Bill introduces critical changes to Australia’s merger control regime

What you need to know

• The government is changing the law so that mergers which are required to be notified – but are not – can be declared void by a Court on application by the Austrailan Competition and Consumer Commission (ACCC), instead of being deemed automatically void.
• This is an important change to the existing law, which will provide greater certainty to businesses and could give the ACCC greater flexibility to provide guidance on the types of transactions that it considers do not require notification under the new merger regime.
• There will be a new mechanism to seek an extension of the validity of ACCC decisions, which currently become ‘stale’ after 12 months. This will reduce the administrative burden on businesses that have delays in putting into effect a transaction that had been notified and received ACCC approval by providing a more streamlined pathway to refreshing the original decision, focussing on any relevant market changes in the intervening period.
• The new amendments also present a test of whether parties are associates for the purpose of assessing whether a transaction will confer joint control. The new amendments focus on the degree of practical control and influence that will be jointly exercised between the relevant parties, including any corporate relationship or agreement to influence or act in concert with each other.

Overview of changes

On 2 July 2026, the Government introduced what it has called ‘targeted refinements’ to Australia’s merger regime in Schedule 4 of The Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Bill (Bill) to Parliament.

The Bill amends the merger control laws in the Competition and Consumer Act 2010 (Cth) (CCA) to adjust the legal consequences – from void to voidable – for parties that fail to notify the ACCC of transactions that meet the relevant thresholds. The proposed reforms also clarify the concept of control (including the concept of ‘associates’ and ‘joint control’) and introduce a new mechanism to seek extensions from the ACCC to implement approved acquisitions that have become ‘stale’. These reforms were previewed by Hon. Dr Andrew Leigh MP in October 2025.

In reading the Bill in Parliament, Assistant Treasurer and Minister for Financial Services, Daniel Mulino MP, said the reforms will “reduce the regulatory burden on industry while preserving the integrity of the regime.”

Acquisitions not notified are now “voidable” under a court-supervised model

Under the existing regime, acquisitions that are required to be notified to the ACCC but are not (“non-notified acquisitions”) are automatically “void”, meaning the acquisition is invalid from the beginning and has no legal effect.

The Bill replaces this with a court-supervised “voidable” model, in which a non-notified acquisition is voided only if the Court orders, on application by the ACCC to the Federal Court. Under this model:

• the Court must declare the acquisition void, unless it considers it “undesirable to do so”, which might include a situation where voiding could cause significant harm to innocent third parties, or the vendor company has been wound up
• the Court can also make other orders it considers desirable, such as divestiture of shares or assets upon application
• the Court can grant leave for applications outside of the 6-year limitation period to deal only with voidable transactions
• any affected party can apply to the Court for orders to deal with the consequences of a voiding order (such as employee arrangements).

To support the new voidable framework, the Court may also grant an injunction when the ACCC has applied for a voiding declaration or while it investigates whether to seek one. This allows the court to make orders such as pausing integration, preserving target assets or shares and preventing the target from being on-sold.

Significantly, in deciding whether to make an order declaring the acquisition as void, the Court must not have regard to whether the acquisition would substantially lessen competition. The intent of this is to ensure that merger parties cannot undermine the ACCC’s role as the first instance decisionmaker in merger assessment (e.g., by not notifying a merger and effectively asking the Federal Court to undertake the competition assessment in lieu of the ACCC).

Notably, while non-notified acquisitions are no longer automatically voided:

• automatic voiding is retained for acquisitions that close in circumstances where (i) they have been notified but still under review by the ACCC, (ii) the ACCC has decided to block them, or (iii) ACCC approval was more than 12 months ago (i.e. the notification has otherwise become ‘stale’); and
• non-notified acquisitions that meet the thresholds will remain stayed and putting them into effect will attract civil and pecuniary penalties under the CCA.

As the Bill’s changes to the automatic voiding provisions will not be retrospective, acquisitions that are already automatically voided before the Bill comes into force will remain the case. However, the Bill extends existing provisions such that any party can apply to the Court for orders to deal with the consequences of automatic voiding outside of the 6-year limitation period. This approach provides a pathway to rectify unintended consequences where the effects of the void acquisition have only become apparent later.

