Australian Merger Reform Explained: Mandatory ACCC Notification From 2026

The Treasury's merger reform paper explains that a single system will replace the merger provisions in sections 50 and 50A of the Competition and Consumer Act 2010 and the current merger authorisation process. Today's regime is largely voluntary, and the paper describes stakeholder feedback that Australia's ad hoc process lags best practice in comparable countries.

How the new system will work

All mergers above notification thresholds will have to be notified to the ACCC and may not proceed until cleared. The ACCC will be the expert first-instance decision-maker. A merger may go ahead unless the ACCC reasonably believes it is likely to substantially lessen competition, including by creating, strengthening or entrenching substantial market power. If the ACCC does not decide within the set time, the merger will be permitted to proceed, and its decisions will be reviewable by the Australian Competition Tribunal.

The government expects most mergers either to fall below the thresholds or to be cleared quickly. Mergers raising no concerns may proceed within 30 working days, with a fast-track determination possible after 15 working days. Where concerns arise, the ACCC will carry out an in-depth assessment within a period of four and a half months. The ACCC will maintain a public register of merger reviews and publish reasons for its determinations.

Costs and safeguards

Mergers subject to review will pay cost recovery fees scaled to their complexity, which the paper says are likely to be in the range of $50,000 to $100,000, with an exemption for small business. The government decided not to adopt the ACCC's proposal that parties should have to satisfy the regulator that a merger is not likely to substantially lessen competition, but the satisfaction test will remain for approvals based on substantial public benefits.

What happens next

Treasury will consult on exposure draft legislation during 2024, including on the notification thresholds, and the system will be reviewed three years after it starts. For deal planning, the Australian merger reform means that transactions expected to complete in 2026 or later will need to factor in mandatory filing and waiting periods.

Sources

• The Treasury, Australian Government: Merger Reform, a faster, stronger and simpler system for a more competitive economy
• The Treasury, Australian Government: Merger Reform paper, 10 April 2024