Mandatory Merger Notifications Are Coming

Australia’s new mandatory merger control regime is on the horizon. From 1 January 2026, certain transactions must be notified to the Australian Competition and Consumer Commission (ACCC) and cleared before completion.

A voluntary opt-in period is now open and runs until 31 December 2025. This is a critical window to plan ahead.

These changes represent the most significant shift in Australian merger control in decades. Proactive planning will be critical to avoid costly delays and surprises.

Key thresholds

Under the new regime, notification will generally be required (unless exempted) where:

  • the parties and the transaction meet the monetary thresholds;

  • it involves an acquisition of shares, assets, a business, or other interests that confer control or significant influence (not limited to legal control of an entity); and

  • the target is "connected with Australia", meaning it carries on business in Australia.

Important: The new regime also applies to real property transactions, unless exempted.

At a high level, the monetary thresholds are as follows:

  • the acquirer (and connected entities) and the target (and connected entities) have combined Australian annual turnover of at least $200 million, and either:

o    the target (and connected entities) has Australian annual turnover of at least $50 million; or

o    the transaction is worth at least $250 million; or

  • the acquirer (and connected entities) has an Australian annual turnover of at least $500 million and buys a target (which together with connected entities) has an Australian annual turnover of at least $10 million; or

  • for serial or creeping acquisitions in the previous 3 years:

    • the acquirer (and connected entities) and the target (and connected entities) have combined Australian annual turnover of at least $200 million and the cumulative turnover from acquisitions supplying the same goods or services in the last 3 years is at least $50 million; or

    • the acquirer (and connected entities) has an Australian annual turnover of at least $500 million and the cumulative turnover from acquisitions supplying the same goods or services in the last 3 years is at least $10 million; and

in either case, the Australian annual turnover of the target is at least $2 million.

This means that previous unnotified transactions where the target has less than $2 million in turnover can become notifiable if multiple transactions in aggregate in a 3 year period exceed the above thresholds.

Process and timing

The new regime introduces three review phases:

  • Phase 1: Initial review within 30 business days (fast-tracking is possible in 15 days for low-risk deals);

  • Phase 2: More detailed review taking up to 90 business days where competition concerns arise; and

  • Public Benefit Phase: If the ACCC rejects or approves a transaction with conditions in Phases 1 and 2, the notifying party can choose to make a public benefit application. The Public Benefit Phase can take up to 50 business days.  

The ACCC will maintain a public Merger Register, publishing non-confidential summaries and decisions. This means strategic communication and confidentiality planning will be more important than ever.

Filing Fees

Notifications will now attract significant tiered fees, depending on the transaction value:

  • Notification waiver application: $8,300;  

  • Phase 1: $56,800;

  • Phase 2:

    • Transaction value up to $50 million: $475,000;

    • Transaction value between $50 million to $1 billion: $855,000; and

    • Transaction value over $1 billion: $1,595,000.

Waiver Update

Presently, applications for a waiver are not possible until 1 January 2026 at the earliest.

However, Treasury has recently released an exposure draft determination on the waiver process for the new regime.

The proposed waiver process will be the avenue for businesses to seek a waiver from the notification requirement under the new regime in respect of a notifiable transaction.

The public may provide feedback to Treasury about the proposed waiver process until 16 September 2025 before the process is finalised.

Feedback to Treasury on the exposure draft can be submitted here.

Practical tips for businesses

  • Consider opting in now: The current voluntary clearance process will remain an option until 31 December 2025, but time is short. Any transaction still under informal review at that date will need to be resubmitted under the new regime. To avoid this, the ACCC has indicated that any informal notifications under the voluntary regime should be lodged by 30 September 2025. Cleared notifications during the transitional period do not require refiling in 2026.

  • Don’t rely on the old informal process: Any informal clearance still in progress at 31 December 2025 will need to be re-notified under the new system.

  • Budget for fees and timing: These new requirements add cost and complexity - build both into your deal schedule.

  • Watch cumulative deals: Serial acquisitions could now fall within the thresholds under the creeping acquisition rules.

  • Engage early with the ACCC: Pre-lodgement discussions with the ACCC may reduce uncertainty for complex or time-sensitive transactions.

  • Update deal documents: Consider adding conditions precedent and risk allocation provisions specifically tied to mandatory notification and clearance under the new regime.

  • Manage public disclosure: Prepare non-confidential summaries carefully as details will appear on the ACCC’s Merger Register.

Next steps

These reforms will fundamentally change how deals are executed in Australia. Early planning is essential to avoid costly delays or disruptions.

Contact our Commercial team to discuss how these changes could affect your transaction strategy and what steps you can take now.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.

 

contact

Suzanne Howari

Senior Associate
E sxh@bwslawyers.com.au
P 02 9394 1072

 
Compliance & Corporate, Corporate & CommercialLauren CantAmanda Comelli, Suzanne Howari