The transitional period for the ACCC merger regime has begun and the notification rules are final. Are you ready?

The transitional period for Australia’s new merger control regime began on 1 July 2025; Treasury has published the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Determination); and the Australian Competition & Consumer Commission (ACCC) has published an updated version of its Merger Process Guidelines.

What you need to know

Although the obligation to notify the ACCC of an acquisition that meets the notification thresholds does not take effect until 1 January 2026, acquirers are now able to notify proposed acquisitions on a voluntary basis under the new regime.

Voluntary notification under the new regime may be advisable if a transaction will not be completed in 2025 and there is not enough time to obtain informal clearance in 2025; otherwise, the transaction may need to be re-notified under the new regime.

The Determination, which sets out the rules governing when the notification obligation applies, includes material changes compared to the draft determination, and provides some clarity on a range of pressing practical issues raised during consultation. However, it does not modify the key features of the new regime, which will capture vastly more deals and involve a more public, more burdensome, less flexible and often longer process than the current informal merger regime.

Key takeaways

• Filing fees remain substantially higher than comparable jurisdictions but Phase 2 fees are now tiered by transaction value. The fee payable to the ACCC for a Phase 1 review remains a flat fee of $56,800 but the fees for a Phase 2 review have changed from a flat fee of $952,000 to a tiered fee structure that increases according to the transaction value, ranging from $475,000 to $1,595,000. The Phase 2 fees are still high compared to other jurisdictions. The fees for a notification waiver application ($8,300) and public benefit application ($401,000) remain as originally proposed, and acquirers with aggregate revenue of less than $10 million remain exempt from paying fees.

• Revenue calculation for the notification thresholds has been somewhat simplified. The concept of ‘GST Turnover’ (a tax-related metric) has been replaced with ‘Australian revenue’ for the purposes of assessing whether the acquisition exceeds the notification thresholds. An entity’s Australian revenue is its sales to customers in Australia in its most recently ended financial reporting period, calculated according to applicable accounting standards. This aligns the Australian regime more closely with international comparators, which should simplify the filing analysis for global transactions. Where it is “not reasonably practicable” to attribute revenue to an asset being acquired, 20% of the market value of that asset will be treated as the relevant ‘revenue’.

• The exceptions applicable to land acquisitions have been expanded. The Determination supplements the exceptions applicable to land acquisitions, including by: broadening the scope of the exception for land acquisitions by land management and development businesses; adding an exception that avoids the need to renotify a subsequent acquisition of a legal or equitable interest in land if an initial acquisition of an equitable interest in the same land by the same acquirer(s) has already been notified (e.g. an agreement for lease or option to acquire land); and confirming that acquisitions of units in a real estate investment trust will be exempt if the only non-cash asset of the trust is property, and that property is held for the purpose of buying, selling, leasing or development. There is also a new exception for sale and lease-back arrangements.

• The filing forms remain largely unchanged. The information requirements for short and long-form notifications have been finalised and remain largely unchanged. The requirements to provide, for example, board documents dating back three years and third-party market share data remain but a requirement to provide information about the sales process undertaken by the seller has been dropped. The Determination now provides the form that must be completed to make a public benefit application and sets out the requirements for applications to the Tribunal for review of an ACCC decision or determination. It also confirms the information that the ACCC must publish on its acquisitions register. Information about the notification waiver application process is yet to be published.

Fees payable to the ACCC

Fees for FY2026 payable by acquirers for the different stages of an ACCC merger review are set out in the table below, with the only change being a move from a flat fee for Phase 2 of $952,000 to a tiered fee for Phase 2 determined according to the transaction value. Fees will be indexed annually and not attract GST.

* Small businesses that have an aggregated revenues of less than $10 million are exempt from paying fees.

** Totals in this column exclude notification waiver and public benefit applications.

The use of transaction value-based tiers to calculate the Phase 2 fee goes some way to addressing concerns expressed by stakeholders that a flat fee would disproportionately affect parties to smaller transactions. However, the fees are still high compared to filing fees in other jurisdictions, and the Phase 2 fee for large transactions ($1,595,000) is considerably higher than the originally proposed flat fee. The only comparable fees are those levied in the US, where filing fees also increase by transaction value (ranging from US$30,000 for acquisitions valued at less than US$149.4 million to US$2.39 million for acquisitions valued at US$5.555 billion or more), but do not differentiate between Phase 1 and Phase 2.

The result may be that some deals of more moderate values will not be pursued if the competition analysis is not straightforward, or will be shelved if a Phase 2 review looks likely or is commenced.

