A new era of merger control in Australia comes into effect from 1 January 2026. Despite the legislative framework for
the regime being passed by parliament more than a year ago, some key features of, and changes to, the new regime
have been subject to late change and the final form of the regime has only crystallised just before it comes into
effect. There will be teething issues, areas of continued uncertainty, and the potential further refinements in
2026.
For now, it is essential to understand where the regime – and particularly the scope and operation of the
notification thresholds and the exemptions from notification – have ultimately landed.
The MinterEllison team has previously provided details about the key notification thresholds, exemptions,
and changes proposed by the
government shortly prior to commencement. This final update ahead of the new regime commencing:
- Summarises the notification thresholds under the new Australian regime, including key threshold concepts.
- Outlines recent threshold changes including for discrete asset acquisitions, and issues related to control and
minority interests.
- Revisits the key exemptions to notification, including recent changes made by the government.
- Sets out process issues, including recent guidance regarding the operation of the waiver mechanism.
- Explains areas where further changes are expected, and key takeaways for businesses and their advisers.
The original objective of the government was to introduce a system that is faster, stronger,
simpler, more targeted and more transparent. At this stage, while the new regime will involve greater transparency
and provide the ACCC with visibility of more transactions, is the regime’s complexity casts doubt over those goals
of speed and simplicity. Businesses should carefully prepare and ensure that transaction timelines account for the
regime, including new features such as ACCC pre-notification engagement.
What key changes do I need to be aware of?
The sections below are designed to provide a detailed overview of where the regime landed. This includes a series of
last-minute changes to the regime implemented in the final weeks of 2025 shortly before the regime comes into
effect. Further detail is set out below, but in summary the amendments to the thresholds and exemptions include:
- The expansion of various property and banking & finance exemptions to account for feedback from
stakeholders.
- Specific thresholds for discrete asset acquisitions that will come into effect from 1 April 2026.
- Additional voting power thresholds (overriding control exemptions) that will also come into effect from 1 April
2026.
- Adjustments (albeit limited) to seek to clarify the application of the regime to minority interests.
What acquisitions need to be notified?
The new regime applies to the acquisition of shares and assets. The regime is broad – significantly, an asset
includes any kind of property, a legal or equitable right that is not property, and specifically includes certain
real estate and IP interests. There are also specific provisions dealing with interests in unit trusts, managed
schemes and partnerships. The result is that the scope and operation of the new regime will extend beyond
conventional M&A activity.
(a) Acquisition of shares
An acquisition of shares will need to be notified where the target is ‘connected with Australia’ and where any of the
following three thresholds are met:
- Economy wide threshold: The combined Australian revenue of the merger parties (including the
acquirer and its connected entities, and the target and its ‘connected entities’ being acquired) is at least
A$200 million and either:
- Australian revenue of the target and its connected entities being acquired is at least A$50 million; or
- the global transaction value is at least A$250 million.
- Large acquirer: The Australian revenue of the acquirer and its connected entities is at least
A$500 million (a large acquirer), and the target and its connected entities being acquired have Australian
revenue of at least A$10 million.
- Cumulative acquisitions: The combined Australian revenue of the merger parties (including the
acquirer and the target and their connected entities) is at least A$200 million (or A$500 million for a very
large acquirer), and the cumulative Australian revenue from acquisitions that predominately involve the same or
substitutable goods or services over three years is at least A$50 million (or A$10 million for a very large
acquirer). A de minimis ‘small acquisition’ exception to this threshold excludes targets with
(b) Additional control notification gateways
For the acquisition of shares, the regime includes a control exemption. The effect is that notification is not
required where the acquirer does not obtain control (or already had control). ‘Control’ involves the capacity of one
entity to determine the outcome of decisions about the other entity’s financial and/or operating policies, based on
the practical influence (rather than formal rights). Importantly, however, the regime extends the concept of control
so that a party is taken to control the other if they and their ‘associates’ jointly have that capacity (even if the
acquirer does not have control on its own).
