AUSTRALIA Law and Practice Contributed by: Alexander Danne, Roy Groom, Rohit Venkat and Georgia Summerhill, Clayton Utz
Merger Control The Competition and Consumer Act 2010 (Cth) estab- lishes a mandatory merger approval regime imple- mented by the Australian Competition and Consum- er Commission (ACCC). Under the new mandatory notification regime, which took effect on 1 January 2026, businesses must notify proposed acquisitions that meet certain thresholds to the ACCC and obtain approval before the acquisition can proceed. Proposed acquisitions and thresholds must be noti- fied as follows: • when a combined business has Australian revenue exceeding AUD200 million and either the target has Australian revenue exceeding AUD50 million or the global transaction value exceeds AUD250 million; • when large business with Australian revenue exceeding AUD500 million acquires a business with Australian revenue exceeding AUD10 million; and • in the event of serial acquisitions – eg, one busi- ness buys a another within a similar goods or ser- vices segment with cumulative Australian revenue of at least AUD50 million over a three-year period (or AUD10 million if the acquirer’s revenue exceeds AUD500 million). Note that the above is a summary, and does not include reference to connected entities of the parties, which are also relevant to threshold calculations. Foreign Investment and ACCC Approval Timelines Where the acquirer is a foreign person, FIRB approv- al under the FATA is required in accordance with the thresholds and processes described in 1.3 Foreign Investment Review Process . The standard FIRB review period is 30 days, extendible at the Treasury’s request or unilaterally for 90 days at a time by way of an interim order. ACCC merger approval varies in duration depending on the complexity of the transaction. A simple trans- action tends to be approved within 15–30 business days under a standard Phase 1 review However, more elaborate transactions requiring a Phase 2 review can take a further 90 days to be authorised.
Conditions can be imposed to address any “national interest concerns” identified by Treasury during the review process. Typical conditions relate to local board composition, operational asset control, data storage and access arrangements, tax compliance,
and ongoing compliance reporting. Protections for Foreign Investors
Foreign investors in Australia’s power industry benefit from a range of protections under bilateral investment treaties (BITs) and free trade agreements, including ChAFTA, KAFTA, JAEPA, AANZFTA and the Austral- ia–EU Free Trade Agreement. These instruments pro- vide access to domestic courts and, in certain cases, recourse to international arbitration through Investor- State Dispute Settlement (ISDS) mechanisms, offering protection against expropriation, discriminatory treat- ment and denial of fair and equitable treatment. Incentives for Foreign Investment in Renewable Energy The 2026–27 Federal Budget confirmed the Gov- ernment’s intention to attract foreign capital into Australia’s renewable energy sector through a pro- posed time-limited capital gains tax (CGT) conces- sion. Under the proposed Treasury Laws Amendment (Foreign Resident CGT Concessions for Renewable Energy) Bill 2026 (Cth), from the commencement of the legislation through to 30 June 2030, a 50% CGT discount would be available to foreign investors on the disposal of eligible renewable energy assetsor qualify- ing indirect interests. The discount is intended to apply to assets whose pri- mary purpose is generating, or directly facilitating the generation of, electricity from an eligible renewable energy source as defined in the Renewable Energy (Electricity) Act 2000 (Cth). It is proposed that the con- cession extend to development-stage projects where supported by evidence that their intended purpose satisfies eligibility criteria. 1.4 Sale of Power Industry Assets The sale of power industry assets and businesses in Australia is subject to several overlapping regulatory frameworks, depending on the nature of the trans- action, the identity of the acquirer and the assets involved.
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