If you are buying, selling or taking a stake in a business, there is one new step that you need to consider. Since 1 January 2026, mergers or acquisitions that meet certain thresholds must be notified to the ACCC and obtain clearance prior to being able to complete. The consequences of not following the regime for mandated transactions mean that the deal is void and treated as if it never happened. Our M&A lawyers in Melbourne regularly guide buyers and sellers through ACCC notification.
Now that we are six months in, we have a better understanding of how the regime is working, how it has shaped people’s sentiment of the market, and the detail of the introduced Bill that has been put before Parliament to refine how it operates.
Note* Elements of the regime are still being finalised. This article is current as of 27 July 2026. Please contact us for any advice on specific transactions.
WHAT IS AUSTRALIA’S MANDATORY MERGER REGIME?
Previously, for the majority of transactions, there was no obligation to notify the Australian Competition and Consumer Commission (ACCC) about a proposed acquisition before completing it. The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024, which passed in late 2024, replaced that approach entirely (Regime).
On 1 April 2026, two additional changes commenced which are layered on top of the core regime that started on 1 January 2026.The new regime is mandatory, suspensory and administrative. Where your transaction meets the thresholds, you are required to notify the ACCC and are unable to complete until approval is obtained. In the event you complete your transaction and it is caught by the Regime without notifying the ACCC, it is considered automatically void, and significant penalties can apply.
HOW DO I know if my transaction needs to be notified?
It is important to understand various matters before looking at the thresholds which apply to transactions.
Think of there being two tracks to the Regime:
- track (1) the default provisions; and
- track (2) where those default triggers do not apply, then further triggers which cover other situations such as partial acquisitions.
The Regime uses two broad concepts:
- a large entity (which has annual revenue of at least $200m); and
- a very large entity (which has annual revenue of at least $500m)
these terms are not specifically defined but are used in headings of ACCC statements.
When looking at the revenue of the acquirer, all ‘connected’ entities are also included, such as associated entities as defined in the Corporations Act, or entities controlled by or controlling it, as defined in the Corporations Act. For the target, revenue of all entities being acquired must be included.
When looking at revenue, the Regime uses a rolling 12 month window and uses the definition of ‘current GST turnover’ from the GST Act.
A proposed merger or acquisition must be notified to the ACCC if it meets either of the following tests:
TRACK 1: the ‘default test’
Test 1 – Large, merged entity:
- The combined Australian revenue of the acquirer and target is at least $200 million, and
- either:
- the Australian revenue of the target is at least $50 million; or
- the global transaction value is at least $250 million (this is the greater of the market value of all assets being acquired globally or the total global consideration payable under the transaction).
Test 2 – Very large acquirer:
- The Australian revenue of the acquirer is at least $500 million, and the Australian revenue of the target is at least $10 million.
TRACK 2 – where Track 1 does not apply
Minority/Creeping share acquisitions
- Test 1 – for unlisted not widely held entities: where the acquirer holds voting power of 20% or below prior to acquisition and after acquisition increases its voting power to greater than 20%.
- Test 2 – for all body corporates generally: where the acquirer holds voting power of 20%-50% inclusive prior to the acquisition but increases it to more than 50% post-acquisition.
- Test 3 – for listed companies, widely held companies and registered schemes:
- if the acquirer already controls the target, if its holding 20% voting power or lower, and that voting power of holding increases above 20% post-acquisition.
- if the acquirer does not control the target before the acquisition but its voting power or holding goes from below 20% to more than 50% post-acquisition
Discrete/Partial asset acquisitions
- Test 1 – Large, merged entity:
- the Australian revenue of the acquirer is at least $200 million, and
- the global transaction value is greater than $200 million.
- Test 2 – Very large acquirer:
- the Australian revenue of the acquirer is at least $500 million, and
- the global transaction value is greater than $50 million.
Additional Triggers
- Serial acquisitions: There are also rules that capture a series of smaller acquisitions by the same buyer over a three-year period, which can trigger notification even where no single deal meets the above thresholds on its own.
- Supermarkets: Major supermarkets, like Coles and Woolworths (including any connected entities) must also notify any supermarket business acquisition or any large land acquisition, regardless of the general thresholds or the control exemption.
Exempt Acquisitions
- A narrow category of acquisitions falls outside the Regime entirely, including acquisitions where the acquirer does not obtain control of the target, acquisitions by insolvency administrators, and most routine property acquisitions made in the ordinary course of business. The control exemption is among the most commonly relied on and is open to being changed. Keep reading to see the proposed narrowing of the ‘control’ and ‘associate’ tests below.
The ACCC process and the key numbers
If notification is required, the process generally involves the following stages. For completeness, A business day excludes weekends, public holidays, and 23 December to 10 January.
- Phase 1 review: a preliminary review to check for competition concerns; the ACCC will either approve the acquisition(with or without conditions) or escalate it to a Phase 2 review. Decisions are usually made within 15-30 business days.
- Phase 2 review: a more in-depth assessment determining whether the acquisition may proceed or must not be complete. Phase 2 reviews are reserved for acquisitions or mergers where the ACCC has concerns that the transaction may substantially lessen competition. During this phase, the ACCC will issue a Notice of Competition Concerns and can approve, approve with conditions or block the transaction. This process can take up to 90 or more business days to receive a decision. *Note, the ACCC is prevented from blocking a transaction unless they have conducted a Phase 2 review.
- Public benefit application: if the ACCC determines an acquisition must not proceed, the parties may apply for approval on public benefit grounds.
- Notification waiver: a streamlined process for deals that clearly raise no competition concerns; decided within 25 business days.
