Australia’s new merger control regime: early insights and implications for dealmakers

Australia’s new merger control regime has now been in effect for close to six months. While still early, and a range of teething problems will be worked through in time, there are early learnings from the operation of the new regime that are instructive for Australian and international dealmakers. 

A key overarching observation is that a range of cautious policy decisions in the design of the new merger regime have resulted in a regime that is highly conservative by international standards and, in some respects, over-engineered for the Australian economy. Influenced in part by the Australian Competition and Consumer Commission (ACCC)’s underlying policy concern that it was not being voluntarily notified of a range of problematic deals, the new regime features low monetary thresholds, a thin jurisdictional nexus, detailed and prescriptive information requirements, a minimum review period, and a post-approval waiting period before closing cannot occur. 

In totality, these features are driving substantial over-capture of deals that raise no real prospect of a competition concern and are causing substantial process friction. Particularly for cross-border deals with minimal connection to Australia, the result is often that the ACCC is one of the few global filing requirements and, in some circumstances, the ‘long pole’. 

Within the constraints of this conservative design, however, the ACCC has generally adopted a pragmatic approach – seeking to resolve and clarify emerging procedural issues and approving unproblematic transactions well within the statutory time limits. 

Early experiences with the new regime highlight a number of key practical learnings and structural features that are likely to persist and shape deal execution. 

Notifiability assessment can be highly complex

The drafting of the new regime leaves open numerous areas of ambiguity that often complicate notifiability assessments. These matters range from the ‘connected entities’ of the parties whose Australian revenues must be aggregated to determine notifiability, to when parties are regarded as ‘associates’ in assessing control, to the application of numerous vaguely defined exceptions. 

ACCC guidance on these issues is sparse and its decisions on waivers and notifications are typically brief and non-specific, contributing little to the development of a body of precedent to guide future notifiability assessments. In addition, the ACCC often takes a highly cautious approach to providing practical guidance in informal pre-filing discussions. 

The residual uncertainty results in not infrequent differences of opinion among counterparties and instances of deals being notified on an overly conservative and risk-averse basis. A provision that automatically voids transactions that are not notified (but should have been) is also contributing to that conservatism. 

Taken together, this uncertainty encourages a risk‑averse approach to notification, contributing to the broader pattern of over‑capture under the regime.

The jurisdictional nexus requirement is wafer thin

Under the new regime, the jurisdictional nexus for an acquisition to be notifiable in Australia is that the shares or assets are ‘connected with’ Australia, which is satisfied where a relevant entity or business is ‘carrying on business’ in Australia. Case law from other statutory contexts establishes the ‘carry on business’ test as a low threshold that can be met even where the target does not generate any revenue or have a physical presence, assets or employees in Australia. 

In the pharmaceutical sector, for example, there have been multiple deals notified to the ACCC only on the basis that the target has undertaken or plans to undertake a clinical trial in Australia, notwithstanding that it generates no Australian revenue and has no physical presence in the jurisdiction. Similar issues are arising regularly in technology deals, where many offshore businesses without a local presence will nevertheless have some Australian subscribers or users that can be argued to constitute a sufficient jurisdictional nexus. 

In practice, this is resulting in transactions being notified with tenuous connections to Australia.

Large number of acquisitions being reviewed by the ACCC

Low and uncertain monetary thresholds, a thin jurisdictional nexus, and the automatic voiding of non-notified transactions are together driving a large number of notifications under the new regime.  At the current run rate, the ACCC is likely to receive around 700 notifications this year – roughly double the 10-year average under the old regime and substantially above Treasury’s expectation of 300-500 notifications. 

The notification waiver process is evolving but shows promise

The notification waiver process, under which the ACCC can more quickly approve unproblematic transactions, is being used more extensively than initially expected. Treasury anticipated 50 applications in the first six months of 2026 (approximately eight per month), but the ACCC is to date receiving an average of one application per day. As of May 2026, notification waiver applications account for around 60% of all applications to the ACCC, indicating the extent of the over-capture of benign transactions. 

The ACCC’s decision-making on waivers has so far been prompt and well within the 25 business day (BD) maximum, with waivers being granted in 13 BDs on average and, in some cases, as few as four BDs. This offers a substantial time saving compared to a typical 6-10 week phase one clearance for notifications (which includes a pre-notification process, minimum three-week review, and a two-week post-clearance waiting period). However, the ACCC’s decision-making approach on waivers has at times been inconsistent, and in some transactions has departed from its own guidance, resulting in the waiver rejection rate being higher (at around 8%) than would be expected in a more established process. 

While the waiver process will likely settle into more predictable patterns over time, it currently requires a nuanced judgment call as to whether the potential time and cost saving compared to notification is worth the risk of wasted time and cost in an unsuccessful waiver process before being required to notify. 

Pre-notification is generally working well

Pre-notification engagement is a feature of the new regime that is not subject to any statutory time limits. We have seen varying degrees of pre-notification engagement so far, from very simple processes lasting a few days to multi-week processes, and even compulsory notices seeking information and documents and limited market consultations. 

While there are risks of the ACCC seeking to subvert statutory time limits by conducting substantive investigation and analysis during pre-notification, this does not, to date, appear to be occurring. Generally, pre-notification engagement has been effective in ventilating key issues and refining the ACCC’s information requirements prior to starting the short six-week statutory clock on a first-phase review. However, this front-loading of engagement has practical implications for transaction planning. Dealmakers and decision-makers should allow for an additional 1-4 weeks before most deals are able to get ‘on file’, in addition to the statutory timelines.   

Property-specific exceptions are leaving significant gaps

The property sector is one of the only sectors to have secured industry-specific exceptions in the new regime. However, even with a range of exceptions, property-related deals continue to account for a significant proportion of total notifications. Approximately 15% of ACCC filings to date (including both waivers and notifications) have related to property deals, often where the transaction extends beyond real estate assets to include shares or other business interests.   

Implications of Australia’s new merger control regime for dealmakers

Taken together, these early indicators suggest that the new regime is operating in a way that prioritises caution over efficiency, with conservative design settings driving both an expansion in scope and a material increase in process friction.

For dealmakers and decision‑makers, the immediate implication is clear: transaction planning increasingly needs to account for greater uncertainty around notifiability, a broader jurisdictional reach, more burdensome and invasive information requirements, and often longer timelines.