AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation The core merger control legislation in Australia is the Competition and Consumer Act 2010 (Cth) (CCA), specifically section 50 and Part IVA. This framework was fundamentally overhauled by the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth), which transitioned Australia from a volun - tary judicial enforcement model to a mandatory and suspensory administrative regime effective from 1 January 2026. This primary legislation is strictly operationalised by detailed legislative instruments that dictate notifica - tion thresholds, procedural requirements, and filing fees. The critical instruments are the Competition and Consumer (Notification of Acquisitions) Determination 2025 and the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No 1) Determination 2025, with the latter introducing highly technical changes that took effect on 1 April 2026. A further round of legislative refinement commenced with the introduction of the Treasury Laws Amend - ment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Bill 2026 on 2 July 2026 (the “July Bill”). If enacted, that Bill will make targeted adjustments to the operation of the new regime, including the consequences of non-notifica - tion, aspects of the control and associate framework, and the treatment of approvals that would otherwise become stale. Significant regulatory guidance is also provided by the Australian Competition and Consumer Commis - sion (ACCC), most notably the ACCC Merger Assess - ment Guidelines, the ACCC’s interim Merger Process Guidelines 2025, the ACCC Merger Reform: Frequent - ly Asked Questions, and specific interim guidance on the increasingly popular Notification Waiver process, which define the regulator’s day-to-day administrative expectations. 1.2 Legislation Relating to Particular Sectors Under the CCA, the minister possesses the power to designate specific sectors for mandatory notification regardless of general financial thresholds. Currently,
the major supermarkets (Coles and Woolworths) are subject to bespoke designations requiring them to notify any acquisition of a supermarket business or associated land. Beyond competition law, foreign investments remain governed by the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA), administered by the Foreign Investment Review Board (FIRB). The FATA typically requires foreign investors to obtain no-objection noti - fications for acquiring certain interests in Australian entities or land. While the ACCC and FIRB operate distinct regimes, FIRB delegates the “competition” limb of its national interest test to the ACCC and will generally not issue a no-objection notification until ACCC clearance is secured. Other relevant sector-specific ownership limits are included in the Financial Sector (Shareholdings) Act 1998 (Cth) (banking and insurance), the Broadcasting Services Act 1992 (Cth) (media), and the Telecommu - nications Act 1997 (Cth). 1.3 Enforcement Authorities The ACCC is the primary enforcement authority. Under the 2026 regime, the ACCC’s role has transitioned to the first-instance administrative decision-maker for all merger clearances. It conducts Phase 1 and Phase 2 reviews (as well as public benefit assessments) and holds the unilateral administrative power to permit, conditionally permit, or outright prohibit a transaction. The Australian Competition Tribunal (the “Tribunal”) serves as the appellate body, conducting limited “merits reviews” of the ACCC’s administrative deci - sions. The Federal Court of Australia’s role in merger control is now strictly confined to judicial review of the Tribunal’s decisions on points of law, and presiding over civil penalty proceedings brought by the ACCC for gun-jumping or procedural contraventions. Merg - er parties can no longer directly apply to the Federal Court for a pre-emptive or defensive declaration that a transaction does not substantially lessen competition.
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