If your business is planning an acquisition, now is the time to prepare for the upcoming changes to Australia’s merger regime. The introduction of mandatory ACCC notifications from 1 January 2026 means companies must be proactive in assessing their obligations and engaging with regulators early to avoid potential penalties and delays.
On 10 December 2024, the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth) (Merger Act) received assent and became law. The Merger Act primarily amends the Competition and Consumer Act 2010 (Cth) (CCA Act) and introduces a number of significant changes to Australia’s merger regime which will commence on 1 January 2026, with certain voluntary provisions becoming effective from 1 July 2025.
In this alert, we highlight certain guidelines recently published by the Australian Competition and Consumer Commission (ACCC), including in relation to your options for engaging with the ACCC for acquisitions which may be affected by the Merger Act.
If you missed our broader overview of the key changes arising from the Merger Act, you can view it here.
What are the rules currently?
The CCA Act prohibits any person from acquiring shares or assets of a company, if the acquisition would, or is likely to, substantially lessen competition in the market (Competition Rule). Currently, there is no mandatory requirement to notify the ACCC of a proposed acquisition or to wait for ACCC clearance before proceeding with an acquisition. However, acquisition parties may seek informal clearance from the ACCC or make an application for a merger authorisation on a voluntary basis to mitigate the risks of breaching the Competition Rule. The key differences between the two approaches are as follows:
(ii) An application for a merger authorisation is a formal process under the CCA Act. If a merger authorisation is granted, it prevents the ACCC from taking legal action for a breach of the Competition Rule.
What is changing?
From 1 January 2026, acquisitions that meet certain thresholds must be notified to the ACCC (Notifiable Acquisition). The Government has released proposed thresholds (see our alert here), with the final thresholds to be set by the Treasury Minister in a legislative instrument (which is expected later in 2025). A failure to notify the ACCC of a Notifiable Acquisition, or completing a Notifiable Acquisition after notifying the ACCC but before receiving approval from the ACCC, may carry penalties (see our alert here).
1 July 2025 to 31 December – What are your options?
(i) From 1 July 2025 to 31 December 2025, you may continue to seek informal clearance from the ACCC. However, requests received for informal clearance after October 2025 risk not being considered before 31 December 2025, so engagement with the ACCC as soon as possible is recommended. See further details on informal clearance below.
(ii) If you do not receive informal clearance before 31 December 2025, you would be required to notify under the new regime if it is a Notifiable Acquisition. To avoid this risk, you may choose to voluntarily notify the ACCC under the new regime from 1 July 2025.
Informal clearance
(i) If informal clearance is granted between 1 July 2025 and 31 December 2025, you will not be required to notify under the new regime, provided you receive a compliant clearance letter, and the acquisition completes within 12 months of the ACCC’s letter.
(ii) If informal clearance is granted before 1 July 2025, and the acquisition –
(A) completes before 1 January 2026, you will not be required to notify under the new regime;
(B) is not expected to complete by 1 January 2026, you can request an updated informal review and, if approved, you will not be required to notify under the new regime provided the acquisition completes within 12 months of the approval.
(iii) If the ACCC does not consider an informal clearance request, or does not provide informal clearance before 31 December 2025, and the acquisition:
(A) is a Notifiable Acquisition – you will be required to notify under the new regime; or
(B) is not a Notifiable Acquisition – you will not be required to notify under the new regime.
(iv) You should be mindful of the limitations of informal clearance as set out in (a)(i) above, and that, similarly, acquisitions that are not Notifiable Acquisitions are still subject to the Competition Rule.
Merger authorisation
(i) The ACCC will continue to consider merger authorisation applications received before 30 June 2025 until 31 December 2025.
(ii) If the ACCC grants a merger authorisation between 1 July 2025 and 31 December 2025, and the acquisition completes within 12 months of the merger authorisation being granted, you will not need to notify under the new regime.
(iii) If the ACCC does not make a decision on a merger authorisation application before 31 December 2025, you would need to notify under the new regime if the transaction is a Notifiable Acquisition.
What is next?
The Merger Act will introduce other changes to Australia’s merger regime that will impact how merger parties interact with the ACCC, including an update to the ‘substantially lessening competition test’, the public acquisitions register, how long it will take for deals to clear and associated costs, and what will need to be provided when decisions are reviewed. Further guidelines on various aspects relating to the Merger Act are expected in the coming weeks.
McCullough Robertson regularly advises clients on merger authorisation, competition and regulatory issues. If you would like any assistance understanding the merger notifications process, regulatory assessments, and how this will impact your business, please reach out to one of our partners below.