Despite this control exemption, from 1 April 2026, notification will also be required where (i) the monetary
thresholds are met, and (ii) where the acquisition results in the acquirer’s voting power increasing:
- from 20% or below (including from zero) to more than 20%, or
- from below 50% to 50% or more, irrespective of whether the acquirer obtains or already had
control.
These notification gateways rely on the concept of ‘voting power’ under Australian corporations law. This looks to
the votes held by the acquirer together with its associates, divided by total votes. The 20% / 50% thresholds are
designed to provide notification ‘bright lines’, requiring notification when material influence and majority control
are achieved.
In relation to Chapter 6 entities (being listed or widely held entities), there are further obligations which are
designed to avoid acquisitions in these entities falling through residual gaps. There is also a ‘safe harbour’ for
acquisitions of less than 20% in a Chapter 6 entity.
Taken together, the practical effect of these additional ‘voting power’ notification gateways is:
- acquisitions of certain minority or ‘non-controlling’ interests will be notifiable where monetary thresholds are
met (unless an exemption applies); and
- it is possible that acquisitions of shares in a target may be notifiable at several points in time (e.g.
crossing 20% voting power, where practical control is obtained, and when voting power reaches 50% or more).
(c) Asset acquisitions
The new merger control regime is not limited only to traditional M&A activity, either by way of share or asset
acquisition. Provided that the notification thresholds are satisfied, it also extends to the general acquisition of
‘assets’ (including a single asset), which is a concept broadly defined to include any kind of property, or a legal
or equitable right that is not property, and there is no requirement for there to be any transfer of market position
with the acquisition of the assets.
The original notification thresholds largely treated share and asset acquisitions in the same way. Changes have now
been made following consultation, particularly to address concerns regarding the complexity of attributing revenue
to assets for the notification threshold purposes.
In relation to asset acquisitions, the following thresholds will apply:
- From 1 January to 31 March 2026:
- If the asset acquisition is of all or substantially all of the assets of a business, then the Australian
revenue of the target will continue to be relevant in accordance with the thresholds applying to shares as
set out above.
- If the asset acquisition does not involve all or substantially all of the assets of a business (i.e. it is a
‘discrete’ asset(s)), then if the Australian revenue of the acquirer (and its connected entities) is at
least A$200 million, notification will be required where the transaction value is at least A$250 million.
- From 1 April 2026 onwards:
- If the asset acquisition is of all or substantially all of the assets of a business, then the Australian
revenue of the target will continue to be relevant in accordance with the share thresholds above.
- If the asset acquisition does not involve all or substantially all of the assets of a business (i.e. it is a
‘discrete’ asset(s)), then notification will be required if:
(i) the Australian revenue of the acquirer (including its connected entities) is at least A$200 million and
the transaction value is at least A$200 million; or
(ii) the acquirer is a very large corporate group, such that the Australian revenue of the acquirer (and its
connected entities) is at least A$500 million and the transaction value is at least A$50 million.
(d) Key concepts that guide the notification triggers
The notification thresholds rely on several key concepts which include the following:
- Entities are connected entities if they are related bodies under the Act, if one controls the other (including
joint control with associates), or they are both controlled by a common entity.
- A person is an associate of another for merger control purposes if (i) the parties’ control each other or
are jointly controlled by a common entity, or (ii) the parties have, or propose to, enter an agreement for
the purpose of controlling or influence the composition of an entity’s board or the conduct of its affairs,
or (iii) the parties act, or are proposing to act, in concert in relation to an entity.
- In practice, the broad concept of ‘associates’ will draw in ‘connected entities’ (and thereby capture
revenue) from entities that may not otherwise be included as part of general financial reporting. This may,
for example, include minority interests, joint venture arrangements, and voting or shareholder agreements
that result in parties acting as associates in relation to an entity.
