What insolvency practitioners and lenders need to know about the new merger control regime that commenced on 1 January 2026

What is the new merger control regime?

The new mandatory merger control regime is provided for in the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024, which amended the Competition and Consumer Act 2010 (Cth).

The new merger control regime is effective in respect of transactions that complete from 1 January 2026.

The New Merger Control Regime is a mandatory and suspensory regime which requires notification to the ACCC of any acquisition which meets the relevant notification thresholds, detailed below, subject to certain limited exceptions which do not extend to acquisitions from a voluntary administrator, receiver/controller or liquidator.

An acquisition which meets one of the notification thresholds must be notified before it completes, or before the acquirer assumes any control of the target, irrespective of the potential impact of the acquisition on competition (such as, for example, where the proposed sale is to a financial investor rather than a trade competitor).

An acquisition which is required to be notified may not be put into effect until it has received either a waiver or a determination from the ACCC or the Australian Competition Tribunal that it may complete.

If notification is required, putting an acquisition "into effect" before receiving ACCC approval renders the transaction automatically void and significant penalties may apply. From a lender perspective, this could render its security void.

Even if transactions fall short of the new thresholds, the general prohibition on acquisitions that would have the likely effect of substantially lessening competition remains and may need to be considered (as has always been the case).

Notification thresholds

In summary, the notification thresholds are:

• the acquirer group's revenue attributable to Australia is equal to or greater than $500m AND the target group's revenue is equal to or greater than $10m

OR

• the acquirer group's revenue combined with the target group's revenue attributable to Australia is equal to or greater than $200m AND either:

• the target group's revenue is equal to or greater than $50m OR

• the global transaction value is equal to or greater than $250m.

For asset acquisitions that do not comprise all or substantially all the assets of a business, the above thresholds continue to apply to 1 April 2026. From that date, the following thresholds will also apply to standalone asset acquisitions:

• the Australian revenue of the acquirer group is equal to or greater than A$200m and the transaction or market value of the deal is equal to or greater than A$200m;

OR

• where the purchaser is part of a very large corporate group (Australian revenue equal to or greater than A$500m), if the transaction or market value of the deal is equal to or greater than A$50 million.

There are also cumulative thresholds which already apply to acquisitions greater than $2 million, under which acquisitions which meet certain thresholds in the three years prior to an acquisition also need to be notified.

Both the acquirer group's revenue and the target group's revenue includes the Australian revenues of "connected entities".

Overview of ACCC notification process and timeframes – notification waivers, pre-notification, Phase 1 and Phase 2

The notification process is driven by the buyer.

Notification waivers provide a streamlined process for acquisitions that do not raise competition concerns and can be assessed quickly based on upfront information. The ACCC grants waivers within 25 business days and decisions are published one day after being made. Waivers are intended for straightforward cases with no market overlap, vertical integration or complex competition issues. If a notification waiver is granted then no Phase 1 or 2 assessment will be undertaken. So far the ACCC has been issuing waiver decisions within about 11 business days but as at 24 February it has rejected three applications where it could not readily conclude that the transaction had no competition concerns.

Assuming that one of the Notification Thresholds is triggered by a proposed acquisition and it is determined a waiver notification is not likely to be available (or is sought but not granted), a formal notification will need to be made, and the ACCC will undertake a Phase 1 or initial assessment. The Phase 1 process must take at least 15 business days, and is followed by a standstill of 14 days before a transaction can complete to allow for any review applications to the Australian Competition Tribunal. The ACCC says that Phase 1 will be a 30 business day process. This timing can be extended in limited circumstances, for example when the notifying party:

• offers a commitment or undertaking;

• requests an extension to the timeline;

• does not provide information to the ACCC by the specified date; or

• takes longer than 10 days to respond to a compulsory information request.

The formal commencement of Phase 1 is preceded by a "pre-notification" process with the ACCC, to finalise the written material forming part of the notification. The pre-notification phase can range from 2-4 weeks (the ACCC's "target") to several months before the Phase 1 process and statutory clock officially commence. The duration of this phase can vary significantly due to factors such as the complexity of the transaction or products, the ACCC's familiarity with the relevant industry, the need for any coordination between antitrust authorities in different jurisdictions, the time required to conduct "teach-ins" for ACCC staff on the relevant products and competitive dynamics, the time taken to respond to ACCC RFIs, third party soundings by the ACCC, delays in parties accessing and preparing the necessary information, or the submission of incomplete notifications.

