From 1 January 2026, Australia’s new merger clearance regime goes live and it’s a game changer for M&A in Australia. Both local and international dealmakers will need to rethink strategy, timing and risk, as ACCC notification becomes mandatory for certain acquisitions linked to Australia, even where there’s no competitive overlap.
While some key details are still being finalised, the message is clear: the rulebook for deals in Australia has changed. Here’s what you need to know, now.
10 Key Aspects of the New Regime
- The regime is mandatory and suspensory for notifiable deals (see below for notification requirements) that complete from 1 January 2026, with the ACCC as the primary decision maker.
- The types of acquisitions covered are far broader than under current regime.
- Notification thresholds are low and apply even if there is no competitive overlap between the buyer and seller, with a 3-year lookback.
- A notification waiver process is being offered by the ACCC for low-risk deals from 1 January 2026. This will largely be a public process.
- Detailed, very prescriptive up-front information requirements are going to require huge front-end effort by merger parties.
- Fixed mandatory timelines for ACCC determinations are a positive, but these will be subject to clock stops and extensions.
- Substantial and cumulative filing fees depending on transaction value are payable on filing and even if a deal falls over. It’s a user pays system.
- Transparency and publicity will increase due to the ACCC’s acquisitions register and ACCC decisions being published.
- With limited exceptions, there will be no confidential review of deals by the ACCC outside of pre-notification engagement. The ACCC routinely expects engagement ahead of filing for all deals.
- There can be no notification without deal certainty (eg. heads of agreement, preferred bidder status), but the ACCC can consider waiver applications where an acquirer is actively engaging in a competitive bid process. Whether this exists will be a question of fact.
When is notification required?
From 1 January 2026, notification of an acquisition to the ACCC is mandatory if each of the following applies:
- it is an acquisition of shares or assets[1]
- the shares or assets are connected with Australia
- in the context of an acquisition of shares, immediately after the acquisition is put into effect, the acquirer obtains control of the body corporate[2]
- the acquisition meets any of the notification thresholds[3]
- no exemption is available[4] or no waiver has been granted by the ACCC.[5]
Significant penalties apply if a transaction requiring notification is not notified to the ACCC before completion. Further, the transaction is void.
Notification Thresholds (assessed as at the contract date)
| Acquisitions resulting in large or larger corporate groups |
|
| Acquisitions by very large corporate groups |
|
| Supermarket acquisitions |
Under specified conditions, Coles or Woolworths (and connected entities) acquiring:
|
What are the practical implications for deals?
Higher compliance costs + risk for more deals: The new regime creates new legal and commercial risks and higher compliance costs for a wide range of transactions outside of classic “M&A” deals. The stakes are high as failure to notify can void transactions and lead to significant penalties.
Deal strategy must change: Buyers and sellers must assess merger risks early, every time, at the front-end of deals, to understand the implications for deal timing and deal execution.
More seller risk + buyer scrutiny: With more deals caught, the ACCC not reviewing multiple competitive bids and no confidential clearance being possible, sellers may need reverse break fees, and divestiture commitments. On the flip side, buyers will demand deeper due diligence.
Negotiation shifts: Expect robust discussion about filing fees and regulatory cost sharing.
Deal timelines will increase: Early ACCC pre-notification engagement is essential well ahead of filing. Whilst the ACCC is committed to making the regime work and expects to green-light 80% of deals within 15-20 business days, the ACCC can stop the clock on the statutory timeframes (or delay the clock starting). Even simple deals that are notifiable won’t be able to close until around 5 weeks post-filing (factoring in an appeal period).
Higher review risk: The ACCC as the primary decision-maker can escalate deals to a lengthy, costly Phase 2 review if it has competition concerns.
Updated conditions precedent: Modified clearance-related conditions precedent must be integrated into deal documentation that are framed as positive obligations, as well as cooperation obligations and exit rights.
Non-competes: Must be proportionate and necessary to protect goodwill otherwise they risk being declared unlawful.
Gun-jumping risk: A notifiable deal can’t be put into effect until it’s been cleared by the ACCC (or a waiver is granted), so make sure no there’s no integration ahead of this.
Increased challenge risk: There is greater scope for third-party complaints to disrupt deals by triggering reviews of ACCC determinations.
The Addisons Competition/Antitrust & Consumer Team is ready to help you navigate the new merger regime. Contact us for tailored, commercial advice that helps get your deals done.
You can download our current Addisons Merger Control Guide by visiting this link.
1 The regime covers a broad range of transactions including acquisitions of legal/equitable interests, or partial interests, in tangible/intangible assets or property, units in unit trusts and interests in managed investment schemes.
2 Changes are to be introduced to this control requirement. This will mean that acquisitions of certain types of shares will need to be notified irrespective of whether the acquirer obtains control (or already has control) – for example, acquisitions where voting power increases to above 20% or 50% in an unlisted company that is not widely held, or more than 50% in a listed or widely held company. Final details are expected to be released by Treasury in mid-December 2025 but the changes will not come into effect until 1 April 2026.
3 Changes are to be introduced to the notification thresholds for asset acquisitions. Final details are expected to be released by Treasury in mid-December 2025.
4 Acquisitions that are exempt from mandatory notification include: acquisitions of ≤20% of voting shares in Australian listed companies/unlisted widely held companies; internal restructures and reorganisations; ordinary business transactions (but not land, patents); certain types of land acquisitions including acquisitions for the purposes of developing residential premises; extensions or renewals of leases; certain routine acquisitions in clearing and settlement activities; and certain routine trading and fundraising and capital-raising activities. Further exemptions are currently being finalised.
5 From 1 January 2026, parties can apply to the ACCC for a notification waiver for low-risk transactions. In exercising its discretion on whether to grant a waiver, the ACCC will consider the information provided with the application and will also have regard to certain factors including whether the acquisition is likely to meet the notification thresholds and whether it is likely to have the effect of substantially lessening competition.
6 Disregard previously notified acquisitions; previous acquisitions where target group had < $2 million AU revenue; or previous acquisitions where target not connected with Australia. There is also an exemption to this serial/creeping acquisitions threshold where the current target group has < $2 million AU revenue.
7 Ibid.