- This issue is now moderated by a new minority shareholder protection carve out to connected entities that will
exclude some (but not all) minority holdings. It excludes an entity from being a connected entity of the
acquirer where the acquirer only has minority shareholder protection rights that meet the following criteria:
- the rights are consistent with the rights that are normally accorded to minority shareholders in order to
protect their financial interests as investors (for example, protections from changes to a company’s
constitution or capital, or the liquidation, sale or winding up of the company, or rights to information
consistent with a minority shareholder’s investment, and board representation or observer rights);
- the rights are reasonably appropriate and adapted to achieving the purpose of protecting a minority
shareholder’s financial interests, in their capacity as an investor, and not for some other purpose; and
- the rights conferred on a minority shareholder do not include any of the following: (i) the capacity to
control or practically influence (whether alone or in concert) the composition of a company’s board; (ii)
the capacity to control, practically influence or prevent (whether alone or in concert) the appointment or
termination of senior managers; or (iii) the capacity to control or practically influence (whether alone or
in concert) decisions about a company’s financial and operating policies.
- Transaction value refers to the greater of the following: (i) the sum of the market values of
all the shares and assets being acquired, or (ii) the consideration for all the shares and assets being
acquired.
- It is also necessary for a target to be connected with Australia. The concept of a necessary
Australian connection focuses on the target either carrying on business in Australia or, in the case of an asset
acquisition, where those assets are being used in or forming part of a business that is carried on in Australia.
It is important to note that this concept has been broadly construed by Australian courts. It is, for example,
unnecessary to have a presence in Australian in order to be found to be carrying on business in Australia.
- For the thresholds requiring reference to Australian revenue, this is to be calculated
according to the entity’s gross revenue that is: (i) determined in accordance with ‘accounting standards;, (ii)
for the entity’s most recently ended 12-month reporting period; and (iii) attributable to transactions or assets
within Australia, or transactions into Australia. Note that the above adjustments for minority shareholder
protections may impact the relevant entities that are being considered when assessing the extent of Australian
revenue. Note also that there is no revenue attribution under the regime (e.g. it may be necessary to include
all revenue of a JV).
In relation to minority shareholdings, it is important to understand the practical effect of the new
carve out noted above:
- First, the minority shareholder carve out is relevant when aggregating Australian revenue of the acquirer and
its connected entities in order to assess whether the monetary thresholds are met. However, it does not apply to
Chapter 6 entities (listed or widely held entities) and is therefore only relevant unlisted bodies corporate
that are not widely held.
- Second, the minority shareholder carve out is relevant in relation to the new 20% and 50% voting power gateways
that are noted above. When calculating voting power, the votes of an entity that is taken to not be an associate
because of the minority shareholder carve out are to be disregarded.
- Third, no change has yet been made in the legislation to introduce this minority shareholder carve out to the
concept of joint control with associates for the purposes of the control exemption. This means there continues
to be uncertainty regarding the scope of the regime including, for example, the prospect of joint control by
virtue of arrangements including shareholders agreements.
Exemptions from notification, and where notification is mandated
The regime includes a series of nuanced and technical exemptions where notification is not required, and some
targeted thresholds where notification is mandated. The most recent changes have generally broadened the operation
of the exceptions.
(a) Exemptions from notification
The exemptions are technical in their operation and care is required to ensure that a transaction will satisfy all of
the requirements of an exemption. In some cases, the exemptions have not been formulated in a way that properly
accounts for common structures or transaction steps, which may mean that a transaction will not satisfy all elements
of an exemption.
Exemptions from notification include the following:
- Financial markets, lending: There are exemptions relevant to a range of financial markets,
instruments and lending activities that are low risk but may otherwise be caught by the breadth of the regime.
This includes:
- An acquisition of security interests. There have been several key changes to this
exemption. First, the concept of a security interest has been expanded to include a wider concept under the
Personal Properties Securities Act, a charge within the meaning of Australian corporations law or a lien or
pledge, or an interest under a credit support agreement. Second, it applies generally to taking a security
interest, whether or not this involves a change of control. However, if a scenario involves enforcing a
security interest (compared to taking it), then the exemption only applies if the acquisition as a
consequence of enforcement occurs in the ordinary course of the party’s business of providing lending on
standard commercial terms, and that the transaction occurred on an arm’s length basis.
