Background

Since 1 July 2025, the new merger notification regime can be used on a voluntary basis, and it will become mandatory on 1 January 2026. On 30 June 2025, the Treasury’s Instrument determining the notification thresholds, notification forms and filing fees was registered, and the ACCC released interim Merger Process Guidelines. 

The ‘state of play’ of the new mandatory notification regime is outlined below.

Notifications in the transitional period

The ACCC has provided the following guidance for notifying an acquisition which meets any of the notification thresholds in the transitional period until the new regime becomes mandatory:

1. Acquisitions that receive informal clearance from the ACCC under the current voluntary regime between 1 July and 31 December 2025 will not be subject to the new regime provided they are completed within 12 months of receiving ACCC clearance.
2. Any other acquisition which will not be put into effect before 1 January 2026 will be subject to the new regime and will need to be notified to, and require approval of, the ACCC if any of the notification thresholds is met.
3. Any acquisition for which informal clearance has been sought in 2025 but not granted by the ACCC by 31 December 2025 will need to be re-notified under the new regime in 2026 if any of the notification thresholds is met. 

The ACCC has put parties on notice that informal clearance applications received after early October 2025 will be at risk of not being considered in time for the 31 December 2025 deadline. To minimise the risk of this occurring, parties should seek informal clearance from the ACCC well before early October or, if this is not achievable, notify their acquisition under the new regime instead.

Notification thresholds

An acquisition of shares or assets is notifiable if one of the following thresholds is met:

Threshold 1

1. The combined Australian turnover of the acquirer group and the target group is ≥$200 million; and
2. either the Australian turnover of the target group is ≥$50 million or the global transaction value is ≥$250 million. 

Threshold 2

1. The acquirer group’s Australian turnover is ≥$500 million; and
2. the Australian turnover of the target group is ≥$10 million.

Threshold 3 – “serial acquisitions”

1. Both of the above thresholds apply, but when determining whether the target group has an Australian turnover exceeding $50 million (threshold 1) or $10 million (threshold 2), one needs to add up the Australian turnover of all target groups acquired by the acquirer group within the previous 3 years and which carry on a business that predominantly involves the supply or acquisition of the same, substitutable or competitive goods or services (disregarding any geographic factors or limitations).
2. Acquisitions of a target group with ≤$2 million Australian turnover are excluded from the application of the serial acquisitions thresholds.

As an additional requirement, the target will need to have a “material connection” to Australia. This is a low threshold and will be satisfied if the target is carrying on a business in Australia.

Calculating Australian turnover

The Australian turnover is:

1. For a corporate entity – the entity’s gross revenue, determined in accordance with accounting standards, for the entity’s most recently ended 12-month financial reporting period, that is attributable to transactions or assets within Australia or transactions into Australia.
2. For assets – the Australian turnover attributable to the asset or, to the extent that it is not reasonably practicable to attribute Australian turnover to an asset, 20% of the market value of the asset.

Determining “group” turnover

To determine the “group” turnover of the acquirer and the target, the turnover of all “connected entities” need to be consolidated. This includes all entities that:

1. control the acquirer/target (‘parent company’);
2. are controlled by the acquirer/target (‘subsidiaries’); and
3. have the same parent company as the acquirer/target (‘sister company’). 

Importantly, the concept of “control” includes both:

1. Related bodies corporate – control over the composition of the board of directors, the ability to cast or control the casting of more than 50% of the votes at a General Meeting or holding more than 50% of the share capital (section 4A of the Competition and Consumer Act 2010, “CCA”); and
2. Controlled entities – the capacity, de jure or de facto, and either alone or with one or more ‘associates’, to determine the outcome of decisions about an entity’s financial and operating policies (section 50AA of the Corporations Act 2001, “CA”). The inclusion of entities whose financial and operating policies can be determined jointly with one or more associates is potentially problematic as the definition of ‘associate’ is broad and may require the inclusion of revenue which would ordinarily not be part of an entity’s consolidated group turnover for reporting purposes. 

Acquisitions of minority shareholdings

An acquisition of shares in an unlisted company is not required to be notified if it does not result in the acquirer gaining the capacity to determine the outcome of decisions about the target’s financial and operating policies within the meaning of section 50AA of the CA (see above). Importantly, it is sufficient that the acquirer has this capacity jointly with another person.

An acquisition of an interest of less than 20% in a listed company, an unlisted company with more than 50 members or a listed managed investment scheme is also not required to be notified.

Notification waivers

The ACCC has provided some initial guidance about notification waiver applications in its interim Merger Process Guidelines:

1. Notification waiver applications can be made from 1 January 2026 (and further detail about the process will be provided before that date).
2. Notification waiver applications will be made public on the ACCC’s Acquisitions Register.
3. The ACCC expects that it will make a notification waiver determination in the vast majority of cases within 20 business days.
4. In determining a notification waiver application, the ACCC will consider the likelihood that an acquisition is notifiable and/or would have the effect or likely effect of substantially lessening competition.

