Australia's new merger control laws: an updated snapshot

With Australia's new mandatory and suspensory notification merger control regime now in place, amendments around the notification thresholds and exceptions have been announced.

The amended notification thresholds, due to take effect on 1 April 2026, relate to acquisitions that do not result in a person acquiring all, or substantially all, of the assets of a business or control of a body corporate, as well as to acquisitions of shares in a body corporate that do not result in control of the body corporate.

The new notification regime is the most significant change to Australia's merger and antitrust settings in almost 50 years. 

Contact our Competition and Regulation team for assistance navigating the new rules to ensure deals do not fall victim to inadvertent mistakes.

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Overview of the latest amendments

The key aspects of the latest amendments are as follows.

1. The existing revenue thresholds for notifying an acquisition of an asset now only apply where the acquisition has the effect that a person will acquire all, or substantially all, of the assets of a business.  There are no changes to the existing revenue thresholds for acquisitions of shares resulting in control.
2. The existing transaction value threshold continues to apply to acquisitions of shares or assets and has not been changed.  However, from 1 April 2026, there will be new (lower) notification thresholds for acquisitions of assets that do not result in a person acquiring all, or substantially all, of the assets of a business.
3. From 1 April 2026, there will also be new notification thresholds for acquisitions of shares that do not result in control (provided the acquisitions also otherwise meet the earlier notification thresholds).
4. The existing exceptions to notification have been clarified and, in some instances, expanded.  In particular, the Government has introduced a new exception for acquisitions of land undertaken in the ordinary course of business.

Notification thresholds for acquisitions of shares or businesses that apply from 1 January 2026

From 1 January 2026, the following notification thresholds apply to acquisitions of shares resulting in control, or acquisitions of all or substantially all of the assets of a business:

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Notification thresholds for other asset acquisitions that apply from 1 January 2026

From 1 January 2026 to 31 March 2026, the following notification thresholds apply to acquisitions of assets that do not result in a person acquiring all, or substantially all, of the assets of a business:

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New notification thresholds for other asset acquisitions that apply from 1 April 2026

From 1 April 2026, the following new notification thresholds will apply to acquisitions of assets that do not result in a person acquiring all, or substantially all, of the assets of a business:

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New notification thresholds for acquisitions of shares not resulting in control that apply from 1 April 2026

From 1 April 2026, acquisitions of shares or assets that meet the earlier notification thresholds, but do not result in control of a body corporate, will nonetheless will be notifiable if they meet the additional notification thresholds below:

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Waivers

Under the new regime, it is possible to apply to the Australian Competition and Consumer Commission (ACCC), Australia's competition law / antitrust regulator, for a 'waiver'.  

A waiver is a determination by the ACCC that the acquisition is not required to be notified, even if it meets the notification thresholds.  The waiver process is intended to provide a straightforward and low-cost mechanism for acquisitions that clearly do not present a material risk of harm to competition or consumers to be cleared by the ACCC.

The ACCC has broad discretion in determining whether to grant a notification waiver.  However, it must consider (at a minimum) the following factors:

• the object of the Competition and Consumer Act 2010 (Cth) (being the enhancement of the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection);
• the interests of consumers;
• the likelihood that the notification thresholds would be met if the acquisition were put into effect; and
• the likelihood that, if the acquisition were put into effect, it would have the effect or likely effect of substantially lessening competition in any market.

Notification

Acquisitions that meet the notification thresholds, and are not subject to a notification waiver, must be notified to the ACCC.  Acquisitions notified to the ACCC may progress through the following stages of review:

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Exemptions

There are a small number of exemptions to the new regime.  Broadly, these exemptions include the following:

• acquisitions that are part of a restructure or reorganisation of related bodies corporate (within the meaning of section 4A of the CCA) or other persons that are related by means of trust or partnership;
• acquisitions of legal or equitable interests in land:
  
  • in the ordinary course of business;
  • for the purpose of developing residential premises or for certain commercial property acquisitions;
  • if the acquisition is an extension or renewal of a lease for the land;
  • where the same acquirer had previously notified the ACCC of an acquisition of an equitable interest in the same land (for example, in relation to a single land acquisition that takes place in multiple stages);
  • if the acquisition relates only to a sale and leaseback arrangement relating to the land;
• acquisitions of interests in land in the form of land development rights (where the substance of the transaction is equivalent to a land acquisition that would otherwise be exempt from the notification requirements);
• acquisitions by a person in the person's capacity as an administrator, receiver, receiver and manager, liquidator, or similar (but, for the avoidance of doubt, this exception does not apply to acquisitions from such a person);
• acquisitions made by an operator of a clearing and settlement facility acting in that capacity, or by a participant in such a facility acting in that capacity and for, or on behalf of, another person who is a party to the acquisition;
• acquisitions of shares or assets that occur as a result of the exercise of a contractual close out right, set-off right, or right of combination of accounts (except where the acquisition results in control of a body corporate or the acquisition of all, or substantially all, of the assets of a business);
• various acquisitions relating to financial securities, debt instruments, money lending, financial accommodation, and security interests; and
• acquisitions that occur by operation of law (for example, the vesting of a deceased person's property in the executor of their estate).

Fees

The following fees apply to merger notifications under the new regime.  There is a fee exemption available for 'small business entities' as defined in the Income Tax Assessment Act 1997:

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Review by Australian Competition Tribunal

If a party is unsatisfied with an ACCC determination under the new merger regime, it may apply to the Australian Competition Tribunal for limited merits review of the ACCC's determination.  Except in limited circumstances, the Tribunal may only have regard to information that was before the ACCC during the ACCC's assessment of the notified acquisition.

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