- Debt instruments and lending, including an acquisition of shares or assets by way of
instruments that include, among others, bonds, notes, debentures, loan notes, commercial paper etc. It
applies whether or not it is conditional on future events, so it covers letters of credit and bank
guarantees. The regime has also been extended to specifically cover loans. The concept of a loan is broadly
framed and is intended to cover established loan market practices. It also covers debt interests.
The exemption had previously been subject to a carve out so that it would not apply if the acquisition by
way of debt instruments and lending resulted in the acquirer either gaining control of the entity or
substantially all assets of a business. The carve out has been narrowed so it only applies to control.
- Asset securitisation arrangements. This is intended to cover the full lifecycle of
securitisation structures. It is designed to catch structures that are economically, structurally or
technologically similar to securitisations. Explanatory materials that accompanied recent changes indicated
that this is intended to capture arrangements including: (i) securitisation, covered bond and asset-backed
lending; (ii) factoring, invoice financing or other asset financing structure; (iii) arrangements backed by
an exposure to receivables; or (iv) similar financing, funding or risk distribution arrangements.
Unlike other financial and lending exceptions, the asset securitisation exemption is not subject to the
control exception. This is because these forms of securitisation arrangements do not confer meaningful
control over a business. There is therefore no need to assess control in this scenario.
- The operation of financial market infrastructure, including clearing and settlement
facilities, as well as certain transactions including contracts to close out or a right of set off under a
contract.
- Fundraising-related exemptions including rights issuance, dividend reinvestment and share
bonus plans, activities relating to underwriting, and share buy-back arrangements.
- Acquisitions of derivatives or shares / assets that result from derivatives. This exemption
applies provided the acquisition will not allow the acquirer to control an entity that it did not previously
control. Recent amendments have also extended this to cover derivates relating to physical
commodities and also to foreign exchange contracts.
- There are other exemptions that apply to low-risk scenarios including:
- To protect external administrators and similar statutory appointments.
Recent amendments have expanded this this concept to cover other, similar statutory functions such as acting
responsible entities, statutory / judicial / external managers and acting trustees under various statutory
regimes.
- Recent amendments have introduced a specific superannuation exemption. This covers two
types of acquisitions involving superannuation entities. First, the transfer of member benefits between
superannuation entities – e.g. an acquisition of shares or assets by a successor trustee including
because of a successor fund transfer. Second, acquisitions that are the result of a new trustee being
appointed – e.g. as a result of a deed of resignation and appointment leading to a trustee change.
- Other acquisitions that occur by operation of a federal, state or territory law.
In addition to the exemptions noted above, the regime does not apply to acquisitions that occur in the
ordinary course of business. This is a longstanding concept under Australian competition law that
has been considered by courts in other contexts. Care is required, particularly in circumstances where the current
operation of the regime means that the failure to notify a notifiable acquisition will result in it being
automatically being void under Australian law. Some straightforward examples include businesses purchasing inventory
to sell, firms acquiring consumables, and manufacturers acquiring production inputs.
Notifying the ACCC, including availability of a waiver
The ACCC notification process includes different filing ‘pathways’ depending upon the likely complexity of the
review. While the ACCC has published guidance about the circumstances in which each filing pathway will be
appropriate, in cases where there is uncertainty, the ACCC may press for a particular pathway during
pre-notification engagement (if that occurs) or simply decline a waiver application (if the ACCC considers it should
be the subject of a notification).
A summary of each filing pathway is outlined below. Notably, while monetary-based thresholds are used to determine if
a filing is required, once a view is formed that notification is required, market concentration and the need for
data is then relevant when selecting a filing pathway.
(a) Seeking a waiver from the ACCC
The ACCC can grant a waiver from the need to notify an acquisition. A waiver application will be appropriate where
the acquisition does not give rise to any realistic competition concerns – either when the thresholds are met
(and no exemption applies) or where there is some doubt about whether the thresholds are met or an exemption
applies. If granted, a waiver allows the parties to complete the acquisition without proceeding through the full
notification process.
The ACCC has issued interim guidance about the circumstances in which a waiver may be suitable.
