AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
2. Jurisdiction 2.1 Notification
securing legal certainty and a statutory “safe harbour” against future challenges. 2.2 Failure to Notify The penalties for failing to notify (gun-jumping) under the new regime are significant. Under the regime as enacted on 1 January 2026, a notifiable transaction completed without ACCC approval is automatically void. However, the July Bill proposes to replace that auto - matic consequence with a court-supervised voidable model in which a non-notified acquisition is voided only if ordered by the Federal Court (upon applica - tion by the ACCC). If enacted, that change would reduce the current all-or-nothing invalidity risk, while preserving the ability of the ACCC to seek substan - tial civil penalties, injunctions and structural relief. It will also provide the Federal Court with an ability to impose other orders it considers desirable in the cir - cumstances. Automatic voiding will be retained for acquisitions that complete but have been notified and remain under ACCC review, blocked by the ACCC or are now subject to a stale ACCC approval. Non-noti - fied acquisitions that meet jurisdictional thresholds will remain stayed. The ACCC can seek substantial civil penalties in the Federal Court for a failure to notify a notifiable acqui - sition. Maximum penalties for corporations are the greater of: • AUD100 million; • three times the value of the reasonably attributable benefit obtained; or • if the benefit cannot be determined, 30% of the corporation’s adjusted turnover during the entire “breach turnover period”. While the mandatory regime is nascent, the ACCC is actively monitoring markets and has publicly indi - cated a zero-tolerance policy towards gun-jumping. Deal teams must observe the suspensory obligation as maximum penalties are a genuine risk for deliberate circumvention. Failure to obtain approval or taking steps to integrate prior to doing so, can also give rise to cartel risk. When
Under the regime that commenced on 1 January 2026, notification is strictly mandatory and suspen - sory. Transactions that satisfy the jurisdictional thresh - olds and control tests must be notified to the ACCC and cannot be put into effect until formal clearance is granted. Notification Waiver Process A prominent feature of the 2026 regime is the “Notifi - cation Waiver” process. For transactions that techni - cally satisfy the financial thresholds and control tests but are competitively benign (eg, zero overlap or neg - ligible market shares), parties can apply for an early waiver. If granted within the 25-business-day statutory period, this legally removes the obligation to submit a full notification. Exceptions are limited and technical Narrowly drawn statutory exceptions exist, primar - ily aimed at routine commercial conduct. Safe har - bours exist for certain land and property acquisitions, internal restructures with no change in control, and temporary holdings by administrators or underwriters. Additionally, certain acquisitions by financial institu - tions are exempt to ensure market liquidity and capital provision, alongside carve-outs for specific govern - ment-mandated acquisitions, and share purchases in entities governed by Chapter 6 of the Corporations Act 2001 (Cth) that stay below the 20% voting power threshold. The exceptions can be technical and reli - ance will be fact-specific. Voluntary notification Voluntary notification remains an available option for transactions that do not satisfy jurisdictional thresh - olds. The ACCC holds a “call-in” power to formally review any transaction that does not meet jurisdiction - al thresholds if it suspects a substantial lessening of competition. For sub-threshold transactions involving close competitors or concentrated markets, merger parties are recommended to undertake a more sub - stantive upfront competition analysis (as would have been previously done under the ACCC’s legacy infor - mal merger clearance regime) to determine whether a voluntary filing is appropriate for the purposes of
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