Australia's new merger regime: it’s not getting any easier!
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Australia’s new mandatory and suspensory merger clearance laws came into effect on 1 January 2026. In the lead up to that date, some important changes were made to the ministerial determination that sets out how the new laws work in practice. These changes were informed by the ACCC’s experience during the voluntary notification period and submissions from industry bodies. On 18 December 2025, the Government formally introduced those changes in the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 (‘Amended Determination’).
In this article, we provide an update on the changes to the regime and highlight what aspects of the Determination:
- have been pushed pack until 1 April 2026; and
- commenced as planned on 1 January 2026.
What has been pushed back to 1 April 2026?
The new control thresholds
Ordinarily, subject to s 51ABS of the Competition and Consumer Act 2010 (Cth) (‘the Act’), an acquisition of shares that does not result in the acquirer gaining ‘control’ is not required to be notified to the ACCC. However, the Amended Determination introduces new notification thresholds for share acquisitions even if they do not result in control. These notification thresholds will apply to transactions completing from 1 April 2026 and are set out in the table below.
| Type of body corporate | What triggers notification |
| Unlisted bodies corporate not widely-held | Voting power moves from 20% or below to more than 20% |
| All bodies corporate | Voting power increases from 20% or more to 50% or more |
| Where the principal party[1] already controls the body corporate prior to the acquisition | Voting power of someone moves from 20% or below to more than 20% |
| Where the principal party does not gain control before or after the acquisition | Voting power moves from below 20% to 50% or more |
New thresholds for discrete asset acquisitions
The Amended Determination also sets out new notification thresholds for acquisitions that do not comprise all, or substantially all, of the assets of a business (‘discrete asset acquisitions’). If such an acquisition completes from 1 April 2026, notification will be required if:
The acquirer group’s Australian revenue is ≥ $200 million and the global transaction value is ≥ $200 million;
or
- The Australian revenue of the acquirer group is ≥ $500 million and the global transaction value is ≥ $50 million.
What is still commencing on 1 January 2026?
The core elements of the regime will proceed as scheduled on 1 January 2026. We have previously written about the notification thresholds here.
The core notification thresholds
From 1 January 2026, acquisitions of shares or assets "connected with Australia" that result in a change of control must be notified to the ACCC where certain monetary thresholds are met, unless an exemption applies.
The Amended Determination repealed earlier provisions which provided that for asset acquisitions where it is not reasonably practicable to attribute the Australian revenue of a target to the asset, then the revenue attribution will be assessed as 20% of the market value of the asset. Instead, where the assets comprise all or substantially all of the business, the standard notification thresholds will apply. For asset acquisitions where that is not the case, interim measures will apply until 1 April 2026 (as described below).
A summary of the monetary thresholds are set out below:
Acquisitions resulting in large or larger corporate groups
| The combined Australian revenue of the acquirer and target (including connected entities*) is ≥ $200 million. AND The Australian revenue of the target (including connected entities) or the Australian revenue attributable to the assets acquired (where all or substantially all of the assets are being acquired) is ≥ $50 million. OR The global transaction value is ≥ $250 million. |
Acquisitions by very large corporate groups
| The Australian revenue of the acquirer (including connected entities) is ≥ $500 million. AND The Australian revenue of the target and its connected entities or the Australian revenue attributable to assets acquired (where all or substantially all of the assets are being acquired) is ≥ $10 million. |
Creeping or serial acquisitions**
| The combined Australian revenue of the acquirer and target (including connected entities) is ≥ $200 million. AND The cumulative Australian revenue from acquisitions by the principal party to the acquisition (including connected entities) in the last three years is ≥ $50 million, where the acquisition predominantly involves the same or substitutable goods or services. |
The Australian revenue of the acquirer (including connected entities) is ≥ $500 million. AND The cumulative Australian revenue from acquisitions by the principal party to the acquisition (including connected entities) in the last 3 years is ≥ $10 million, where the acquisition predominantly involves the same or substitutable goods or services. | |
Acquisitions of discrete assets (i.e not all or substantially all of the business)
|
If the acquisition takes place between 1 January 2026 and 31 March 2026, then the acquisition must be notified if: The combined Australian revenue of the principal party (and its connected entities) is ≥ $200 million and the global transaction value is ≥ $250 million.
|
*Connected entities is an entity that is a related entity of the first entity or is a controlled entity of another entity. The revenue of the transaction parties and their ‘connected entities’ needs to be taken into account.
