AUSTRALIA Trends and Developments Contributed by: Mark Grime and George Lukic, Thomsons
Procedural gatekeeping and execution risk Procedural gatekeeping is becoming a defining fea - ture of the new regime. The practical question is no longer only whether a deal raises competition issues. It is also whether the parties can assemble enough evidence, early enough, to satisfy the ACCC’s fil - ing requirements and support the chosen pathway. In practice, that means transaction teams are doing more competition analysis before signing, not after. They are mapping overlaps earlier, testing aggrega - tion issues across portfolio companies, preparing internal documents with greater care, and building longer lead times for data collection and drafting. Par - ties are increasingly treating waiver applications as substantive advocacy documents rather than as an administrative formality. That front-end discipline is reshaping deal timetables and transaction strategy. The process now requires parties to engage earlier and more thoroughly, with clear procedural steps and defined review phases. Long-stop dates, regulatory co-operation obligations and risk-allocation provisions are being adjusted to reflect the possibility that a seemingly straightforward deal may need to restart through a formal notification process if the waiver pathway is not available. For auction processes, this can affect bidder credibility and execution certainty, particularly where one bidder has a more complicated overlap profile than another. The ACCC’s Acquisitions Portal has become central to this gatekeeping function. It standardises intake, structures the information the ACCC receives at the outset, and makes completeness and presentation more important than under the old informal system. It removes a degree of discretion parties once had in terms of shaping the competition narrative. The pub - lic register also adds a further strategic dimension. Publication within one business day of lodgement (or more technically, a filing being accepted) materi - ally changes the procedural risk profile. Competitors, customers, suppliers and the media can now identify transactions almost immediately, often before parties would previously have expected market awareness. Parties now need to align ACCC filing strategy with a public announcement strategy, investor messaging and stakeholder management. It has also increased the importance of anticipating third-party complaints
at the time of filing and the wording of transaction descriptions, the treatment of confidential information and the sequencing of external communications. To successfully navigate the ACCC’s formal intake process, deal teams must pivot from post-signing compliance to front-end execution. This includes mapping global revenue streams in a way that spe - cifically segments the location of Australian customers and end-users, and ensuring up-to-date records of all global bolt-ons, minority stakes and asset acquisitions completed by a corporate group or PE sponsor over the preceding 36 months. At a practical level, inves - tors need to assess the cumulative impact of their portfolio holdings and prepare for increased informa - tion requests. Strategic filing choices While the cost and timeline differentials make the waiver pathway the default starting preference for low-risk deals, the reality of an 8% non-approval rate introduces the risk of a procedural “restart”. Parties must now carefully assess whether to pursue a waiver or proceed with notification, balancing speed and cer - tainty. The new framework makes this decision more consequential, as each pathway has distinct impli - cations for timing and disclosure. For cross-border bidders competing for Australian assets, regulatory certainty is a commercial differentiator. The evidentiary burden for waivers is also high: appli - cations must affirmatively demonstrate no plausible competition risk, with detailed market and geograph - ic analysis. For example, a PE sponsor with multiple portfolio companies must map all potentially overlap - ping or vertically related activities in Australia. This is a non-trivial exercise for large, diversified groups. In high-stake settings, filing a comprehensive Phase 1 notification can demonstrate to a seller that a buyer has mapped overlaps, compiled the necessary data, and initiated a more definitive clearance pathway pro - viding greater regulatory certainty relative to the rea - sonably modest incremental information requirements attached to a Phase 1 filing. Early transactions illustrate how these choices are playing out in practice. Ampol/EG and Coles/Kalgoor - lie are useful public examples because both moved
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