Australia

Australian merger control is governed by Parts IV and IVA of the Competition and Consumer Act 2010 (Cth) (CCA).

Notification thresholds and exemptions are set by subordinate legislative instruments, principally the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth).

The regime is mandatory and suspensory as of 1 January 2026 for notifiable acquisitions, which must be notified and cleared, or a waiver from notification must be granted by the Australian Competition and Consumer Commission (ACCC) before completion.

Non-notifiable acquisitions may opt in to the regime and can otherwise be challenged by the ACCC.

The ACCC investigates and decides whether to approve (with or without conditions) or block acquisitions. The ACCC is independent in its merger decisions but its commissioners are appointed by the Australian Government.

The Australian Competition Tribunal conducts limited merits review of ACCC decisions and the Federal Court may conduct judicial review of ACCC decisions. The ACCC may bring Federal Court enforcement action in respect of below-threshold acquisitions (see Question 3.9, below).

The CCA regime applies economy-wide. Special thresholds currently apply to acquisitions in the supermarket sector, and other sectors may be designated in the future (see Question 3.1, below).

Licensing and approval processes in other legislative regimes apply in sectors such as superannuation, insurance and media. Foreign investment (FDI) is governed by the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA).

Australia is not party to any supranational framework and there are no state or territory regimes.

Parties should inform the ACCC if an acquisition is or will be reviewed overseas, and the ACCC may consult with overseas counterpart agencies. The ACCC has entered into memoranda of understanding (MOUs) with the US Federal Trade Commission, US Department of Justice, UK Competition and Markets Authority, New Zealand Commerce Commission, Canadian Competition Bureau and others. On multijurisdictional deals, the ACCC encourages parties to provide confidentiality waivers to facilitate information sharing with overseas counterparts.

In FDI cases, the Treasury will ordinarily refer acquisitions to the ACCC for competition screening as part of the application of the national interest test under the FATA.

Australia has recently undertaken significant reforms. The new mandatory and suspensory merger regime came into effect on 1 January 2026. Further refinements to the regime are expected, and the government has recently indicated that legislation will be introduced to adjust the definition of control, allow for the extension of ACCC clearance decisions and adjust the automatic voiding rules for non-notified acquisitions and instead make such acquisitions “voidable” by court order. A review of the current thresholds is also expected at the end of 2026. A more detailed review of the new mandatory merger regime will be conducted at its 3-year anniversary at the end of 2028.

The trigger for mandatory notification is an acquisition of shares or assets that meets the thresholds.

Share acquisitions are exempt from notification where:

• the target is registered in Australia and is a company listed on an Australian stock exchange, a registered scheme or an unlisted company with more than 50 members (Chapter 6 entity) and the acquisition results in voting power of 20% or less; or
• the acquirer does not obtain control of the target (or already controlled it).

Control means the capacity to determine the outcome of decisions about an entity’s financial and operating policies, including “negative control” (e.g. significant veto rights) and joint control with “associates”, which is a broad term under the Corporations Act and may include some minority investments. Control is a complex concept under the Australian regime, and advice should be sought on specific transactions.

However, a share acquisition that triggers certain additional voting power thresholds requires notification even if it does not result in control:

• Non-Chapter 6 entities or certain foreign listed companies. Voting power increases from 20% or below to more than 20%.
• All body corporates. Voting power between 20–50% increases to 50% or more.
• Chapter 6 entities (acquirer already in control). Voting power increases from 20% or below to more than 20%.
• Chapter 6 entities (acquirer not in control before or after). Voting power increases from below 20% to 50% or more.

The regime can also capture acquisitions of assets. No control test applies to these acquisitions.

Whether an acquisition is notifiable depends on whether the thresholds are met at the time of acquisition, regardless of the intended duration.

The regime captures acquisitions of any shares and assets that meet the notification thresholds, subject to exemptions (see Question 3.7, below).

Shares are shares in a body corporate. Units in unit trusts and interests in managed investment schemes are also captured.

Assets are assets of a person, which includes legal or equitable interests (including options) in tangible or intangible assets, property, land, goodwill, intellectual property or partial interests, unless (except for patents) acquired in the ordinary course of business. The creation of new rights (e.g. the initial grant of a licence) likely does not constitute assets of a person.

Acqui-hires that involve the acquisition of such shares or assets will be captured.

