AUSTRALIA Trends and Developments Contributed by: Scott Colvin, Warren Scott and Lachlan Speirs, Archer Scott Lawyers
The substantive question the regulator asks is whether a transaction would substantially lessen competition – a test that now expressly extends to acquisitions that create, strengthen or entrench a substantial degree of market power. That formulation signals particular attention to consolidation in already concentrated sectors, and to the acquisition by large incumbents of smaller or emerging rivals. Investors in areas that have drawn regulatory interest – including digital platforms, supermarkets and retail, healthcare and essential services – should expect closer review, and should prepare a competition narrative that addresses entrenchment as well as any direct overlap. A central feature of the new system is the notification waiver. For acquisitions that clearly raise no competi - tion concern, parties can apply to the ACCC for a waiver that, if granted, removes the obligation to noti - fy, offering a faster and less burdensome route than a full notification. Choosing between a waiver applica - tion and a Phase 1 notification has quickly become one of the first strategic decisions in a deal. The early figures bear this out: in the regime’s first quarter, to 31 March 2026, the ACCC reported receiving 50 notifica - tions and 108 waiver applications, clearing 39 matters in Phase 1 and moving two to Phase 2, while meeting its commitment to decide around 80% of acquisitions within 20 business days. A second effect is on deal structuring and risk alloca - tion. Conditions precedent, long-stop dates and the allocation of regulatory risk between buyer and seller are now central negotiating points in Australian share and asset sale agreements, as they have long been in larger cross-border deals. Parties are debating who bears the risk of a clearance that is delayed or refused, whether the buyer must accept remedies through so- called “hell or high water” obligations, and how break fees and reverse break fees should be calibrated. Sell - ers in competitive auctions increasingly screen bid - ders for regulatory deliverability, not merely on price. In practical terms, this changes how deals are run from the very first conversation. • Earlier competition analysis: a credible view on whether a deal is notifiable or a candidate for a
waiver, and on its substantive risk, is now needed at the term-sheet stage rather than after signing. • Tighter conduct discipline: integration planning and information exchange before clearance, sometimes called “gun-jumping”, carry real risk, so clean-team protocols and conduct guidelines matter. • Aggregation awareness: serial and “creeping” acquisitions and bolt-on roll-ups can be captured even where any single transaction looks small, which bears directly on buy-and-build strategies. • Co-ordinated approvals: an ACCC approval or waiver is a separate requirement from foreign investment approval, so inbound investors must run the two workstreams in parallel, since one does not substitute for the other. At the level of transaction documents, the regime is driving more elaborate regulatory provisions. Sale agreements increasingly specify the standard of effort a buyer must use to obtain clearance, the extent to which it must accept divestitures or behavioural commitments, and the consequences if clearance is not obtained by the long-stop date. Ticking fees that compensate a seller for a prolonged clearance period, reverse break fees payable if approval fails, and detailed co-operation and information-sharing covenants are becoming familiar features. Allocating these risks well at the drafting stage is now a core part of protecting deal value. Private equity and roll-up acquirers feel this most acutely. Buy-and-build strategies (a staple of mid- market private equity and of franchising consolidation) depend on executing a series of smaller acquisitions quickly. The aggregation rules mean that a programme of bolt-ons can attract scrutiny that no individual transaction would, so sponsors are now mapping their pipeline against the regime before the first deal rather than after the third. The change is also felt well beyond large, obviously contentious mergers. Because the thresholds are financial and objective, mid-market transactions that raise no real competition concern can still require notification, adding cost and time to deals that would previously have closed without regulatory contact. For acquirers pursuing several transactions, the cumula - tive compliance burden is material, and building noti -
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