AUSTRALIA Trends and Developments Contributed by: Mark Grime and George Lukic, Thomsons
Conclusion The new system is workable but demands greater front-end discipline to manage significant evidentiary and procedural burdens. Early experience suggests that the regime is already changing transaction behav - iour in durable ways: timetables are longer at the front end, information gathering is more intensive, and risk allocation is being negotiated with greater specificity. Sector experience in infrastructure, healthcare, retail and other revenue-driven or locally concentrated mar - kets shows that the practical burden is highest where overlap analysis, serial acquisitions or public sensitiv - ity are difficult to assess quickly. The main lesson from the first wave of filings is that execution certainty now depends heavily on prepara - tion. Dealmakers should prioritise early competition analysis, robust evidentiary support, disciplined inter - nal information collection and careful risk allocation in deal documentation. They should also treat ACCC filing strategy, public communications and broader regulatory planning as linked workstreams rather than separate tasks. Ongoing monitoring of further pro - posed legislative refinements, ACCC guidance, pub - lished decisions and market surveys will be essential as practice develops and parties refine what a well- prepared filing looks like under the new regime.
explanations as to why public disclosure would be harmful. Parties should prepare for discovery risk at the time of filing. This means maintaining a clear record of what has been provided to the ACCC, who approved key statements, what data underpins mar - ket-share estimates, and how internal documents were selected and explained. The practical lesson is that merger filings now have a dual audience. They are directed to the ACCC, but they may later be read by courts, private litigants, counterparties and the media. Parties should there - fore treat the preparation of submissions, confidential - ity claims and public messaging as part of a broader litigation-risk exercise, not only a regulatory approval process. A co-ordinated disclosure strategy and dis - ciplined document management are now central tools for reducing the downstream risk created by detailed public statements of reasons. Mid - market and asset - light deals Parties may assume that a business with few Aus - tralian employees or assets falls outside the regime, only to find that revenue thresholds are met and the filing analysis is more complex than expected. This has been a particular issue for technology, healthcare services and other sectors where value is driven by contracts, data, brand or network effects rather than brick-and-mortar operations. The implication is that threshold analysis must focus on revenue and com - mercial activity, not only legal entity structure or asset footprint. For deal structuring, this means parties may need to build merger control diligence into transac - tions that would previously have been treated as too small or too offshore-facing to raise Australian filing issues.
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