At this stage, this suggests that a waiver will be relevant for only the most straightforward of applications
including, for example, where there is low combined market share – reference is made to only 5%. Importantly,
a waiver application is not viewed as a ‘step’ in the process, and parties will need to consider the risk of undue
delay that warrants proceeding to a full filing.
To seek a waiver, parties must submit a notification waiver application to the ACCC before completing the acquisition
(with a corresponding condition precedent to be included in transaction documents) and pay the required waiver fee
(currently A$8,300). While the ACCC has up to 25 business days to consider a waiver application (if it fails to do
so within time, it is deemed to be declined), it expects to make decisions more quickly for simple matters. The
waiver process is public, with waiver applications listed on the ACCC’s acquisitions register. Once the waiver is
received, the parties can proceed to complete the acquisition.
(b) Notifying a proposed acquisition
Lodging a notification requires completing and filing a prescribed form and payment of a filing fee, and this must
occur before the acquisition completes (with a corresponding condition precedent to be included in transaction
documents).
There are prescribed forms for pre-notification engagement, a shortform filing, a longform filing and a public
benefits application. The ACCC has released guidance explaining expectations on the use of short versus longform
notifications. These forms require considerable information and documents to be provided, even for a shortform
filing (although the requirements are more extensive for longform filings). Market concentration thresholds are
relevant to this decision:
- A shortform is likely to be appropriate for straightforward applications that are unlikely to raise concern.
- The ACCC has set relatively low thresholds where it has indicated that it will generally expect a longform
application to be used. A longform is suggested for acquisitions involving combined market share of 20-40% with
an increment of 5% or more, or market share of 40% or more with an incremental increase of 2% or more.
Once a valid notification is submitted (and after any pre-notification engagement is complete), the ACCC has 30
business days to conduct its Phase 1 assessment and determine whether the acquisition raises competition concerns. A
decision to approve a notified acquisition cannot be made before 15 business days from the effective notification
date. If concerns arise, the ACCC can extend the review into a detailed Phase 2 investigation for an additional 90
business days. There are various ways in which the timeline can be extended, including the parties offering
remedies, and there are certain remedy gates (after which remedies cannot be offered).
As the regime is suspensory, parties cannot complete the acquisition until they receive ACCC clearance (and a 14-day
waiting period has lapsed to allow for any applications for review to be made to the Australian Competition
Tribunal). Completing a notifiable acquisition before obtaining clearance will result in the acquisition being void
and will expose the parties to substantial civil penalties.
(c) Other administrative issues including filing fees
Current filing fees are substantial, at A$8,300 for a notification waiver and A$56,800 for a standard notification.
There are additional significant fees of between A$475,000 – A$1,595,000 for a Phase 2 review depending on the
size of the acquisition (e.g. $475,000 if the transaction value is
Key takeaways and likely further changes
It is essential that businesses involved in potential domestic transactions or global deals with an Australian
connection undertake early consideration of Australia’s new merger control regime. This includes not only
traditional M&A activity, but also asset acquisitions. With the risk of transactions being automatically being
void ab initio under Australian law where there is a failure to notify, parties need to exercise care in determining
whether ACCC engagement (notification or waiver) is or might necessary. They will also need to ensure that
transaction timelines and conditions precedent are structured to properly account for the regime, including, for
example, managing risk associated with a protracted review and the material fees associated with a Phase 2 review.
Businesses should also expect the regime to shift further in the coming months. For example:
- At present, targeted industry-based notification thresholds apply only to supermarkets. We expect this to expand
in due course, as the ACCC targets other sensitive industries including, for instance, pathology and radiology.
- The government has announced that it will take action to address the automatic ‘voiding’ aspect of the regime.
While an alternative has not yet been announced, we expect legislative changes in the new year to address this
issue, and potentially other aspects of the regime including the approach to joint control.
In short, the regime will continue to evolve. Businesses will need to be mindful of, and account for, further
changes.
Businesses should seek advice and plan ahead to ensure that merger control and other regulatory clearance processes
in Australia are proactively managed to deliver an efficient outcome. MinterEllison’s merger control experts are
working with clients to understand the implications for transaction pipelines, and are already navigating waiver,
short and longform filing pathways.
