Australia's New Merger Control Regime: What You Need To Know

From 1 January 2026, Australia will implement a mandatory merger control regime under Part IVA of the Competition and Consumer Act 2010 (Cth) (CCA). The reforms represent the most significant change to merger regulation in over 50 years, replacing Australia's voluntary engagement model with a system that requires qualifying transactions to be notified to and cleared by the Australian Competition and Consumer Commission (ACCC) before completion.

A transition period has been operating since 1 July 2025 until 31 December 2025, during which parties may still seek informal clearance voluntarily notify under the new regime to secure approval ahead of 2026.

What changes on 1 January 2026?

From 2026, transactions that meet prescribed thresholds must be notified and approved by the ACCC before they are completed. Failure by the acquirer (the "principal party") to notify a notifiable acquisition may result in:

• The transaction being void or voidable from the beginning of the transaction (i.e. as if it never occurred); and
• Significant civil penalties or orders.

What transactions are covered by the new regime?

Subject to limited exemptions, the regime applies broadly to:

• Acquisitions of shares in a body corporate; or
• Assets connected with Australia.

The term "assets" is defined broadly to include legal or equitable interests, or part of an interest, in both tangible and intangible property. This encompasses goodwill, intellectual property rights, contractual rights, concessions, and partial interests. As such, even acquisitions of real property, leases, licences and commercial rights may fall within the scope.

For share acquisitions, notification will generally only be required where the acquirer obtains "control", within the meaning of section 50AA of the Corporations Act 2001 (Cth) (i.e. the capacity to determine the outcome of decisions about an entity's financial and operating policies).

Some sectors must notify regardless of the monetary thresholds. Initially, this applies to major supermarket groups (i.e. Coles and Woolworths) and their connected entities. Further designations are expected.

When is a transaction notifiable?

An acquisition must be notified to the ACCC if all of the following are satisfied:

• There is an acquisition of shares or assets;
• The acquisition meets one of the prescribed monetary thresholds, or is within a designated sector (e.g. major supermarkets);
• The target or asset is connected with Australia (for example, the target carries on business in Australia, the asset forms part of a business carried on in Australia, or the asset is located in Australia); and
• For share acquisitions, the acquirer obtains control of the target entity.

This is subject to any applicable exemption, or where the parties have applied for and obtained a notification waiver from the ACCC.

What are the notification thresholds?

Notification is mandatory where a qualifying acquisition meets one of the following financial thresholds:

• Large merged firms:
  • The combined Australian revenue of the acquirer and target ("merger parties") is at least $200 million; and
  • either:
    • The target's Australian revenue is at least $50 million; or
    • The global transaction value is at least $250 million.

• Very large acquirers:
  • The acquirer group's Australian revenue is at least $500 million; and
  • The target's Australian revenue is at least $10 million.

• Three-year accumulated (creeping / serial) acquisitions:
  
  • For medium to large merged firms:
    • The combined Australian revenue of the merger is at least $200 million; and
    • The cumulative revenue from acquisitions in the prior 3 years that predominantly involves the same or substitutable goods or services is at least $50 million.
  • For very large acquirers:
    • The acquirer group's Australian revenue is at least $500 million; and
    • The cumulative revenue from acquisitions in the prior 3 years that predominantly involves the sale of substitutable goods or services is at least $10 million.

The following acquisitions are excluded from being accumulated:

• Acquisitions notified to the ACCC, except those notified under the creeping or serial acquisitions threshold;
• Acquisitions below $2 million Australian revenue; and
• Acquisitions not connected with Australia.

Key terms:

• What is "Australian Revenue"?
  "Australian revenue" refers to the part of an entity's gross revenue (most recent financial year) attributable to:
  • Transactions or assets within Australia; or
  • Transactions into Australia.

• If revenue cannot be reasonably attributed to an acquired asset, then 20% of the asset's market value must be used.

• What is a "Connected Entity"?
  The Australian revenue of the merger parties includes the Australian revenue of connected entities. "Connected entities" include "related entities" and "controlled entities":
  • Related entities:
    An entity is a connected entity of another entity if the second entity is "related" according to section 4A of the CCA. A related party includes:
    • A holding company;
    • A subsidiary of another body corporate; or
    • A subsidiary of the holding company of another body corporate.
  • Controlled entities:
    This test adopts the definition of "control" in section 50AA and "associates" in chapter 6 of the Corporations Act 2001 (Cth).
    An entity controls another entity when it has the capacity to determine the outcome of decisions about the second entity's financial or operating policies.

How will the new review process work, and what are the fees?

There are three notification pathways:

• Waiver notification form: suitable for straightforward transactions that are unlikely to raise competition risks;
• Short form notification: suitable for straightforward acquisitions that may involve competitors and are unlikely to raise competition concerns; and
• Long form notification: suitable for acquisitions that may raise greater competition risks and involve greater complexity and consideration by the ACCC.

After an acquisition has been notified, the ACCC assesses whether the acquisition would be likely to substantially lessen competition.