Notifiability and notification thresholds

An offshore acquisition will only be notifiable to the ACCC if the target shares or assets are ‘connected with’ Australia. The Determination has narrowed the definition of this term to only capture entities that carry on business in Australia, rather than the earlier proposal to capture entities that merely intend to carry on business in Australia. This is welcome, but we still anticipate that a range of foreign-to-foreign transactions with only incidental relevance to Australia will require notification.

The notification thresholds, which determine whether an acquisition must be notified (see our previous article), remain the same. However, the Determination makes some important changes that affect their application:

• Australian revenue. The concept of ‘GST Turnover’ has been replaced with the more workable concept of ‘Australian revenue’, which is the gross revenue attributable to transactions or assets within Australia or transactions into Australia, in the most recent 12-month financial reporting period determined in accordance with applicable accounting standards. According to the explanatory statement, this is intended to limit the revenue calculation to that derived from sales to customers in Australia. This is much simpler than ‘GST Turnover’, which refers to tax reporting information on a rolling 12-month basis. The new approach is more consistent with international analogues and will be simpler for most transaction parties, who will be able to rely on their internal or statutory reporting from their previous financial year to assess notifiability.

• Connected entity. This concept is used to determine the scope of the acquirer and the target groups (in the case of an acquisition of shares) for the purposes of calculating their Australian revenue. A number of important changes have been made that affect interpretation of the term:
  
  
  • The Determination has narrowed the definition of connected entity so that it no longer includes ‘associated entities’ (as defined in section 50AAA of the Corporations Act 2001 (Corporations Act)), which is a broad definition that captures relationships where one party has ‘significant influence’ over the other. As a result, an acquirer group includes the acquiring entity’s related bodies corporate (as defined in section 4A of the Competition and Consumer Act 2010 (Cth)) and other entities that are controlled by or control that entity (either alone or with one with one or more ‘associates’, within the meaning of the takeover provisions in Chapter VI of the Corporations Act, and where ‘control’ is defined according to s 50AA of the Corporations Act), or that are also controlled by the same upstream entity. The scope of the target group is determined on the same basis.
    
    
  • Where the acquirer is a special purpose vehicle, the definition of ‘connected entities’ captures entities that control the acquirer but have a legal obligation to exercise that control on behalf of third parties. This may be of particular relevance to investment funds, which often make acquisitions through special purpose vehicles, as the investment fund and the manager of the investment fund may be connected entities of the acquirer (notwithstanding that they have that control as fiduciaries for the investors in the investment fund).

• Revenue attributable to acquired assets. In the case of an acquisition of assets, the relevant Australian revenue is that of the seller that is attributable to the assets. Given the very broad definition of assets, it will not always be possible to attribute revenue to the assets being acquired. Therefore, the Determination has included a new rule that, where it is not reasonably practicable to attribute Australian revenue to an asset, the relevant amount will be 20% of the asset’s market value. New questions may arise, including as to how to value certain assets and when the attribution of revenue to an asset will not be reasonably practicable. However, this alternative method provides some helpful clarity for edge-cases where it may otherwise have been impossible to attribute revenue to assets, particularly where ‘assets’ includes equitable or legal interests that are not property. For example, the explanatory statement indicates that:
  
  
  • it may not be reasonably practicable to attribute Australian revenue to leases, in which case the Australian revenue would be calculated as 20% of the value of the lease agreement, being 20% of the rent payable under the entire term of the lease; and
    
    
  • where an asset was not used to generate revenue (such as vacant land), the Australian revenue will be zero (rather than 20% of the market value of the land).

• Accumulated acquired shares or assets revenue test: The Determination has narrowed the scope of this test, which considers the accumulated revenue of acquisitions made in the preceding three years. It will now only take into account acquisitions of businesses that are “predominantly involved” in the supply or acquisition of the same, substitutable or competitive goods or services, whereas previously it was sufficient that the business was “involved” in the same goods or services. This qualification will avoid the need to take into account Australian revenue from prior acquisitions only tangentially relevant to the acquisition being notified.

Exceptions for land acquisitions

The new merger regime is notable for its broad application to acquisitions of legal and equitable interests in land, including leases, agreements for lease, options to acquire an interest in land and land exploration licences. The Determination has confirmed, clarified and expanded the exceptions applicable to acquisitions of an interest in land in a number of important respects:

• Acquisitions by a land development or management business. The Determination clarifies that the exception applicable to land acquisitions by acquirers primarily engaged in “buying, selling or leasing” land also applies to those primarily engaged in “developing” land. It also clarifies that the requirement that the acquirer does not intend to operate a commercial business on the acquired land will not be disapplied by the acquirer carrying out activities that are ancillary or incidental to the primary purpose of buying, selling, leasing or developing the land. Examples of ancillary or incidental activities include property management, concierge and facilities management services.
  
