AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
demands for unwinding or structural remedies. Under the regime as enacted on 1 January 2026, that con - sequence is coupled with automatic invalidity. Not - withstanding proposed changes to replace automatic voiding with a court supervised voidable model, the Australian suspensory obligation will remain a serious execution risk for global and foreign-to-foreign trans - actions with an Australian nexus. Given the regime is newly operational in 2026, the ACCC is highly motivated to demonstrate enforcement rigour and is expected to pursue immediate and public enforce - ment actions against any early gun-jumping violations. 2.14 Exceptions to Suspensive Effect There are no general statutory exceptions to the sus - pensory effect for standard M&A, private equity buy - outs, or public bids. However, the Notification Waiver effectively acts as a fast-track exemption mechanism. Parties can apply for a waiver for clearly benign deals (eg, combined market shares <5%, no nascent competition issues). The ACCC is statutorily required to determine a waiver within 25 business days, but early 2026 data indicates the ACCC is averaging a decision in approximately 11–12 business days. Once a waiver is granted, the suspensory obligation is extinguished. Notwithstand - ing proposals to recalibrate the consequences of non- notification, waivers remain commercially valuable because they provide timing certainty, reduce filing burden and mitigate residual execution risk. In genuine “failing firm” scenarios, the ACCC will typi - cally expedite its Phase 1 review, but the strict prohibi - tion on closing remains until that expedited clearance is formally issued. 2.15 Circumstances Where Implementation Before Clearance Is Permitted The ACCC is sceptical of global closing carve-outs (hold-separate or “ring-fencing” arrangements) designed to permit global closing before Australian clearance. The legislation prohibits the transaction from being “put into effect”. Unless the global trans - action mechanics are structured so that the transfer of the Australian-connected entity or assets is legally severed, entirely delayed, and strictly conditional on local clearance, global closing risks exposure to
severe gun-jumping penalties. It is recommended that parties engage with the ACCC early if contemplating such structures. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There is no statutory deadline to file a notification after signing an agreement. However, because the regime is suspensory, parties will typically file as early as pos - sible. Notification must occur, and clearance must be received, prior to closing. 3.2 Type of Agreement Required Prior to Notification A legally binding agreement is not a statutory requirement to notify. Parties can file on the basis of a good-faith intention to proceed, evidenced by a mature memorandum of understanding, a signed letter of intent, or a well-advanced draft term sheet. The ACCC requires sufficient certainty regarding the transaction’s perimeter and structural parameters to conduct a definitive market assessment. If the com - mercial terms evolve materially between the lodged term sheet upon which the filing was based and the final executed agreement, the ACCC can declare the original notification as “materially incomplete” or inac - curate. Public takeovers can be formally notified based on a public announcement rather than a definitive agree - ment, provided the offer includes strict regulatory conditions that prevent the legal transfer of shares prior to ACCC clearance. To manage hostile bids, acquirers can either utilise a specialised confidential waiver process for “surprise” takeovers before they are announced or file publicly using available pub - lic data, which may prompt the ACCC to compel the target to produce the required confidential material. These procedures have attracted criticism for being subject to various practical limitations and creating significant strategic challenges for bidders. 3.3 Filing Fees Filing fees are significant and increase with the com - plexity and value of a transaction. Under the 2025 Determination, the fee for an early Notification Waiver
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