In other words, the ACCC will only consider granting a notification waiver if an acquisition is either unlikely to be notifiable or raise any competition concerns (because, for example, there are no competitive overlaps between the parties’ operations in Australia).

Pre-lodgement engagement

The ACCC encourages parties to engage with it prior to lodging a notification to identify and discuss areas of focus and the information and market data which will be most relevant for the ACCC’s assessment. This will assist the ACCC in assessing a notification efficiently and reduce the risk of the ACCC declaring a notification incomplete and/or suspending the review timeline by requesting additional information from the parties.

The pre-lodgement engagement will generally be a confidential process, and parties are expected to initiate the engagement at least 2 weeks prior to the expected notification date. However, the ACCC encourages parties to engage with it “much earlier” where an acquisition:

1. involves concentrated markets or the removal of a vigorous and effective competitor;
2. involves complex commercial arrangements;
3. is part of a global transaction subject to reviews by overseas antitrust regulators; or
4. raises competition concerns which may need to be addressed through a commitment (such as a divestiture).

How long a pre-lodgement engagement may take will depend on the complexity of the case. In simple cases, it may be sufficient to provide basic information about the proposal and inform the ACCC about the expected time for lodgement. In more complex cases, it may be “more useful” to start the engagement after a draft notification form has been provided to the ACCC.

Review process

The statutory review periods will start once the ACCC has confirmed the effective notification date after having received a complete notification. The review process consists of the following steps:

1. Phase 1 competition review: The statutory period for the initial review is 30 business days, but the ACCC expects to grant a “fast-tracked” approval for around 80% of all notified acquisitions within 20 business days.
2. Phase 2 competition review: If the ACCC determines that it will need to conduct an in-depth review, the statutory period for the “phase 2” review will be 90 business days. The ACCC will then either determine that the acquisition can be put into effect (with or without conditions) or must not be put into effect.
3. Substantial public benefit application: If the parties make a substantial public benefit application within 21 days of the ACCC’s determination to oppose an acquisition, the statutory period for the public benefit assessment will be 50 business days. The ACCC will then again, either determine that the acquisition can be put into effect (with or without conditions) or must not be put into effect.

The above statutory timeframes will be extended by 15 business days if a merger remedy is offered to allay or remove competition concerns. 

Notification forms

There are two notification forms: 

• a “short” form for straight-forward acquisitions that are unlikely to raise competition concerns; and
• a “long” form for acquisitions that may raise competition concerns or have greater complexity. 

The difference between the notification forms is substantial. The long form requests parties to produce potentially large volumes of documents including board papers and market studies relevant to the acquisition which were prepared in the 2-year period prior to the transaction.

The ACCC has provided guidance on the use of the long notification form, according to which the long form should generally be used for acquisitions where:

1. Horizontal acquisitions – the parties’ estimated combined market share is:
   1. ≥40% and the increment resulting from the acquisition is ≥2%; or
   2. between 20% and 40% and the increment resulting from the acquisition is ≥5%.
2. Vertical acquisitions – the party in the upstream market has an estimated market share of ≥30% and the other party has a downstream market share of ≥30%.
3. Conglomerate acquisitions – the parties supply “adjacent” products or services (= products or services that are not in the same market / supply chain, but are related because, for example, they target similar customers or may be purchased or supplied together) and one of the parties has an estimated market share of ≥30%.
4. Other acquisitions – It may also be “appropriate” to use the long notification form for acquisitions that involve:
   1. a vigorous and effective competitor; or
   2. a firm that develops a significant product in a market where both parties supply or potentially supply products.

Acquisitions Register

Details of every notification and the ACCC’s determinations and review milestones in respect of each notified acquisition will be made public on the Acquisitions Register on the ACCC website, which has gone live on 1 July 2025.

Filing fees

The Treasurer determined the amount of the filing fees as follows:  

Exemptions

There are exemptions from the notification requirement for specific classes of acquisitions, including certain types of land acquisitions, certain types of financial and securities transactions and acquisitions that occur by operation of law. All exemptions are set out in Part 2 – Division 2 of the Competition and Consumer (Notification of Acquisitions) Determination 2025.

Conclusion

The new notification regime means that many more acquisitions will need to be notified to the ACCC, and it provides the ACCC with increased merger clearance powers. Dealmakers who might have otherwise taken a bullish position on pursuing transactions in Australia must now be conscious of the parameters that the new approval process presents and respect the waiting periods imposed by the mandatory nature of the regime.

Acquirers conducting due diligence on the target’s business or engaging in pre-closing integration planning need to be extra careful not to take any steps which might contravene the “gun jumping” prohibition of the new regime. 

Next Steps

If your organisation is currently considering an acquisition or has any medium to long term acquisition strategies, we encourage you to speak with us to ensure that any necessary merger filing processes are managed in an optimal way.