lodge an appeal, a third party (eg, a competitor, supplier, customer or industry association) must demonstrate that they have sufficient interest or standing in the matter. The Tribunal will assess whether a third party’s commercial interests or the broader competitive dynamics of their market are materially impacted by the ACCC’s decision to clear a transaction.

Australia operates a stringent, separate FDI regime under the Foreign Acquisitions and Takeovers Act 1975 (FATA). Foreign persons must generally notify FIRB and receive a “no objection” notification before acquiring substantial interests in Australian entities (often triggered at 20%), agricultural land, or sensitive national security businesses. FIRB assesses transactions against a broad “national interest” test, encompassing national security, taxation compliance, and the character of the investor.

While the ACCC and FIRB regimes operate under separate statutory frameworks, their practical interaction was restructured on 1 January 2026 to streamline the “competition limb” of FIRB’s national interest test. While the Treasury delegates the substantive competition assessment to the ACCC, the Foreign Investment Portal was concurrently upgraded (in late 2025) to include an increased scope of mandatory competition questions in the initial FIRB application to serve a specific triage function.

The FIRB application now mandates that foreign investors declare whether the transaction will be formally notified to the ACCC (or if a waiver is being sought). If so, FIRB relies on the ACCC’s assessment, and the newly expanded FIRB questions act merely to establish the parallel processing timeline. If a foreign investor indicates the deal falls below the ACCC’s mandatory thresholds and will not be notified, the expanded FIRB application requires the investor to disclose specific data on horizontal overlaps, target market operations, and major Australian customers. The Treasury uses these new data points to determine if a sub-threshold transaction raises sufficient competition concerns (such as creeping acquisitions or local market entrenchment) to warrant a discretionary referral to the ACCC.

FIRB will generally issue a statutory “Suspension Notice”, pausing its own clock until the ACCC has issued its final administrative clearance. FIRB will not issue a final “no objection” notification until the ACCC process is fully resolved. To avoid unexpected inter-agency referrals late in the deal timetable, foreign investors increasingly utilise the ACCC’s “Notification Waiver” process to proactively secure ACCC sign-off and clear the competition limb for FIRB. Deal teams must align their regulatory conditionality provisions, suspensory timelines, and information disclosures across both agencies from day one.