From 1 January 2026, a mandatory merger control regime will apply in Australia, replacing the existing informal clearance system and removing the merger authorisation pathway.
The new regime introduces a compulsory notification system for a broad range of acquisitions, a statutory review timetable, prescribed filing fees, and significant penalties for completing notifiable transactions without approval. From 1 January 2026, parties may also apply to the ACCC for a notification waiver, when a party is of the view the acquisition is unlikely to meet notification thresholds or raise competition concerns. If granted, the waiver removes the obligation to notify that acquisition.
A voluntary notification mechanism has been in place since 1 July 2025 to enable businesses to manage the transition into the new regime. It has been reported as recently as 10 November 2025 that the ACCC has received twice as many voluntary notifications in the first four months of the stricter regime than expected, which could lead to an overwhelmed system when the regime becomes mandatory.
Acquisitions that are informally cleared between 1 July 2025 and 31 December 2025 will be exempt from notifying under the new regime provided the transaction completes within 12 months of clearance.
The ACCC will allow the merger to proceed if it is satisfied that the acquisition will not have the effect, or be likely to have the effect, of substantially lessening competition in any market (s50 of Competition and Consumer Act 2010 (CCA)). Even where acquisitions do not meet the monetary thresholds under the new regime, acquirers should consider notifying the ACCC voluntarily of any transaction if there is a likelihood it will have substantive competition implications in any given market.
Businesses should take into account the same factors that a court would evaluate when assessing whether a proposed acquisition is likely to substantially lessen competition, including:
- market concentration and barriers to entry;
- removal of a vigorous or effective competitor;
- vertical integration effects;
- ability and incentive to increase prices or margins;
- availability of substitutes, including import competition;
- innovation, growth and product differentiation; and
- countervailing power of customer or suppliers.
Who Must Notify?
An acquisition must be notified to the ACCC before completion where the following are satisfied (s51ABO CCA):
- the acquisition comes into effect on or after 1 January 2026;
- it involves the acquisition of assets, or control of an entity through a share sale;
- certain monetary thresholds are met;
- the shares or assets are connected with Australia; and
- the acquisition does not benefit from an exemption.
These items are summarised further below.
Completing an acquisition does not necessarily require full transfer of legal ownership.
If notification is required, the acquisition is automatically stayed and cannot be completed until the ACCC issues a determination.
1. Acquisitions
The new merger regime will apply to a wide range of acquisitions. Pursuant to s51ABN of the CCA, the term acquisition is defined broadly to include any direct or indirect acquisition of shares in the capital of a corporate/body corporate or any assets of a corporation or a person (including interests in a partnership). Therefore, the regime extends to both partial and full acquisitions, ensuring that any transfer of ownership or control falls within its scope.
2. Control Threshold
In an acquisition of shares, a party is required to notify a transaction if it gives the party control of a body corporate. Control is defined broadly as the capacity to determine the outcome of decisions about the target’s financial or operational policies (s50AA Corporations Act 2001 (CA)).
If an acquisition does not result in the acquirer obtaining control, or the acquirer already controlled the body corporate before the transaction, notification is not required.
Section 51ABJ of the CCA creates a specific exemption for Chapter 6 entities under the CA (listed companies, unlisted companies with more than 50 members, and listed registered schemes). For these entities, notification is required only where the acquisition does not increase the acquirer’s voting power:
- from 20% or below to above 20%; or
- from above 20% to below 100%.
3. Monetary Thresholds
The primary test for notification is based on the revenue of the parties or total transaction value. The table below sets out the applicable monetary thresholds.
- Economy Wide Thresholds
| Economy-wide monetary threshold | General monetary threshold for serial/creeping acquisitions |
| Parties must notify a transaction to the ACCC if: the merger parties (acquiring and target company) including connecting entities have a combined Australian revenue of at least $200 million; and either:each of at least two merger parties (including their connected entities) has Australian revenue of at least $50 million; orthe global transaction value is at least $250 million. | Merger parties must notify a transaction to the ACCC if: the merger parties (acquiring and target company) including connecting entities have a combined Australian revenue of at least $200 million; andthe cumulative Australian revenue from acquisitions in the same or substitutable goods or services over the previous 3-years period is at least $50 million. |
| The serial/creeping acquisition threshold means that as at 1 January 2026, a party needs to consider acquisitions from 1 January 2023 onwards. If the acquisition is of a business with Australian revenue below $2 million, notification is not required. | |
- Very Large Acquirers
| Monetary threshold for very large acquirers | Very large acquirer threshold for serial/creeping acquisitions |
| Merger parties must notify a transaction to the ACCC if: the acquirer’s (and connected entities’) Australian revenue is at least $500 million; andthe Australian revenue is at least $10 million for each of at least two of the merger parties. | Merger parties must notify a transaction to ACCC if: the acquirer’s (and connected entities’) Australian revenue is at least $500 million; and the cumulative Australian revenue from acquisitions in the same or substitutable goods or services over the previous 3-year period is at least $10 million. |
4. Connection to Australia
The new merger regime applies broadly to acquisitions of shares or assets that are connected with Australia, subject to limited exemptions.
