From 2026, Australia’s merger control landscape is undergoing a significant transformation. For the first time, acquisitions meeting prescribed thresholds will require mandatory notification before proceeding.
As of 1 January 2026, parties are required to notify and seek approval from the Australian Competition and Consumer Commission (ACCC) if the acquisition crosses certain financial thresholds. The ACCC will then make a determination as to whether the proposed acquisition is in accordance with section 50 of the Competition and Consumer Act 2010 (Cth). That is, whether or not the acquisition will ‘substantially lessen competition’ in any market. Subject to this determination, the acquisition may not be able to proceed. A failure to notify the ACCC may result in the transaction being declared void.
The aims of the reforms are to align the Australian regulatory environment more closely with international best practice, enabling the ACCC to intervene earlier while aiming to preserve greater certainty for the parties. This said, the regime also introduces new procedural requirements and timing considerations, bringing with it the risk of potential exposure for boards and senior management, particularly for transactions involving foreign investment.
Mandatory notification and thresholds
Under the previous voluntary system, parties could elect whether to notify the ACCC of ongoing acquisitions. While informal guidance or merger authorisation was available, these were optional. Standstill measures did not exist. The 2026 reforms replace this with a statutory notification regime. Acquisitions that meet relevant thresholds must now be notified, and parties are prohibited from completing the transaction until formal clearance is granted.
The ACCC must now be notified where either of the following thresholds are met:
1. The combined revenue of the merger parties is at least $200 million and:
- the global transaction value is at least $250 million; or
- the cumulative Australian revenue from the target and any similar acquisitions in the last three years is at least $50 million.
2. The acquirer’s group’s Australian revenue is at least $500 million and:
- the target’s Australian revenue is at least $10 million; or
- the cumulative Australian revenue from the target and any similar acquisitions in the last three years is at least $10 million.
The Commonwealth Treasurer may also intervene where it is determined that certain classes of acquisitions will require notification in response to concerns regarding certain mergers.
Merger process and ACCC authorisation
The assessment process can comprise one or two phases. The first phase is a shorter, initial review, in which the ACCC can approve the acquisition (subject any conditions). If the assessment triggers some concerns, the process may move to a longer review under a second phase.
Following review, under the revised regime, the ACCC may:
- grant its approval to the transaction;
- grant approval, subject to certain conditions; or
- prohibit the acquisition.
Key to the ACCC’s determination will be whether in the ACCC’s view the transaction, should it proceed, would substantially lessen competition. In applying this test, the ACCC will assess whether the merger would ‘create, strengthen, or entrench a substantial degree of market power’. Significantly, this test includes a retrospective review that takes into consideration the cumulative effect of earlier acquisitions over a three-year period. This measure aims to target serial or creeping acquisitions that could collectively diminish competition over an extended period.
Previously, the majority of merger investigations and determinations by the ACCC were not published. Under the new regime, all notified acquisitions, the subsequent ACCC determinations and the ACCC’s reasoning for those determinations are publicly available. This may mean that over time merger parties will have a better gauge of how a particular transaction will be received by the ACCC. In the shorter term, there have also been some concerns as to the timing and capacity of the ACCC to meet its obligations under the regime.
While statutory timelines aim to provide a degree of certainty, complex mergers, particularly involving digital, multi-market, or foreign-investment elements, may take longer. This means transaction planning must now factor in for ACCC clearance timelines, the preparation of submissions and potential related negotiations. Since 1 July 2025, a ‘transition period’ was announced wherein parties could notify in advance of the 1 January 2026 start date. Due to the risk of a deal being declared void, a significant number of notifications have been received and it is reported that this is causing a delay in processing times.
Other key points
- Foreign Investment and the Treasurer – transactions involving foreign investors still remain subject to oversight by the Foreign Investment Review Board (FIRB) and the Commonwealth Treasurer. Notifications to FIRB and the ACCC may be submitted concurrently.
- Review and oversight – parties dissatisfied with decisions by the ACCC may still have avenues for review through the Competition Tribunal or the Federal Court.
- Penalties – any failure to notify the ACCC or proceeding without approval can lead to penalties for both corporations and individuals. For corporations, penalties can be up to $50 million, three times the benefit or 30 percent of turnover during the breach period. For individuals, penalties can be up to $2.5 million.
Key Takeaways
The 2026 reforms signal a new era of merger control in Australia. Under the new regime, it is important that boards and parties to mergers contemplate the new merger rules and obligations as a part of their transaction timelines, accommodating the ACCC notification requirements and response timeframes as they have so done in the past with FIRB.
For further guidance on navigating the merger regime and your obligations, please contact our Corporate and Commercial team.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
