The Australian Treasurer announced on 10 April 2024 significant merger control reforms to Australia’s merger rules. Australia’s competition regulator, the Australian Competition & Consumer Commission (ACCC), will be simplifying and speeding up the process for mergers in Australia’s national interest.
Under the new merger reforms, the rules will introduce new mandatory notification requirements for merger deals above certain thresholds and prohibit merger transactions from proceeding without receiving a determination from the ACCC or the Australian Competition Tribunal (Tribunal). The new thresholds have not currently been legislated but will be subject to consultation.
The new merger reforms
- The ACCC will review mergers that pose a risk to competition, consumers, and the economy.
- Currently there are three paths to merger approval. This will be streamlined into a single pathway, by introducing a single expert decision-making process on all mergers.
- Transactions that are in the national interest will be fast‑tracked.
- Mergers will be approved within 30 working days where the regulator decides there is no need for any competition concerns.
- All ACCC determinations will have a right of appeal to the Tribunal, ensuring reviews are conducted by legal economic experts.
- Judicial review of the Tribunal determinations will be available in the Federal Court.
- The reforms to the laws will have to specify what factors the ACCC must consider for merger applications, to better help differentiate between less harmful acquisitions, and those that would extend market power.
- Competition issues will no longer be assessed separately under the Foreign Acquisitions and Takeovers Act 1975.
- General notification requirements will apply, while the Minister will be given power to introduce additional targeted notification obligations.
- A public register will be created for all mergers and acquisitions to increase transparency and accountability and competition.
- All merger notifications will be accompanied by a fee. Indicatively, Treasury expects this to be around $50,000 – $100,000 to carry out the review of a merger.
- There will be fees for the Tribunal review and an exemption from fees will be available for small businesses.
- There will be scope for merger parties to consult the ACCC on a confidential basis before making a notification.
The new thresholds
The new thresholds were not specified but mergers above monetary and market share thresholds will be required to notify the ACCC and be determined by the ACCC, to ensure that acquisitions that will most likely impact consumers are subject to proper scrutiny.
The new merger reforms will not come into effect until 1 January 2026.
More information
If you have any questions or would like further information regarding this article, please contact:
Justin Hill
Principal
M: 0418 578 701
E: justinhill@pageseager.com.au
Deborah Edo
Senior Associate
M: 0426 061 556
E: dedo@pageseager.com.au
Published: 18 April 2024