A share or asset will be regarded as connected with Australia if:
- in relation to a share, the company that issued the share must be carrying on business in Australia;
- if it’s an interest in another type of entity, that entity must be carrying on business in Australia; and
- for any other kind of asset, it must be used in, or form part of, a business that operates in Australia.
5. Exemptions from Notification
Certain acquisitions are excluded from the regime, these include:
| Ordinary course of business exception | Under section 4(4)(b) of the CCA, acquisitions made in the ordinary course of business are generally excluded from the definition of asset acquisitions. However, section 51ABN(2) CCA clarifies that this exclusion does not apply where the asset in question is land (or an interest in land) or a patent (or an interest in a patent). |
| Property exemptions | Under section 2-20 of the Competition and Consumer (Merger Notification) Determination 2025, several property related transactions are exempt from notification. These include: land development: acquisitions for residential development or businesses engaged in buying, selling, leasing or developing land;land entities: where an entity’s only non-cash asset is land held for the above purposes;lease renewals or extensions: automatically exempt;previously notified land interests: no re-notification required if an earlier agreement for lease was already notified;land development rights: treated the same as legal or equitable land interests; andsale and leaseback arrangements: exempt where control remains unchanged despite transfer of title. |
| Financial securities/restructures exemptions | Under sections 2-21 to 2-26 of the Competition and Consumer (Merger Notification) Determination 2025, acquisitions involving financial restructures or securities are exempt from notification. These include: administrators, receivers, and liquidators acting under s 9 CA; financial market infrastructure transactions (e.g. clearing, settlement, close-out);capital-raising activities such as rights issues, buy-backs, or underwriting; debt, lending, and security arrangements made to manage financial risk or provide funding; trustees and custodians acquiring securities in the ordinary course of their duties; and transfers by operation of law, where the acquisition occurs automatically on a legal event. |
Timeframe for Review
The ACCC’s merger assessment follows a staged statutory timeline, with distinct review phases, key decision points and opportunities for parties to provide information or remedies.
Filing Fees
The new regime imposes prescribed filing fees, which may vary by transaction value and review pathway.
| Action | Filing Fee (AUD) |
| Notify an acquisition | $56,800.00 |
| Phase 2 fee (payable 7 business days after the ACCC advice notification is subject to Phase 2) | $475,000.00 (for transactions valued at $50 million or less);$855,000.00 (for transactions valued at more than $50 million, but not more than $1 billion); and$1,595,000.00 (for transactions valued at more than $1 billion. |
| Apply for public benefit assessment | $401,000.00 |
| Apply for notification waiver (available from 1 January 2026) | $8,300.00 |
When calculating the monetary thresholds, Australian revenue refers to the gross revenue earned during the most recent 12-month financial reporting period from transactions or assets located within, or directed into, Australia.
Small Business Fee Exemption
A small business with aggregated turnover of less than AUD $10 million may be eligible for a fee exemption. This will be the case if:
- there is only one notifying party of the acquisition and that notifying party is a small business entity (within the meaning of the Income Tax Assessment Act 1997) for the income year in which the contract is signed; or
- there is more than one notifying party, and all the notifying parties are small business entities for the income year in which the contract is signed.
Further guidance on the definition of a small business entity can be found on the Australian Taxation Office website.
Consequences of Non-Compliance
If a notifiable acquisition is completed while stayed, that is, without first notifying the ACCC or before the ACCC has granted clearance, the transaction will be void under s45AZA of the CCA. Such conduct also constitutes a contravention of the CCA, exposing the parties to significant civil penalties under s79. Penalties may apply for:
- failing to notify the ACCC of a notifiable merger;
- proceeding with completion prior to the ACCC’s determination; and
- knowingly or recklessly providing false or misleading information to the ACCC or the Australian Competition Tribunal.
The maximum pecuniary penalty for each contravention is the greater of:
- $50 million;
- three times the benefit obtained from the conduct; or
- 30% of adjusted turnover during the breach period (being at least 12 months).
Considerations for Businesses
Businesses, whether frequent acquirers or not, should take proactive steps to ensure compliance with the new merger control framework. In particular, businesses should consider, amongst other things:
- maintaining a detailed acquisition register tracking all acquisitions made over a rolling three-year period, including, its revenue, the revenue of each target and the revenue attributable to the acquired assets;
- monitoring the lower notification thresholds applicable to very large acquirers, especially where serial or incremental acquisitions may trigger cumulative reporting obligations;
- assessing target revenues early in the transaction process to determine whether the proposed acquisition is likely to meet any monetary thresholds;
- incorporating clearance timelines into deal planning, allowing for both informal engagement with the ACCC and the statutory review periods;
- accounting for filing fees when preparing financial models or transaction budgets for deals expected to close after 1 January 2026; and
- collaborating with legal advisors to prepare up-to-date pro forma notification and waiver materials that streamline future filings.
At Bryks Lawyers, we have significant experience in advising on all aspects of acquisitions and disposals. Contact us today to see how we can assist you!
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