There are no specific rules for joint ventures. A joint venture formation or acquisition may be captured if it involves the acquisition of shares or assets.

Where a proposal to put one acquisition into effect includes a proposal to put another into effect, the parties may lodge a single combined notification and the acquisitions are treated as a single acquisition. This applies to interrelated transactions between the same or different parties. Transactions not included in the combined notification must be separately notified.

The interrelation between transactions may bear on whether the thresholds are satisfied, in terms of “creeping/serial” acquisitions, transaction value and the anti-avoidance provision (see Questions 3.1 and 3.3, below).

The mandatory regime applies to acquisitions of shares and assets (see Question 2.1, above) that are connected to Australia (see Question 3.6, below) and that pass certain monetary thresholds (see below).

If one of the following monetary thresholds is satisfied, the acquisition must be notified. Amounts are indexed annually.

Acquisitions of shares/all or substantially all of the assets of a business:

• Large merged firm test:
  • the combined Australian revenue of the parties is at least AUD 200 million; and
  • the target’s Australian revenue is at least AUD 50 million OR the cumulative Australian revenue from the target and any similar acquisitions in the last three years is at least AUD 50 million OR the transaction value is at least AUD 250 million.
• Very large acquirer test:
  • the acquirer group’s Australian revenue is at least AUD 500 million; and
  • the target’s Australian revenue is at least AUD 10 million OR the cumulative Australian revenue from the target and any similar acquisitions in the last three years is at least AUD 10 million OR the transaction value is at least AUD 250 million.

For the cumulative tests (which target “creeping/serial” acquisitions), the acquisitions must predominantly involve the same or substitutable goods or services. Certain acquisitions are excluded from being accumulated, including those already notified, acquisitions of entities with below AUD 2 million Australian revenue and acquisitions of entities the acquirer has not begun (and cannot begin) to control or has since divested.

Discrete asset acquisitions:

• Large acquirer test:
  • the acquirer group’s Australian revenue is at least AUD 200 million; AND
  • the global transaction value is at least AUD 200 million.
• Very large acquirer test:
  • the acquirer group’s Australian revenue is at least AUD 500 million; AND
  • the global transaction value is at least AUD 50 million.
• Some discrete asset acquisitions may trigger notification under the creeping/serial acquisitions threshold.

Sector-specific thresholds: Certain classes of acquisition may be designated by the Minister as requiring notification. At time of drafting, all land or supermarket business acquisitions by major supermarkets must be notified.

Finally, there is an anti-avoidance provision requiring the effects of a scheme to be disregarded if it would be reasonable to conclude that its purpose is to avoid mandatory notification.

An entity’s Australian revenue is its gross revenue (per accounting standards) for its most recently ended 12-month financial reporting period attributable to transactions or assets within, or into, Australia.

Revenue includes the revenue of the relevant parties and each connected entity. Entities are connected if they are related bodies corporate, one controls the other (including joint control with an associate, except for minority protection rights), or both are controlled by a common entity. If an entity is connected at the contract date, its revenue for the full 12-month financial reporting period is included.

To avoid double counting, an entity’s revenue should not be included if already included in another entity’s revenue.

In calculating the target’s revenue:

• Share acquisitions. Australian revenue of the target body corporate (and connected entities not excluded from the acquisition).
• Acquisitions of all or substantially all the assets of a business. Australian revenue of the target attributable to that business.

For acquisitions of discrete assets, the thresholds relate to revenue of the acquirer and transaction value. Transaction value is the higher of: the global sum of the market values; or the global consideration received or receivable, for all shares and assets being acquired as part of the contract, arrangement or understanding pursuant to which the acquisition will take place.

Amounts must be converted to AUD using an average exchange rate (as published by the Reserve Bank of Australia if available, otherwise a publicly available market rate) for the period most closely corresponding to the relevant period. The daily rate on the contract date should be used for transaction value.

Whether an acquisition is notifiable is not determined by market share thresholds.

The shares or assets must be connected with Australia.

This means shares of a body corporate or interests in an entity carrying on business in Australia, or assets used in or forming part of a business carried on in Australia. This is assessed case by case, depending on the nature and regularity of the entity’s transactions or activities in Australia. A local overlap is not required; a single party’s activities can trigger notification. Some foreign-to-foreign transactions can be caught.