Note that transaction value is the greater of the consideration paid for and the market value of the acquired shares and assets.
| |
Furthermore, the definition of ‘connected entity’ has been narrowed by the Amended Determination to exclude entities that solely provide minority shareholder protection rights to another entity. This is defined under s 1-4 of the Determination to include rights that:
- are consistent with those typically accorded to minority shareholders to protect their financial interests as investors; and
- are reasonably appropriate and adapted to achieve that purpose; and
- do not give the minority shareholder power to control or influence the company’s board, appointment or termination of senior managers or the company’s financial and operating policies.
Exemptions
An acquisition will not be notifiable under the new regime if an exemption applies. There are a number of exemptions for notification which include land exemptions, financial market exemptions, and other exemptions.
The Amended Determination makes a number of updates and attempted clarifications to the exemptions under the new regime. One notable change is the introduction of an exception for land acquisitions if the acquisition is undertaken ‘in the ordinary course of business’ (subject to any targeted notification requirements such as those that apply to supermarkets).
Explanatory materials state that this exemption is meant to cover ‘routine acquisitions’ of a legal or equitable interest in land, such as the acquisition of an interest in land for the purpose of an office or headquarters, the acquisition of office towers for the purposes of commercial property investment, or a property development company acquiring land to develop residential or commercial property.
Other changes include:
- Exempting quasi-land acquisitions in certain circumstances;
- Expanding the class of exempt acquisitions made by a person acting in an external administration capacity;
- Changes to exemptions for acquisitions in relation to derivatives, foreign exchange contracts, debt instruments, money lending, financial accommodation and security interests;
- Clarifying exemptions for acquisitions in relation to nominees and other trustees; and
- Expanding exemptions to include acquisitions by superannuation entities (e.g. the transfer of members’ benefits between superannuation entities).
Notification waiver applications
In addition to the new thresholds, the Amended Determination also sets out the requirements and process for notification waiver applications. These largely reflect the drafting from the earlier consultation. This will allow parties to an acquisition to make a request to the Commission to relieve them of notification obligations that would otherwise be applicable.
The waiver application requirements include a prescribed form with accompanying information and documents, and a fee of $8,300. The Commission must make a determination within 25 days of receiving the application.
Special confidentiality provisions apply for:
- Surprise hostile takeovers: Information or documents relating to the bidder’s notification are not to be included on the acquisition register until the bidder notifies the Commission that the bid has been made public.
- Voluntary transfers in the financial sector: Similarly, information or documents related to the waiver application are not to be included on the acquisition register until the Commission makes a determination regarding the waiver request.
What this means for your business
While a number of these changes are welcome, there will inevitably be debate (and some uncertainty) about how the new rules apply in practice. We recommend that careful thought be given to the competitive impacts (if any) of the proposed transaction in seeking to apply the new laws in a purposive manner. To the extent that uncertainty remains, it may be worth engaging with the ACCC on an informal basis early on in the process. Over time and as the ACCC makes and publishes more decisions, the position will hopefully become clearer.
For more information or further guidance on this topic, please contact Thomas Jones, Matthew Bovaird or Dylan McGirr.
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[1] ‘Principal Party’ is defined under s 51ABI of the Act as the person who acquires the shares, assets or determined thing. ‘Control’ for these purposes is as defined in s 50AA of the Corporations Act 2001 (Cth) as modified by s 51ABS(2) of the Act.