ACCC to tighten its grip on anti-competitive merger deals

As you may have read, the Australian Competition and Consumer Commission (ACCC) has recently announced the introduction (from 1 January 2026) of a new compulsory merger notification and clearance regime, which is designed to better align Australia’s governmental review of potentially anti-competitive transactions with procedures which currently exist in comparable overseas jurisdictions. Whilst some of the details regarding the operation of the new regime – including applicable thresholds which will trigger the compulsory notification process – are yet to be finalised, the intension of the proposed changes is to create a stronger, simpler, targeted, faster and transparent merger control system, which will replace sections 50 and 50A of the Competition and Consumer Act 2010 (CCA) and the current merger authorisation process in sections 88 and 90(7) of the CCA.

The focus of the ACCC’s review is to determine whether a proposed transaction would be anti-competitive in nature. In that regard, the ACCC will be required to clear a transaction unless it has a “reasonable belief” that it would, or would be likely to, substantially lessen competition. The scope of transactions which fall within the ACCC’s review powers will be amended slightly with the introduction of the new regime, which will apply where there is a “change of control in a business or asset” as opposed to the current ambit of CCA section 50 which applies to “any acquisition of shares or assets”.

Timeframes for ACCC review of merger applications will depend on the complexity of the transaction in question and its likely effect on competition. A tiered review system will apply, whereby:

• a “fast track” review can be completed within 15-30 working days for non-controversial transactions (most transactions fall within this category);
• other transactions will be subject to ACCC concluding its initial Phase I review (at which point clearance may occur) within 30 working days;
• if an in-depth Phase II review is required, that process must be concluded within a further 90 working days (at which point final determination must be given, with or without conditions); and
• if the ACCC makes a Phase II determination that a transaction would be likely to substantially lessen competition, parties may:
  • apply to the ACCC to clear the transaction on “substantial public benefit” grounds – in which case an indicative review timeline of 50 working days will apply; or
  • apply to the Australian Competition Tribunal for a review of the ACCC’s decision – in which case the Tribunal will have 60 working days from the date of appeal (which can be extended by a further 60 working days) to affirm, set aside or vary the ACCC’s decision.

Helpfully given the time-sensitive nature of business transactions (and similarly to the Australian government’s Foreign Investment Review Board (FIRB) regime), if the ACCC does not clear the merger within applicable review timeframes, a “constructive clearance” will be deemed to apply – meaning that the transaction in question will be permitted to proceed.

As mentioned above, various details regarding the operation of the new merger regime have yet to be confirmed and, in that regard, the Treasury will conduct further consultation in the lead-up to the introduction of that regime with a view to finalise matters such as notification thresholds (which may vary depending on industry and sensitivity, again much like FIRB), the form of merger notifications, the interaction between the new regime and hostile takeovers, and legislation to give effect to the regime. We will keep you informed as to any significant developments in that regard as and when they occur.

In the meantime, for more information about the proposed new ACCC merger review regime, please see Merger Reform Paper (treasury.gov.au).