Exempt acquisitions include:

• acquisitions of assets (including land) in the ordinary course of business (except patents);
• certain acquisitions of interests in land, including:
  • for the purpose of developing residential premises;
  • for a business primarily engaged in buying, selling, leasing or developing land;
  • extensions or renewals of leases; and
  • those relating only to a sale and leaseback arrangement;
• acquisitions by an external administrator or persons in a similar statutory capacity;
• certain financial market acquisitions, including routine acquisitions in financial market infrastructure, certain debt instruments that do not result in control, and routine trading or capital-raising activities;
• acquisitions resulting from the operation of Commonwealth, state or territory law;
• transfers of members’ benefits between superannuation entities and acquisitions resulting from a change of trustee of a superannuation entity; and
• acquisitions as part of internal restructures or reorganisations.

We recommend seeking legal advice before relying on these exemptions.

There is no express “call-in” power, but the ACCC monitors compliance and the regime imposes automatic legal consequences on non-notified acquisitions (see Question 7.1, below).

Unless the acquisition opts in to the regime (see Question 3.11, below), the ACCC can challenge below-threshold acquisitions in the Federal Court under section 50 of the CCA, which prohibits acquisitions that have the effect or likely effect of substantially lessening competition in any market.

There are deeming provisions in place where the ACCC does not make a determination within the applicable determination period (see Question 4.12, below).

Court orders that a stayed acquisition is not void may only be sought within six years of the acquisition being put into effect. In respect of acquisitions that contravene section 50, orders for divestiture or declarations that the acquisition is void may only be sought within three years of the contravention.

Pecuniary penalties for any contravention must be sought within six years of the contravention.

It may be appropriate to opt in to the mandatory regime where there is a risk of contravening section 50 of the CCA.

Notification is mandatory. Parties may apply to the ACCC for a notification waiver, which is intended to be a fast, low-cost pathway for acquisitions that plainly do not give rise to competition issues with a maximum assessment timeframe of 25 business days. Waivers may be suitable in circumstances including where there is no or very limited competitive overlap, market definition is clear and concentration is low, or where there are no complex legal issues.

The ACCC has issued guidance as to when a transaction is more likely to be appropriate for a waiver, which it is applying strictly (available at www.accc.gov.au/about-us/publications/merger-notification-waivers-interim-guidance).

Yes, until cleared, notifiable acquisitions are stayed. Putting an acquisition into effect while stayed contravenes the Act (which can give rise to penalties) and renders the acquisition void (see Questions 7.1 and 7.2, below). “Put into effect” is interpreted broadly and can extend to steps short of the transfer of legal ownership, such as terminating key employees, closing facilities or integrating IT systems (see also Question 7.2, below).

There is no general mechanism to waive the standstill or carve out the Australian process.

The notification is to be made by the principal party/parties to the acquisition (i.e. the acquirer(s)), and the ACCC will engage with the notifying party. The notification form will require some input from the target.

The waiver application fee is AUD 8,300 and the notification fee is AUD 56,800. There is a small business exemption. A notification is taken not to have been made until the fee is paid.

If the acquisition moves to Phase 2, the fee depends on transaction value:

• AUD 475,000 where the relevant amount is AUD 50 million or less;
• AUD 855,000 where it is more than AUD 50 million but not more than AUD 1 billion; and
• AUD 1,595,000 where it exceeds AUD 1 billion.

If the Phase 2 fee is not paid within seven business days, the ACCC is taken to have ceased considering the notification.

Fees may be revised by the Minister.

A notification can be made where the deal has not yet been signed but all proposed parties intend to enter into it. This may allow notification at Heads of Agreement stage, though it will generally be difficult for bidders to notify while competing bids are being considered. The ACCC may consider notification waiver applications for competing bids in some circumstances.

No, but the practical deadline is completion because completion is prohibited until the acquisition has been notified and cleared.

Notifications use either a short form (straightforward, low-risk acquisitions) or long form (higher-risk or complex acquisitions). Both require information on the parties’ activities, financials, relevant markets, competitors and customers, as well as disclosure of the key transaction documents. Long form notifications also require disclosure of board materials relating to the acquisition. The forms and accompanying guidance are available at www.accc.gov.au/business/mergers-and-acquisitions/notifying-an-acquisition.

Notifications must be in writing and submitted through the ACCC’s acquisitions portal. It must include a declaration signed by the notifying party(ies).

Waiver or short-form notifications may be suitable.