Extension mechanism for ‘stale’ notifications

As mentioned above, acquisitions that have been approved by the ACCC, but which have become ‘stale’ cannot be put into effect unless it is notified and approved again by the ACCC. The Bill introduces a new mechanism allowing parties to request extensions from the ACCC to put a stale acquisition into effect. This will be available for transactions that have already been approved in the 12 months prior to the commencement of the Bill.

Key features of this mechanism include the following:

• The ACCC may grant extensions of up to 6 months each, with no limit on the number of extensions that can be granted.
• In deciding whether to grant an extension, the ACCC must consider whether there are reasonable reasons why the acquisition has not been put into effect, whether there have been material changes to the market, and whether re-notification would be more appropriate.
• Extension decisions are not subject to merits review but remain subject to judicial review.

This amendment is intended to reduce the compliance burden, particularly where delays may arise in complex multi-jurisdictional transactions.

Clarifying the ‘control’ exemption and narrowing the ‘associate’ definition

Currently, the acquisition of shares that do not result in control are exempt from notification, unless it falls within certain scenarios of non-controlling acquisitions – i.e., where voting power increases from below 20% to over 20% (for non-listed entities) or increases from over 20% to equal to or over 50% (for any bodies corporate).

The Bill clarifies the scope of the control exemption in the CCA by amending the definition of ‘control’. Currently, section 51ABS(1) of the CCA defines control by reference to section 50AA of the Corporations Act 2010 (Cth) (CA) as modified by section 51ABS(2).

The modifications in section 51ABS(2) currently provide that:

• notwithstanding section 50AA(3) of the CA, which states that the first entity does not control the second merely because the first entity and a third entity jointly have the capacity to determine the outcome of the decisions about the second entity’s financial and operating policies
• a person is taken to control a body corporate if the first person “and one or more associates (within the meaning of Chapter 6 of the CA) jointly have the capacity referred to in section 50AA(3)” of the CA.

The current section 51ABS(2) modifications gave rise to some ambiguity on their application. Given the broad definition of ‘associate’ in Chapter 6 of the CA, there was some concern that an acquirer could acquire joint control merely because it met the definition of an ‘associate’ with other shareholders (e.g., through being party to a shareholders agreement). Another view considered that the modifications still required establishing the parties were both associates and had joint control to establish the necessary control required to trigger notification.

The amendments in the Bill will address this ambiguity in two ways:

• Meaning of "control": new section 51ABSA of the CCA will define control for the purposes of the notification exemption, including sole control and joint control with associates, replacing section 51ABS(1)’s reference to section 50AA and removing the section 51ABS(2) modification. The test focuses on practical influence – whether the acquirer (alone or with associates) has the capacity in a real and practical sense to determine the outcome of decisions about the target entity's financial and operating policies. This involves considering all relevant facts and circumstances, with particular regard to the nature of the relationship between the acquirer and its associates in relation to the target entity.
• Narrowed definition of "associate": new section 51ABSB redefines "associate" for the purposes of the joint control concept, narrowing it from the broad definition contained in the CA. Under the new rule, a person is considered an associate of another person, in relation to a particular company if at least one of the following applies:
  • Corporate relationships:  both persons are in the same corporate group (e.g. they control each other or are controlled by the same parent entity).
  • Agreements to influence: one person is acting, or plans to act together with the other person to influence the target entity’s financial and operating policies.
  • Agreements to act in concert: one person is acting, or plans to act together with another person, to control or influence the target entity’s financial and operating decisions.

  This language expressly ties the associate definition to relationships that involve controlling or influencing the target's financial and operating policies – in other words, relationships that could practically influence competition.

• Express exceptions: the amendments introduce exceptions so that a person is not treated as an associate merely because of:
  • minority shareholder protection rights
  • dividend-policy agreements
  • arm's-length financing agreements
  • arm's-length standard shareholder or member agreements about governance processes;
  • rights to dispose of securities
  • professional advisory relationships, financial product dealings, takeover bid offers, and proxy/representative appointments.
• Ministerial determination powers: the Minister is given three new powers to determine classes of agreements, rights, or matters relevant to the associate analysis, providing flexibility to update the provision over time.

The new provisions apply equally to acquisitions of units in unit trusts and interests in managed investment schemes.