AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
7.3 Confidentiality The 2026 regime prioritises transparency. Upon for - mal lodgement, the fact of the notification and a high- level summary of the transaction are published on the Acquisitions Register (unless strict exceptions for highly sensitive hostile takeovers apply). Information regarding Notification Waivers will not be published until after the ACCC has issued a decision. The ACCC is legally obliged to protect submitted commercial- in-confidence information, ensuring that business secrets, granular pricing data, and strategic plans remain strictly confidential and shielded from com - petitors. Information over which confidentiality claims are made should be clearly identified and justified in the notification. 7.4 Co-Operation With Other Jurisdictions The ACCC is deeply integrated into the global anti - trust community and co-ordinates closely with the US DOJ/FTC, the European Commission, the UK CMA, and the New Zealand Commerce Commission (NZCC) on cross-border transactions. To facilitate specific, detailed discussions about a transaction’s competi - tive overlaps or global remedy packages, the ACCC requires the merging parties to provide explicit confi - dentiality waivers. Providing these waivers is standard practice to align global review timelines. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Parties dissatisfied with an ACCC administrative deci - sion (eg, a prohibition, a rejection of proposed remedies or the imposition, scope or nature of any conditions imposed by the ACCC) can appeal to the Australian Competition Tribunal. This is a limited “merits review” where the Tribunal re-evaluates the economic facts and the law that forms part of the evidentiary record established during the ACCC’s investigation (with lim - ited discretion to admit new material such as updated economic modelling or expert reports). The Tribunal can affirm, set aside the ACCC’s decisions and sub - stitute with its own unconditional clearance, vary the conditions imposed or refer the matter back to the ACCC for reconsideration with directions.
The Federal Court of Australia’s jurisdiction is now strictly limited to judicial review to assess whether the Tribunal has made a fundamental error of law or breached procedural fairness, rather than re-litigating
the commercial merits of a transaction. 8.2 Typical Timeline for Appeals
An application for Tribunal review must be lodged within 14 calendar days after the ACCC publishes its formal statement of reasons on the public Acquisi - tions Register. Tribunal merits reviews are expedited by statute and must generally be completed within 90 calendar days, though complex matters involving vast economic evidence may see extensions. As the administrative decision-making regime only com - menced on 1 January 2026, there is limited precedent regarding appeals under the new framework, though the Tribunal has historically shown a willingness to overturn the ACCC on complex economic definitions. 8.3 Ability of Third Parties to Appeal Clearance Decisions Under the 2026 mandatory regime, third parties have a direct statutory right to appeal an ACCC clearance decision on its merits to the Tribunal. To lodge an appeal, a third party (eg, a competitor, supplier, cus - tomer or industry association) must demonstrate that they have sufficient interest or standing in the matter. The Tribunal will assess whether a third party’s com - mercial interests or the broader competitive dynamics of their market are materially impacted by the ACCC’s decision to clear a transaction. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements Australia operates a stringent, separate FDI regime under the Foreign Acquisitions and Takeovers Act 1975 (FATA). Foreign persons must generally notify FIRB and receive a “no objection” notification before acquiring substantial interests in Australian entities (often triggered at 20%), agricultural land, or sensitive national security businesses. FIRB assesses transac - tions against a broad “national interest” test, encom - passing national security, taxation compliance, and the character of the investor.
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