Pre-notification engagement is not legally required but is strongly encouraged by the ACCC (except for waivers). It is commenced by submitting a draft notification via the ACCC portal. The ACCC typically responds within five business days. Straightforward matters may complete pre-notification in approximately two weeks, while deals with possible competition concerns may take at least four weeks. The waiver process does not typically involve any pre-engagement.  

Determination periods

Phase 1 runs for 30 business days from the effective notification date. The ACCC may approve (with or without conditions) or issue a Phase 2 notice. The earliest the ACCC may approve a notification is Business Day 15.

Phase 2 starts immediately after Phase 1 and lasts up to 90 business days, subject to extensions (see, e.g. Question 5.4, below).

If the ACCC does not make a determination within the applicable period, the acquisition is deemed approved and can be completed 14 calendar days later (see Question 6.2, below).

Public benefit phase

If the ACCC prohibits a deal or clears it subject to conditions, the notifying party may apply for a public benefit determination within 21 days. The public benefit application fee is AUD 401,000, payable at the time of application.

The public benefit determination period starts on the effective application date and ends 50 business days later. If the ACCC does not make a determination within that period, it is taken to have decided not to clear the acquisition.

Adjusting time frames

The timetable can be extended if a section 155 notice is issued, deadlines are extended by agreement with the ACCC, or there is a material change of facts. The timetable can be shortened by the ACCC making determinations before the deadline.

If the ACCC considers the notification materially incomplete or misleading, it may decide there is no effective notification date, extending the timeline.

Waiver applications

The ACCC is required to make a decision about a waiver application within 25 business days. If it rejects the application or does not grant the waiver within this time, the parties will be required to notify the acquisition in order to secure ACCC approval.

The deadlines refer to “business days”, which excludes Saturdays, Sundays, Australian Capital Territory public holidays, and any day between 23 December and 10 January (inclusive). If the effective notification date falls on a non-business day, the timeline starts on the next business day.

Generally, the timeframe for non-problematic deals that are notified is likely to be around three months. This comprises time to prepare the draft filing, pre-notification engagement, a 15–30 business day Phase 1 period and a mandatory 14-calendar-day waiting period following clearance.

It may be appropriate to seek a waiver in respect of some non-problematic deals. This is likely to take around one to two months, including preparation of the draft filing and the 25 business day review period.

Different processes apply depending on whether the transaction is hostile or is endorsed by the target board and/or its shareholders. The public offer rules generally allow sufficient timing flexibility to account for processes like merger control. Takeover bids can be notified if they have been made, publicly proposed or fall within exceptions in the Corporations Act or the proposed acquirer intends to request coverage of the surprise hostile takeovers regime in the CCA. Under the hostile takeovers regime, publication on the Acquisitions Register is delayed and the 14-calendar-day Tribunal review period standstill is relaxed (but the bidder cannot exercise voting rights during this period).

Notified acquisitions are published on the public Acquisitions Register, allowing third parties to comment. The ACCC may also invite submissions from interested persons. To allow time for third-party comment, the ACCC cannot approve in Phase 1 earlier than Business Day 15. Third parties bring non-notified acquisitions to the ACCC’s attention not uncommonly.

The ACCC may request information voluntarily or issue compulsory notices under section 155 of the CCA requiring production of information, documents, or attendance for examination. Section 155 notices are more likely in Phase 2 given the shorter Phase 1 timeframe.

Parties should identify confidential information and the basis for any claims when providing information. The ACCC can withhold confidential information from the Acquisitions Register. However, the ACCC may disclose confidential information in certain circumstances under section 155AAA of the CCA.

The test is whether the acquisition would have the effect, or likely effect, of substantially lessening competition (SLC) in any market, including by creating, strengthening or entrenching a substantial degree of market power. “Substantial” means meaningful to the competitive process and “likely” requires a real commercial likelihood.

To escalate to Phase 2, the ACCC must be satisfied the acquisition could substantially lessen competition. To prohibit the deal at Phase 2, the ACCC must be satisfied the acquisition would have the effect or likely effect of SLC in all the circumstances.

The ACCC applies a future “with and without” framework, comparing the likely competitive state with the merger against a commercially realistic counterfactual without it. Concentration (assessed via the Herfindahl-Hirschman Index (HHI)) is a key indicator but not determinative.

