Merger Regime Hub | Clayton Utz

Australia has a mandatory and suspensory administrative merger control regime, since January 2026.

Any acquisition of shares or assets that meets prescribed monetary notification thresholds must be notified to the ACCC. The parties cannot take steps to put the acquisition into effect without ACCC approval. If an acquisition that is subject to the regime is not notified to the ACCC before completion, or is notified but is completed without approval, the transaction will be legally void and transaction parties will be exposed to substantial penalties.

Whether an acquisition must be notified to the ACCC will depend on whether:

It meets the prescribed monetary thresholds,
Any exceptions to those thresholds apply, and
If it falls within a specific targeted class of acquisition determined by the Minister.

The regime applies to a broad range of transactions, including those that may have little effect on competition.

Keep across these changes and what they mean for your business and deal pipeline on our one-stop merger regime hub. We will be continually updating with new insights and analysis, so check back in to keep up with the latest developments.

Notification Thresholds

The notification thresholds are based on both the acquirer's group Australian revenue and the size of the target assets/business to be acquired (there is no market share test).

There are 3 thresholds:

Large merged firm (this is the threshold that most commonly applies)
Very large acquirer (this threshold applies to most acquisitions by an acquirer with annual Australian revenue of more than $500 million)
3 year serial acquisitions

The thresholds combine the "Australian revenue" of the transaction parties and their “connected entities”.

Australian revenue is an entity’s gross revenue attributable to transactions or assets within Australia, or transactions into Australia, for the most recent 12-month financial reporting period, calculated according to accounting standards.
Whether an entity is "connected" to another is determined by both legal and practical control tests.

Exceptions

There are various technical exceptions to the notification requirements. Each has several elements and requires careful assessment. Some of the exceptions under the regime include:

Internal restructures

Acquisitions taking place as part of internal restructures.

Acquisitions of land

Certain acquisitions of legal or equitable interests in land, including ordinary course of business, residential development, leaseback arrangements, and further interests in notified land.

Routine trading activity

Acquisitions comprising routine trading in the ordinary course of business, for example inventory, plant or equipment, or land for manufacturing or energy infrastructure.

Operation of law

Acquisitions which occur automatically by the operation of a law.

No control or voting power

Acquisitions where the acquirer does not obtain control of the target or meet certain specified voting power thresholds, even where control is not acquired.

Chapter 6 entities

Acquisitions of a target which is a Chapter 6 entity where the acquisition results in voting power of 20% or less.

External administrators

Acquisitions by a person in the ordinary course of performing a prescribed role as an external administrator.

Superannuation entities

The transfer of members' benefits between superannuation entities, or the change of a trustee of a superannuation entity.

Debt and financial securities

Certain debt instruments (e.g. bonds, notes), money lending, financial accommodation and security interests. Also certain financial securities including rights issues, dividend reinvestments, buy-backs, derivatives and FX contracts.

Filling Fees and Timing

Where a merger is required to be notified to the ACCC, parties can do so either through formal notification (by way of the short or long form notification form) or by way of submitting a waiver application.

For formal notifications:

Parties must wait 14 calendar days after the ACCC’s reasons are published before putting an acquisition into effect, to allow for any applications to the Tribunal to be made.
The ACCC's decision is valid for 12 months – in practice, this gives the parties 12 months to close their transaction without needing to re-notify the transaction to the ACCC.

Excluding pre-notification, the ACCC's performance* against its stated timeframes is as follows:

Notifications (total)	47
Currently under assessment (total)	22
Under phase 1 assessment	20
Under phase 2 assessment	2
Approved in phase 1	25

Shortest	16
Longest	29
Average	20

15 ACCC statutory minimum (business days)

30 ACCC target unless extended (business days)

* To date, there have been no Phase 2 decisions.

Beyond the thresholds

Businesses need to navigate this regime with care.

Understanding these key aspects and seeking advice is essential to ensure compliance and to mitigate potential risks.

Section 50 Risk

Even where the ACCC's notification thresholds are not met, the prohibition of acquisitions that could substantially lessen competition remains in force. The ACCC encourages parties to voluntarily notify under the new regime if they are unsure whether the thresholds apply or if they think their deal may raise competition concerns. Parties should seek competition law advice if they are unsure.

Connected Entities

Parties must carefully work out which entities are their connected entities, as this will impact revenue calculations which are central to assessing whether or not the ACCC's notification thresholds are met, and in turn, if ACCC notification is required. Parties should seek legal advice where they are unsure if notification is required.

Connected to Australia

Acquisitions are only required to be notified where the target is connected with Australia, that is they are "carrying on business in Australia". Assessing whether this is satisfied in each case may be complex, particularly where business may be conducted online or where a business' activities in Australia are sporadic or irregular.

Minority Investment and Control

Certain acquisitions which do not result in an acquirer obtaining control of an entity are still required to be notified where there are certain changes in voting power. Parties need to carefully consider the additional voting power thresholds when considering whether they are required to file their transaction with the ACCC.

Australia's mandatory merger controls: a discussion with ACCC chair Gina Cass Gottlieb

ACCC Chair, Gina Cass-Gottlieb joined Clayton Utz Competition Partners, Kirsten Webb, Michael Corrigan and Mihkel Wilding to discuss the regime. See video highlights from the discussion below.