- Filing Fees: For many businesses which are caught by the Regime, the application fees payable to ACCC can be substantial, especially if the process moves to Phase 2. These fees are payable by the acquirer. For acquirors that are small businesses, you will be exempted from paying a fee (to qualify, you must have less than AUD $10m revenue in the past financial year), although it is unlikely such entities will be caught by the Regime due to their size in most cases:
| Relevant Stage | Transaction Value (where applicable, $AUD) | Fee Payable ($AUD) |
| Notification Waiver | Not applicable | $8,300.00 |
| Phase 1 | Not applicable | $56,800.00 |
| Phase 2 | < or = to $50 million | $475,000.00 |
| > $50m, but not > $1bn | $855,000.00 | |
| > $1bn | $1,595,000.00 | |
| Public Benefit Application | Not applicable | $401,000.00 |
How has the merger regime performed in its first six months?
If notification is required, the process generally involves the following stages. For completeness, A business day excludes weekends, public holidays, and 23 December to 10 January.
Large numbers of Waiver Applications:
- Within the first quarter (1 January to 31 March 2026), the ACCC received 50 notifications and 108 waiver applications.
- By the end of April, this had grown to 76 Phase 1 notifications and 152 waiver applications. Prior to the regime being implemented, the ACCC forecasted only 8 waivers per month, but is currently receiving closer to 38 applications.
The ACCC is quick to make a decision:
- The ACCC exceeded its commitment to deciding 80% of acquisitions within 20 business days, reporting 91%. Phase 1 notifications were resolved with an average of 18 business days, while waivers were resolved in around 11–12 business days.
The ACCC is not afraid to say no:
- At least four acquisitions have been escalated to Phase 2 review.
- The first refusal under the new regime was Coles’ proposed acquisition of a supermarket and liquor site in Kalgoorlie (Western Australia). It was determined that if the acquisition were to go have gone ahead, it would have substantially lessened competition in the area. The decision was made on 30 June 2026.
What are the proposed ‘targeted refinements‘?
On 2 July 2026, the Government announced a suite of “targeted refinements”. These are set out in Schedule 4 to the Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Bill 2026 (the Bill). Please note, the targeted refinements are only proposals and are not yet law. The proposed changes also do not alter the monetary thresholds.
Below is a summary of the changes which will be brought by the Bill if enacted as currently drafted:
1. Failing to notify: from being automatically void to becoming voidable
As at today’s date, any notifiable acquisition that completes without notifying the ACCC is void. Readers should note that the ACCC also does not consider whether the mistake was honest or deliberate in its decision.
If the Bill becomes law, a non-notified acquisition will be voidable rather than being considered void from the outset. To become void, the ACCC would need to apply to the Federal Court to seek orders to void the transaction or granting other remedies. An application would need to be brought within six years. If application to the Court is made, the Court must declare the transaction void, unless in its opinion, the declaration to do so would be considered ‘undesirable’, causing serious harm to innocent third parties. Importantly, the Court in its assessment, must not consider whether the deal would substantially lessen competition, as this is something that only the ACCC is permitted to decide on. We also note that this proposed change is not retrospective, and civil penalties remain but any party will still be able to make any applications they see fit to deal with any consequences that come from the voided transaction.
2. A narrower ‘control’ and ‘associate’ test focusing on practical influence
An acquisition that does not give you control is generally exempt. However, it is well established that control can be held jointly with your associates. Currently, the regime employs the broad definition of associate from the Corporations Act 2001 (Cth), which is designed for takeovers. In practice, this means the definition in play is wide enough to capture parties such as co-investors as they often happen to be parties to a shareholder agreement.
The Bill intends to insert purpose built definitions for merger control, with the new definition only considering you to be an associate if:
- (a) you belong to the same corporate group;
- (b) you have agreed to control or influence the targets financial and operating policies together with someone; and
- (c) you are acting in concert with someone on those matters listed in (b).
Importantly, carve outs would operate to confirm that you are not considered an associate merely because of:
- minority shareholder protections such as tag along rights;
- dividend policy arrangements;
- arm’s length financing arrangement;
- right to dispose of securities; or
- other classes of rights as determined by the Minister.
3. A narrower ‘control’ and ‘associate’ test focusing on practical influence
The ability to extend ACCC clearances beyond their current 12-month “shelf life” in six-month increments is another practical refinement, designed to help long-dated and multi-jurisdictional deals avoid re-running the notification process. There is no proposed cap on the number of extensions that may be granted, but before granting an extension, the ACCC will consider:
- any valid reasons for why the deal has not yet completed;
- whether the market has changed (materially); and
- should a new notification be required.
Frequently asked questions
Are the targeted refinements law yet?
No. Until the Bill passes and commences, the existing rules apply in full.
What happens if I don’t notify?
As at today’s date, if you fail to notify the ACCC of a notifiable transaction, the acquisition or merger is void and substantial penalties can apply.
What is the difference between a notification and a waiver?
If the ACCC decides to waive your acquisition or merger, it means that your transaction does not need to be notified, even where it has met the revenue thresholds. The advantages of obtaining a waiver are two-fold:
- it is faster and cheaper; and
- it is better suited to deals where there is very little or no overlap with competition. The alternative pathway is a notification, which has a longer time frame, includes public consultation and of course, a higher fee.
Planning a transaction?
Sale agreements should be reviewed to ensure they reflect the realities of the regime, and where deal timing is critical, early decisions about whether to pursue a waiver or a Phase 1 notification can make a significant difference. The targeted refinements should make risks around missed notifications, minority investments and long-dated clearances more manageable, but they do not reduce the need for careful upfront analysis of whether and when notification is required.
If you are selling your business, acquiring another or planning a transaction, early legal advice is essential. Contact our M&A lawyers in Melbourne to discuss how the merger regime may affect your transaction.
