By Jacqueline Downes -
Snapshot
- Australia’s new mandatory, suspensory and administrative merger regime will commence on 1 January 2026. Under the new regime, acquisitions of shares or assets will need to be notified to the ACCC where the transaction is connected to Australia, results in a change of control, meets certain monetary thresholds and no exemptions apply.
- There is significant uncertainty about how notification thresholds and exemptions will work in practice, particularly where ownership and investment structures are complex. Given the consequences for non-notification are significant, parties should proceed with caution.
- Some features of the new regime are overly broad and risk capturing transactions which raise negligible anti-competitive concerns. Combined with high and cumulative fees, expanded discretion for the ACCC and heightened procedural requirements, there is a real risk the new regime undermines deal certainty and imposes lasting frictions. This raises questions about whether the regime will ultimately deliver on the government’s productivity agenda.
On 1 January 2026, Australia will enter a new era of merger regulation. The long-standing voluntary and informal system will be replaced with a mandatory and suspensory regime, marking the most significant overhaul of Australia’s merger laws in decades. The regime came into effect on a voluntary basis on 1 July 2025. However, the Australian Competition and Consumer Commission (‘ACCC’) signalled that, from 1 October 2025, it can no longer guarantee that any applications submitted under the existing informal system will be reviewed in time before mandatory notification commences.
Mandatory notification
The new merger control regime applies to acquisitions of shares in the capital of a body corporate or corporation (including units, unit trusts and interests in managed investment schemes) as well as proprietary, legal and equitable rights over any assets of a person or corporation. Notification is mandatory where such an acquisition (a) is connected to Australia, (b) results in a change of control (only for acquisitions of shares and units), (c) meets the prescribed monetary thresholds and (d) no exemptions apply. The Minister can also designate acquisitions which must be notified regardless of whether the thresholds are met (and has done so for certain acquisitions relating to supermarket businesses) and may also grant specific classes of acquisitions exempt from the notification requirement.
