AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
of board papers, strategic presentations, valuation models, and detailed economic narratives explain - ing market dynamics and counterfactual scenarios. The Public Benefit Application (the “Phase 3” pathway) • Criteria for use: This pathway cannot be used for an initial filing. It is strictly reserved for transactions where the ACCC has already conducted a com - petitive assessment and either formally rejected the merger or approved it with unacceptable condi - tions. The legal test shifts: parties concede the competition issues and must instead prove that the “public benefit outweighs the public detriment”. • Information requirements are distinct from the competition forms and include the following. (a) Public benefit narrative and evidence: Detailed, evidence-based descriptions of the nature, magnitude, and likelihood of the claimed ben - efits (eg, environmental sustainability, job crea - tion, export growth, or cost efficiencies). (b) Transaction specificity: Parties must provide economic or factual evidence proving that these benefits are strictly “transaction-specific” and would not arise without the merger. (c) Beneficiary data: Concrete estimates of the number and identity of the beneficiaries, prov - ing how the benefit will be shared with the broader Australian community (and not merely retained by shareholders). (d) Expanded peripheral documents: Alongside the final Share Purchase Agreement, parties must submit all related peripheral agreements (eg, non-competes, master service agree - ments, IP licensing, and leases) to allow the ACCC to assess the full structural reality of the newly proposed entity. Unlike many jurisdictions, the ACCC does not require formal notarisation or apostillation of transaction documents, corporate charts, or the notification form itself. The notification must include a formal declara - tion signed by an authorised officer or director of the notifying party. This declaration legally attests to the truth, accuracy, and completeness of the filing. Pro - viding false or misleading information carries severe Administrative Formalities for Filing Notarisation not typically required
civil pecuniary penalties and allows the ACCC to immediately revoke any clearance granted. Powers of attorney (POAs) not required A formal, notarised deed of power of attorney is not required if an external legal representative (such as a law firm) is lodging the notification via the ACCC’s online portal on behalf of the acquiring or target enti - ty. Instead, the notification forms require the explicit identification of the legal representative and their con - tact details. Translation requirements The ACCC conducts its reviews exclusively in English. The ACCC’s guidelines mandate that all foreign-lan - guage documents must be accompanied by a certi - fied English translation. Failure to provide complete English translations at the time of lodgement will result in the ACCC declaring the notification “materi - ally incomplete”. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification If a notification is incomplete, the ACCC will reject it, and the statutory clock will not commence. If a notify - ing party supplies inaccurate or misleading informa - tion, they face severe civil penalties under the CCA and potential criminal prosecution under the Crimi - nal Code Act 1995 (Cth). The ACCC also possesses the statutory power to revoke any clearance that was granted on the basis of materially false or misleading information, rendering the completed transaction void retroactively. 3.7 Review Process The ACCC’s administrative review is strictly time- bound: • Waiver Notification – The ACCC has up to 25 busi - ness days to assess the application (but early 2026 data indicates the ACCC is averaging a decision in just 11–12 business days). • Phase 1 – All formal notifications begin in Phase 1. The statutory review period is 30 business days. The ACCC cannot legally clear a transaction before business day 15 (to allow for mandatory third-party market consultation). If the ACCC identifies no significant issues, it will clear the transaction before
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