Background

With the new merger notification regime about to go live on 1 January 2026, the Treasurer made important amendments to its Notification of Acquisitions Determination (Determination) on 18 December 2025. 

In this update, we summarise the key changes which will have a significant impact on the notification requirements for certain types of acquisitions.

New notification thresholds for asset acquisitions

The notification thresholds which will apply to asset acquisitions depend on whether or not the asset acquisition is “of all or substantially all of the assets of a business”:

If the asset acquisition involves all or substantially all of the assets of a business, the same Australian turnover thresholds as for share acquisitions apply (see table below), and the target’s Australian turnover attributable to that business is relevant when determining whether any of the Australian turnover thresholds is met.

Where the acquisition involves a ‘discrete’ asset (which does not represent all or substantially all of the assets of a business), the following transaction value thresholds apply:

• Acquisitions between 1 January – 31 March 2026: a transaction value of $250M or more (calculated as the greater of the market value or consideration received or receivable).
• Acquisitions on or after 1 April 2026:
  • If the acquirer group has an Australian turnover ≥ $200M, a transaction value of $200M or more; and
  • If acquirer group has an Australian turnover ≥ $500M, a transaction value of $50M or more.

Carve-out for rights that protect minority shareholders

When determining the Australian ‘group’ turnover of the acquirer and the target, the Australian turnover of all entities that are ‘connected’ with the acquirer and the target needs to be aggregated. 

The definition of “connected entities” is very wide and includes: 

• Related entities – i.e. entities that (i) control the composition of the board of directors of another entity; (ii) are in a position to cast, or control the casting of, more than 50% of the maximum votes that might be cast at the general meeting of another entity; and (iii) hold more that 50% of the allotted share capital of another entity; and
• Controlled entities – i.e. entities that (i) control, either alone or with one or more associates, another entity; (ii) are controlled, either alone or with one or more associates, by another entity; and (iii) two entities that are both controlled by the same other entity. 

“Control” is defined (widely) as the capacity to determine the outcome of decisions about an entity’s financial and operating policies, and in determining whether such a capacity exists, the practical influence an entity can exert over another entity is determinative (i.e. not only control based on legal rights such as veto rights, but also ‘de facto’ control).

The term “associate” is also defined broadly to include (i) controlled entities and entities under common control; (ii) persons with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body’s board or the conduct of the designated body’s affairs; and (iii) a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body’s affairs.

The Determination now prescribes that an entity cannot be considered to be an ‘associate’ of another entity for the sole reason that it has been provided with ‘minority shareholder protection’ rights, which are defined to include rights that are consistent with the rights normally accorded to minority shareholders to protect their financial interests as investors and which are reasonably appropriate and adapted to achieving this purpose.

New notification requirements for non-controlling interests

Under Division 1 of Part IVA of the Competition and Consumer Act 2010 (Act), acquisitions of a non-controlling minority shareholding are not notifiable. However, the Treasurer has the power to determine that certain classes of acquisitions are required to be notified even where there is no notification requirement under the Act, and the Treasurer has done so in relation to the following classes of acquisitions:

• Acquisitions of shares in an unlisted body corporate that is not widely held if it results in voting power of ≤20% increasing to ≥20%;
• Acquisitions of shares in any body corporate if it results in voting power between 20% - 50% increasing to 50% or more; and
• Acquisitions of shares in a Chapter 6 entity (e.g., Australian listed company or unlisted company with over 50 members) if:
  • where the acquirer already has control - it results in voting power of ≤20% increasing to ≥20%; or
  • where the acquirer does not have control before or after the acquisition - it results in voting power of less than 20% increasing to ≥50%

Exemption for land acquisitions in the ordinary course of business

There is an exemption from the notification requirement for acquisitions of a legal or equitable interest in land if the acquisition is undertaken “in the ordinary course of business”. 

The Treasurer’s Explanatory Statement explains that this exemption is intended to apply to ‘routine’ land acquisitions and provides the following examples:

• Acquisitions that can amount to acquisitions in the ordinary course of business include the acquisition of an interest in land for the purpose of an office, headquarters or other routine trading activities, the acquisition of office towers for the purposes of commercial property investment, or a property development company acquiring land to develop residential or commercial property.
• Acquisitions that are not intended to be exempt include acquisitions of land for the purposes of land-banking, land that a competitor is currently operating their business on (such as a supermarket buying the property in which a direct competitor is currently leasing), and the transfer of production or supply capacity from one competitor to another (such as a manufacturing business acquiring the lease of one of their direct competitors’ manufacturing facilities).

Conclusion

The new merger regime contains a quite complex suite of notification requirements which will lead to many more acquisitions being notifiable in Australia. The complexity of the regime means that dealmakers need to be extra careful not to inadvertently fail to notify their transaction to the Australian Competition and Consumer Commission. 

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.