The long-awaited merger reforms are finally here, with a late flurry of instruments and regulatory guidance to support early adopters. 

We have previously written about the shift from Australia’s voluntary merger control regime to the new mandatory and suspensory regime,[1] which represents a significant (and in the regulator’s eyes, long overdue) shift in how mergers and acquisitions are regulated in Australia. 

As of 1 July 2025, merger parties are now able to voluntarily notify the ACCC of mergers that would hit the new regime notification thresholds. Compulsory notifications for those mergers will come into effect on 1 January 2026. 

Navigating the transition period

In our previous article, we discussed how the ACCC proposes to manage the transition to the new regime. Now the position is clear.  From 1 July 2025 until 31 December 2025, merger parties will have two options for engaging with the ACCC, in theory at least: 

• continue to use the current ‘informal clearance’ process, while making sure that they engage with the ACCC as early as possible to give enough time to complete the review and obtain the clearance; or
• use the new regime on a voluntary basis.

However, the ACCC has indicated that requests for informal clearance received between October and December 2025 are much less likely to be considered in time even if there are limited competition risks. 

So, in practice, parties will likely need to carefully consider their options for seeking clearance during the transition period, including whether to notify the ACCC under existing processes or the transitional regime, taking into account the likely timing for completion and any risk of not receiving informal clearance in time.  

If a party proceeds on an informal basis on a transaction that meets the thresholds and the transaction is not approved prior to 1 January 2026, then the acquiror will need to move to compulsory notification, potentially adding significant delay.

Notification thresholds 

The Government has now published the final Competition and Consumer (Notification of Acquisitions) Determination 2025 (“Determination”) which includes the notification thresholds and filing fees under the new regime.[2] 

From 1 January 2026, an acquisition of shares or assets which is “connected with Australia” and results in a change of control must be notified to the ACCC where certain monetary thresholds are met, unless an exemption applies. The exemptions include certain land acquisitions, acquisitions of financial market infrastructure, and acquisitions of debt instruments or security interests.

A share or an asset will be “connected with Australia” if the shares or assets are in a company that “carries on business in Australia”. The explanatory materials state that courts have typically looked at the circumstances around the entity and its activities when deciding whether it is carrying on business in Australia. Helpfully (for certainty), the Government has updated the definition of this phrase from the draft instrument, such that a company that “intends to carry on business in Australia” is no longer captured. 

The monetary thresholds capture the following mergers: 

The final determination has also seen a shift in the method for calculating revenue from using GST turnover to the use of accounting standards.

Filing fees

The proposed filing fees were the subject of a separate (and short notice) public consultation, and the fees initially proposed by the Treasury prompted significant criticism from industry due to their quantum and the absence of a tiered pricing methodology.  In particular, the Government had proposed a single fee of $952,000 for any acquisition proceeding to phase 2 assessment. This was seen by many as too high and potentially a case of the Commission underestimating the number of mergers that may warrant phase 2 assessment.

Following the consultation, there has been a shift in the final Determination, albeit the scale of that shift is unlikely to be of much comfort to some. The filing fees are now:

The other filing fees (i.e. for waiver applications, phase 1 reviews, or public benefits applications) remain the same, notwithstanding concerns that the size of the fees could limit access to merger review to very large businesses and disproportionately impact small and medium-sized companies.  

There remains a real question of whether the fees will achieve the Government’s objectives of promoting competition, equity, and efficiency. For example, the significant phase 2 filing fees could have the effect of disincentivising small and medium businesses from pursuing complex mergers, and result in the withdrawing of proposed mergers, even if competition concerns could have been resolved during phase 2. 

The filing fees for a phase 2 review are also higher than fees for comparable merger filings around the world, such as in the UK, Denmark, and Germany (perhaps with the exception of the US). 

The change to a tiered system of fees for applications that proceed to a phase 2 review may assuage some concerns (with fees between $475,000 - $1,595,000 instead of a single fee of $952,000), but the cost for a phase 2 review where the transaction value is $50 million or less is still significant ($475,000). 

Next steps

The ACCC has now finalised the substantive merger guidelines, which outline its approach to assessing the effects of mergers on competition under the new regime and whether a merger is likely to result in a net public benefit. However, despite the fact that the voluntary regime is now live, the merger process guidelines remain in draft form.

For more information or further guidance on this topic, please contact Thomas Jones, Matthew Bovaird, Patrick Cordwell or Dylan McGirr. 

VISIT OUR COMPETITION & EU HOMEPAGE

[1] See e.g. our articles here and here.

[2] See the Competition and Consumer (Notification of Acquisitions) Determination 2025.