  
• Acquiring a legal or further equitable interest in land after notifying the acquisition of an equitable interest in the land. There is a new exception that avoids the need for an acquirer to make multiple notifications for the acquisition of an equitable interest in land and the subsequent acquisition of a legal (or additional equitable) interest in the same land. Examples include: where a landowner enters into an agreement for lease with a lessee and subsequently enters a lease upon completion of development works; and the grant of an option to acquire land and the subsequent acquisition of the land upon the exercise of the option. The exception will apply provided the initial acquisition was notified to the ACCC under the new regime and the subsequent acquisition involves the same acquirer; materially the same land size; and, finally, the same proportion of ownership interest in the land. This exception will avoid duplicative merger filings on ‘two-stage’ land transactions, which would otherwise create uncertainty and add unnecessary costs and delays.
  
  
• Land entities. There is a new exception for acquisitions of an entity whose only non-cash asset is a legal or equitable interest in land and the land is held for the purpose of developing residential premises or operating a land development or management business (i.e. its purpose for holding the land falls within the scope of the first land acquisition exception above). This addition clarifies that acquisitions of units in a real estate investment trust that holds interests in land will, in most cases, be exempt from the requirement to notify the ACCC. 
  
  
• Extension or renewal of a lease and sale and leaseback arrangements. The Determination clarifies that the exception for the extension or renewal of a lease applies to all leases for land, not just land “upon which a commercial business is currently being operated”. Therefore, the exception now applies to land that is being held for future development. However, as under the draft determination, new leases, lease variations and lease renewals on materially revised terms are not exempt from notification. Sale and leaseback arrangements are now also exempt from the requirement to notify.

Other exceptions and clarifications

The draft determination included notification exceptions for a number of other situations, including internal restructures, acquisitions in the ordinary course of business (except of interests in land or patents), certain insolvency situations, rights issues, buy-backs, underwriting etc. The Determination adds to that long list, and establishes new exceptions for acquisitions:

• of shares or assets by providers of custodial or depository services in the ordinary course of their business, which will likely exempt acquisitions associated with the appointment of a professional trustee to administer a trust. However, given the definition of custodial or depository services, the exemption will not extend to regulated superannuation funds;
  
  
• “that occur by operation of law”. According to the Determination, such an acquisition “happens automatically based on principles set out in a law, without any specific action or agreement by the parties involved” and therefore includes, for example, a testamentary disposition under a will; and
  
  
• by operators of a clearing and settlement facility as well as the acquisition of derivatives and debt and securities-related acquisitions, unless the acquisition results in the acquisition of control of an entity or of all (or substantially all) the assets of a business.

The Determination confirms, with some minor changes, the designation of supermarket-related acquisitions by Coles and Woolworths as a class of acquisitions that must be notified to the ACCC regardless of whether the notification thresholds are met.

Forms

The new regime prescribes the information an acquirer must include in a notification to the ACCC, according to whether a short or long form notification is required (see our previous article). The Determination updates the proposed short and long form information requirements in a number of respects, including:

• The draft determination proposed to require parties to provide details of all of their acquisitions made in the previous three years. However, that requirement has been limited to acquisitions of a target involved in the supply of goods or services that are the same, substitutable for, or otherwise competitive with the goods or services in the current acquisition. As a result, parties will not need to disclose unrelated prior acquisitions to the ACCC.
  
  
• The catch-all requirement for parties to provide any information or documents that “would reasonably be considered” by a third party to be relevant to the ACCC’s assessment has been removed from the short-form notification. The equivalent obligation in the long-form notification has also been narrowed to the provision of information or documents that the party considers to be relevant.
  
  
• In the long-form notification, parties no longer need to provide information about the sales process undertaken by the seller and alternative proposals in the 12 months prior to the acquisition.

If the ACCC finds in Phase 2 that the proposed acquisition, “if put into effect, would, in all the circumstances, have the effect [...] of substantially lessening competition”, the acquirer may make a public benefit application to the ACCC. The Determination sets out the information requirements for such applications, including an up to five-page non-confidential summary of the public benefits and detriments, information and evidence supporting each public benefit identified, an analysis weighing the public benefits against the detriments, and any relevant documents not previously provided to the ACCC.