The ACCC examines unilateral effects, coordinated effects, vertical and conglomerate effects (including foreclosure), and dynamic effects (including innovation competition).

Barriers to entry and expansion, countervailing buyer power, and (for serial acquisitions) cumulative effects over the prior three years are also assessed.

“Rivalry-enhancing efficiencies” may form part of the SLC assessment, where clear and compelling information shows the transaction will incentivise more vigorous competition.

Other efficiencies are only relevant on a public benefit application following an adverse Phase 2 determination, where the ACCC must be satisfied public benefits outweigh public detriments (including any SLC). At time of drafting, no acquisitions have proceeded to this phase under the new regime.

In Phase 1, the ACCC aims to raise material issues by Business Day 18 to give the parties an opportunity to respond.

To move to Phase 2, the ACCC must give the notifying party a written Phase 2 Notice explaining its concerns. In Phase 2, the ACCC must issue a Notice of Competition Concerns (NoCC) within 25 business days, setting out its preliminary SLC assessment and the evidence relied on. The ACCC is not required to provide access to its case file or disclose confidential third-party information.

The notifying party has 25 business days to respond to the NoCC and may request extensions, which extend the Phase 2 determination period.

Remedies may be offered no later than:

• Business Day 20 in Phase 1;
• Business Day 60 in Phase 2; and
• Business Day 35 in the Public Benefit Phase.

The ACCC must not have regard to offers made after these deadlines, subject to applicable extensions. If remedies are offered in Phase 1, between Business Days 50 and 60 of Phase 2, or in the Public Benefit Phase, the timeline may be extended by up to 15 business days.

The ACCC expects parties to put their best proposal forward early. A remedy offer should be accompanied by a detailed submission explaining how it addresses competition concerns and how it will be implemented and monitored.

Remedies can be structural (typically divestiture) or behavioural (constraining conduct on price, quality, output or terms). The ACCC has a strong preference for structural remedies, which are enduring and carry lower monitoring costs. Each remedy is assessed case-by-case for effectiveness, deliverability and implementation risk.

The ACCC has broad power over conditions and is not confined to accepting the parties’ offered remedies. Conditions may require divestiture or compliance with a court-enforceable undertaking under section 87B of the CCA.

If remedies are imposed as conditions, failure to comply is a contravention of the CCA. Where remedies are implemented via a section 87B undertaking, the ACCC may apply to the Federal Court for compliance orders, compensation and other relief.

The ACCC must give written notice to the notifying party and publish determinations and reasons on the Acquisitions Register.

There is a 14-calendar-day Tribunal review window following every determination of a notification. If a review application is lodged within that period, the acquisition remains stayed until the Tribunal proceedings are resolved. The standstill period does not apply where a waiver is granted.

Provisions in a sale of business contract that are “solely for the protection of the purchaser in respect of the goodwill of the business” are exempt from antitrust provisions in the CCA. In determining a notified acquisition, the ACCC may declare the exemption does not apply to any provisions not necessary for protecting the purchaser’s goodwill.

Three challenge routes exist:

• review of process-related decisions (within seven days);
• merits review by the Tribunal (within 14 calendar days); and
• judicial review in the Federal Court on questions of law only.

If a notifiable acquisition is put into effect without obtaining a waiver or clearance, this is a contravention of the CCA and the acquisition is void (see, however, Question 1.7, above). The maximum pecuniary penalty for a corporation is the greater of AUD 100 million, three times the benefit obtained, or 30% of adjusted turnover during the breach period. Individuals knowingly concerned may face civil (not criminal) penalties of up to AUD 2.5 million.

No enforcement actions under the new regime have been brought to date.

It is a contravention of the CCA to put an acquisition into effect while it is stayed, and the acquisition is void (see, however, Question 1.7, above).

The same civil penalty regime applies. The prohibition on putting an acquisition into effect while stayed is interpreted broadly and may include steps affecting the parties’ competitive relationship (see Question 4.2, above).

The following sanctions exist:

• It is a contravention of the CCA to knowingly or recklessly give information under an acquisition provision that is false or misleading in a material particular. If a notification is materially incomplete or misleading, this may also have consequences for time frames (see Question 4.8, above).
• Non-compliance with a section 155 notice is a criminal offence (fines up to AUD 33,000 or two years’ imprisonment for individuals; up to AUD 165,000 for companies).
• Knowingly giving false or misleading information to the ACCC is a serious criminal offence.