• Phase 1 (Initial Review):
  • Phase 1 is up to 30 business days, unless the timeline is extended.
  • The earliest the ACCC may approve an acquisition is after 15 business days to allow time for third parties to comment on the notified acquisition on the Acquisitions Register.
  • The ACCC may approve the acquisition with or without conditions. If approved, you must wait 14 calendar days after the ACCC's reasons are published before proceeding with the acquisition, and the acquisition must be completed within 12 months.
  • If the ACCC considers that the acquisition could substantially lessen competition, the ACCC may decide that Phase 2 is required.
  • The fee to notify an acquisition will be $56,800.00.

• Notification Waiver:
  • Waiver determinations are expected to be determined within 20 business days of receiving an application.
  • The earliest the ACCC may approve a waiver application is after 10 business days to allow time for third parties to comment on the notified acquisition on the Acquisitions Register.
  • The ACCC may determine that the acquisition is not required to be notified and approve the waiver, or not grant the waiver.
  • The fee to lodge a waiver application is $8,300.00.

• Phase 2 (In-Depth Review):
  • Phase 2 is up to 90 business days, unless extended.
  • The ACCC may decide to approve (with or without conditions) or not approve the acquisition.
  • A Phase 2 fee is payable within 7 business days after the ACCC advises notification is subject to Phase 2:
  • For transactions valued at $50 million or less, the fee will be $475,000.00;
  • For transactions valued at more than $50 million, but not more than $1 billion, the fee will be $855,000.00; and
  • For transactions valued at more than $1 billion, the fee will be $1,595,000.00.

• Public Benefit Phase:
  • Following Phase 2, Businesses may apply if they consider their acquisition should be approved because the likely public benefits will outweigh the likely public detriments.
  • Businesses may lodge a public benefit application within 21 calendar days if an acquisition is not approved or if it is approved with conditions after the ACCC's competition assessment.
  • The Public Benefit Phase is up to 50 business days, unless extended.
  • The ACCC may decide to approve the acquisition (with or without conditions), or the relevant Phase 1 or Phase 2 decision stands.
  • The fee to apply for the Public Benefit Phase will be $401,000.00.

Small Business Fee Exemption:

No fee applies to an acquisition if:

• If there is only one notifying party of the acquisition and it is a small business entity for the income year that includes the contract date; or
• If there is more than one notifying party, all the notifying parties are small business entities for the income year that includes the contract date.

A "small business entity" is a business with aggregated turnover of less than $10 million.

Exemptions from notification

There are exemptions for certain acquisitions to reduce burden and prevent disruption. On 15 October 2025, the government announced refinements to the regime intended to reduce the burden of "low-risk transactions". Exemptions include:

• Primary law exemptions
  Share acquisitions of are exempt where:
  • The acquirer does not obtain control of the target or had already controlled the target before the acquisition, unless a determination requires notification despite the acquisition not resulting in control; and
  • The target is a Chapter 6 entity and the acquisition results in a voting power of 20% or less.

• Land exemptions
  The following types of land acquisitions are exempt from notification:
  • Land acquisitions made in relation to residential property development;
  • Land acquisitions for any purpose by a business primarily engaged in buying, selling, leasing or developing land, other than to operate a commercial business on the land that is not ancillary or incidental to the primary purpose;
  • Lease extensions and renewals;
  • Land acquisitions where an acquisition of an equitable interest in the land was previously notified;
  • Sale and leaseback arrangements; and
  • These land exemptions extend to acquisitions of land entities and land development rights.

• Financial market exemptions
  Acquisitions relating to the following are exempt from notification:
  • Debt instruments, debt interests in an entity, money lending, asset securitisation arrangements, securities financing transactions, financial accommodation, security interests and derivatives where the acquisition does not result in control;
  • Rights issues and fundraising (including underwriting), share buy-backs and dividend reinvestment;
  • Financial market infrastructure, including clearing and settlement facilities, exercising a contractual right of set-off, or of combination of accounts, or to close out a transaction; and
  • Nominees and other trustees, and custodial or depository services.

• Other exemptions
  There are other exemptions for acquisitions relating to:
  • Liquidation, administration and receivership
  • The operation of a law of the Commonwealth, or of a State or Territory.

What should businesses do?

Businesses contemplating acquisitions completing on or after 1 January 2026 should:

• Assess early whether notification is required, particularly in concentrated markets or where Australian revenue is significant.
• Review acquisitions from the past three years to determine creeping acquisition liability.
• Factor ACCC timelines and fees into deal timetables, conditions precedent and completion dates. Particular care will need to be taken in negotiating material adverse change clauses given more lengthy settlement periods.
• Consider waiver applications for transactions unlikely to raise competition concerns.
• Engage with the ACCC early where competition issues may arise.
• Monitor sector designations, especially in industries at risk of future mandatory notification.

How Can Bennett & Philp Help?

If you are currently completing or contemplating a future transaction, it is important to obtain advice and prepare for these changes early to avoid potential delay, additional cost or penalties.

For more information, or assistance in assessing how these reforms may impact you, please contact Chris Lillie, Director, from our Business Advisory team.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific circumstances It is intended for information purposes only and should not be regarded as legal advice. Further professional advice should be obtained before taking action on any issue dealt with in this publication.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.