Acquisitions register

The ACCC’s acquisitions register, which records and publishes information relating to notified acquisitions, is now live. The Determination confirms the information that the ACCC must publish, and the timeframes within which it must do so (in most cases within one business day of the relevant event):

• Information published on receipt of the notification: the names of the parties; the ANZSIC class codes and titles (which are used as a standard means of classifying business activities by industry sector) relevant to the proposed acquisition; a summary of the proposed acquisition; the effective notification date; and the ACCC determination period end-date (which will be updated during the review if applicable).
  
  
• Other information published in the course of the ACCC review: a summary of each notification waiver application and the ACCC’s decision in relation to the application; the ACCC’s reasons for extending the determination period (if applicable); the current stage of the ACCC’s review (e.g. Phase 1, Phase 2 or public benefit assessment); a summary of a notice of competition concerns; a copy of the ACCC’s acquisition determination.

The ACCC can withhold from publishing or redact information or documents in certain circumstances, including where it is reasonably satisfied that the information or document is commercially sensitive and potentially detrimental to a party to the acquisition or a third party, or the information or documents include personal information.

Tribunal applications

The Determination provides additional detail about the requirements for applications to the Tribunal for the review of certain ACCC decisions under the new regime.

• Reviewable decisions. Applications in relation to reviewable decisions (for example, a decision that a notification or public benefit application is materially incomplete or misleading, contains misleading or false information, or is affected by a material change of fact) must be made within seven days of receiving notice of the decision, and include a copy of the ACCC notice of the decision and a statement of facts and issues on which the applicant will rely.
  
  
• Acquisition determinations. Notifying parties (or other persons allowed by the Tribunal) may apply to the Tribunal for review of an acquisition determination (i.e. the ACCC’s determination of whether an acquisition may be put into effect, including following a public benefit assessment). Applications for review must include a summary of the material findings of fact, economics, and law in the acquisition determination and a concise statement in support of the application including principal contentions of fact, economics and law.

ACCC’s Merger Process Guidelines

The ACCC has published updated Merger Process Guidelines for the new regime. The ACCC describes the guidelines as an ‘interim version’ because it expects to update them as secondary legislation is finalised by Treasury, and based on experience during the transition period. However, the interim version provides several helpful clarifications for notifying parties:

• Pre-notification. To commence pre-notification engagement, notifying parties will be required to input basic information regarding the transaction to the ACCC’s acquisitions portal (which is currently under development). The ACCC encourages notifying parties to provide a draft notification at the same time to facilitate a more meaningful discussion about the transaction. However, the ACCC acknowledges that in straight-forward cases it may be sufficient to provide basic information and confirm the approximate timing for lodgement of the notification. Once the notification is lodged and any applicable fee paid, the ACCC will confirm receipt in writing and provide an effective notification date. The Merger Process Guidelines confirm the ACCC is not required to make an immediate decision regarding whether the notification is valid or complete, and may later determine that it should not be taken to have had an ‘effective notification date’ as insufficient information was provided.

• Pre-notification in bidding processes. The ACCC acknowledges that parties participating in a competitive bidding process are unlikely to be able to notify a proposed acquisition due to their inability to demonstrate the required mutual intention to enter into an agreement. However, the ACCC has indicated that, in cases where the acquisition is not “wholly speculative”, bidders may be able to engage in pre-notification in contemplation of a future notification or waiver application.

• FIRB application. FIRB applications will require parties to indicate whether their acquisition will be notified to the ACCC. For acquisitions that are not notifiable, the FIRB application will need to include a base level of information regarding the competitive effects of the acquisition, which will be referred to the ACCC by Treasury. The ACCC has indicated that, in circumstances where a notification is not required but Treasury or the ACCC identify competition issues based on information provided to FIRB, the parties may wish to voluntarily notify the ACCC under the new regime. As is currently the case, Treasury will not approve a FIRB application unless the ACCC has cleared the transaction (in the case of an acquisition notified to the ACCC) or provided a favourable assessment (where competition aspects are addressed in the FIRB application).

• Remedies. The Merger Process Guidelines confirm that any commitment or undertaking provided to the ACCC to implement a remedy must be accompanied by a detailed submission setting out how that remedy will address competition concerns. Unlike the current regime, the ACCC may initiate a remedies discussion and, where a remedy is offered by the parties, determine that an enhanced or different remedy is required and include that remedy as a condition to a determination. The ACCC will engage with the parties before making a determination containing that condition.

• Confidential information. The regime for requesting confidential treatment of information provided to the ACCC broadly reflects the approach under the current regime.