If, following market inquiries in Phase 1, the ACCC considers that the acquisition, if it proceeds, may lead to the substantial lessening of competition in a market, then the assessment will move to Phase 2 or detailed assessment involving publication of its concerns (called a "Notice of Competition Concerns"), further market inquiries and, potentially, compulsory information/document notices. The ACCC says that Phase 2 will be a further 90-business day process. But again, this timing can be extended. As at 24 February, the ACCC has approved 19 notified acquisitions after Phase 1, and two have moved to Phase 2 (Coles Kalgoorlie; EG/Ampol). The ACCC expects that around 80% will be approved at Phase 1.

These timeframes are unlikely to be capable of expedition in an insolvency context although the prenotification process can be used to encourage the ACCC to move as expeditiously as possible and to encourage the ACCC to provide an early determination at 15 business days from notification.

What must be provided to the ACCC to make a notification, and when?

The ACCC will only accept a filing and start the statutory clock once a competitive sale process is sufficiently progressed to have identified the likely acquirer. This is a change from the prior informal merger clearance process where the ACCC would engage with shortlisted bidders about a transaction prior to the winning bidder being determined (and also engage with administrators as they receive and assess bids). Under the new merger control regime, competing bidders will be able to engage in very preliminary early discussions but the ACCC will not generally commence pre-notification and engage in detailed consideration of any draft filings or accept filings before there is certainty about the identity of the winning bidder. Usually, this will mean signed sale documentation or a binding term sheet with a bidder.

All forms of notification, whether a long form, short form or a waiver will require the following information:

• A summary of the acquisition and details of the parties and their connected entities;

• Commercial rationale;

• Australian revenue of the parties for the last three financial reporting periods;

• Any acquisitions during the past three years of targets involves in the supply or acquisition of the same or substitutable goods or services;

• Description of the relevant goods or services supplied by the parties and areas of overlap;

• Market shares;

• Transaction documents.

There are additional information and document requirements for the short and long forms – in particular the long form.

Fees

The ACCC filing fees associated with the new merger control regime are:

• Notification waiver – A$8,300;

• Notification/Phase 1 – A$56,800; and

• Phase 2 – A$475,000 (transaction value $50m or less); A$855,000 (transaction value between $50m and $1b) and A$1,595,000 (transaction value above $1b).

What if the transaction meets the notification thresholds and is not notified?

If an acquisition meets the notification thresholds and is not notified, the transaction will be void (not voidable) and penalties may apply.

It is not clear how this will work in practice where first ranking security has been released to enable the sale to proceed or where a lender to the successful bidder has taken security over the acquired assets. This aspect of the new merger control regime seems likely to give rise to disputes. Lenders to successful bidders will likely require substantial comfort that the new merger control regime does not apply before funding an acquisition, for fear of their collateral not being subject to the security granted in their favour by the bidder.

Clearly, the risk that a transaction will be void mandates that very careful attention is given to whether the notification thresholds are met in relation to a particular proposed transaction.

Deciding whether to notify a transaction to the ACCC will be critical. This is likely to lead to greater due diligence on potential bidders, and a very early focus on assessing the notification thresholds; it may influence the choice of bidder particularly where trading on is cash constrained.

Practical implications of notifying insolvent transactions

Even if the requirements of the new merger control regime are managed proactively and effectively, complexity and delay to an insolvent sale process is likely where a notification threshold is met:

• If the notification waiver process is used, factor up to an additional 25 business days or five weeks from submission to your timetable; and

• If the transaction needs notification and is approved in Phase 1 without delays, the ACCC process (including waiting period after its determination) will take ~six to eight weeks from when the filing is accepted and the statutory clock starts. This excludes pre-notification (see above). The timeframe will be longer if pre-notification is included and longer again if the transaction moves to more detailed Phase 2 review.

In the context of a standard voluntary administration, this is a substantial extension of the statutory timetable. It will likely make an application to extend the convening period necessary in cases where it otherwise may not have been.^[1] Any trade on business will need to be funded during this time, in circumstances where the successful bidder may be unable, under the "control" restrictions in the new merger control regime pending ACCC determination, to fund the trade on or to undertake the trade on pending completion by way of licence.