The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth), passed in late 2024, introduces a mandatory and suspensory merger notification system, fundamentally changing the landscape for organisations contemplating mergers, acquisitions, or asset transfers. The new regime will become mandatory from 1 January 2026, with a voluntary notification window open since 1 July 2025.
Key features of the new regime
While small scale merger and acquisition activity amongst charities and not-for-profits, or even between for-profits and charities, will generally fall under the relevant notification thresholds, it is still essential for the requirements to be actively considered and an assessment made regarding whether the relevant transaction is captured.
The key features of the new regime include:
Mandatory notification and suspensory regime: From 1 January 2026, any acquisition meeting the prescribed thresholds must be notified to the Australian Competition and Consumer Commission (ACCC) and cannot be “put into effect” until ACCC clearance is obtained. Transactions completed in breach of these requirements will be legally void and may attract substantial penalties, including fines of up to A$50 million or more, depending on the benefit obtained or the turnover of the corporate group involved. Therefore, any transaction you are considering now that may not close until 1 January will need to notify if the thresholds are triggered.
Acquisitions of shares or assets: The new regime will capture acquisitions of shares (which includes units in a unit trust) and acquisition of assets. Assets is defined broadly and includes acquiring any kind of property, a legal or equitable right that is not property or any interest or goodwill in such assets. While there are exceptions such as acquisitions that are in the ordinary course of business (which do not apply to acquisitions of land interests and intellectual property) or which occur by operation of law (such as under succession laws), the new regime potentially captures a much broader range of transactions than what is traditionally considered M&A, including transactions such as acquiring a contract right, a lease over land and/or intellectual property rights, if notification thresholds are triggered.
Notification thresholds: The new regime applies to acquisitions where the target is connected with Australia (that is, it either carries on business in Australia or holds assets are used in an Australian business) and certain monetary thresholds are met. For most transactions, notification is required if:
The combined Australian revenue of the merger parties (including related bodies corporate and connected entities of the buyer, and the target, to the extent these are being acquired by the buyer) is at least A$200 million, and either the target’s Australian revenue or the value of assets being acquired is at least A$50 million, or the global transaction value is at least A$250 million.
For very large acquirers (Australian revenue over A$500 million), notification is triggered if the target’s Australian revenue or asset value is at least A$10 million.
Serial acquisitions are also captured, with a three-year look-back for previous acquisitions in the same or similar goods or services that cumulatively meet the above thresholds.
Filing fees: The new system introduces significant filing fees, with a Phase 1 notification costing A$56,800 and additional fees for more complex (Phase 2) reviews, ranging from A$475,000 to A$1,595,000 depending on transaction size. There is also an additional fee of A$401,000 for an application based on public benefits (Phase 3). There are fee exemptions for certain small entities that carry on a business and have annual turnover under A$10 million.
Waivers and exemptions: The ACCC has the power to grant waivers from notification for transactions, although the government has not yet finalised the criteria for exercising this power or the forms that must be used for a waiver application.
Upfront information requirements: All notifiable transactions will need to provide significant information and documentation upfront to the ACCC, including information about the parties, the transaction, prior transactions, the relevant markets and competitive effects (for example, market shares), competitor and customer contact details as well as transaction documents. There are additional requirements for parties which need to use the long form notification, such as board documents analysing the transaction and competitive dynamics. For more details on upfront requirements, see our update on the ACCC’s process for the new merger regime.
Decision making and review timeframes: The ACCC is the first instance, administrative decisionmaker and the Australian Competition Tribunal will have the ability to undertake a limited merits review of the ACCC’s decision. The initial Phase 1 ACCC review period will be up to 30 business days or a fast-track determination if no concerns are identified after 15 business days. The in-depth Phase 2 review period will be up to 90 business days, subject to any extensions. Parties may apply on public benefit grounds in Phase 3, which has a 50 business days review period. Parties can agree on different timelines with the ACCC.
Assessment criteria: If notifiable, the ACCC will clear the transaction unless it is satisfied the transaction has or is likely to have the effect of substantially lessening competition in any market, which may include where a merger creates, strengthens or entrenches market power. As mentioned above, it is also possible for parties to raise public benefit arguments in Phase 3 if the ACCC has competition concerns after completing Phase 1 and 2 of the review.
What this means for your organisation
While competition law has traditionally focused on for-profit entities, charities and not-for-profits are not specifically exempt from the new regime. This is particularly relevant as the sector continues to see increased collaboration, consolidation, and growth. A recent report released by Pitcher Partners in June 2025 revealed 71 per cent of organisations surveyed had considered mergers and acquisitions, which is up from 15 per cent in 2022.
Competition law is commonly considered in the context of commercial entities, focusing on ‘profit-maximising’ practices which could harm competition in the marketplace, such as price-fixing, misuse of market power and other anti-competitive behaviour. While charities and not-for-profits are generally mission-driven rather than profit-driven, their conduct can still raise issues under competition laws. In particular, mergers involving charities or not-for-profit organisations can raise concerns under competition law if it has the likely effect of substantially lessening competition in a specific service area. For instance, the ACCC has previously reviewed mergers involving services provided by not-for-profit hospitals and childcare centres.
Charities and not-for-profit organisations will need to consider:
Structure of the transaction: Due to the broad definition of “acquisition of assets”, charities and not-for-profits will need to consider whether proposed transaction structures will be captured by the new merger control regime. For example, many charities and not-for-profit organisations are established as a company limited by guarantee (CLBG). While a CLBG has members, rather than shareholders with proprietary interest in the company, an acquisition might occur by way of existing members retiring and the ‘acquirer’ becoming the sole member. In this scenario, there is likely to be an acquisition of assets through acquiring certain legal rights as a member of the CLBG, even if there are no shares transferred.
Market definition and competition analysis: The key considerations in evaluating the competitive impacts of a transaction are identifying the relevant markets and assessing the merger’s impact on competition in those markets. This involves considering the scope of products or services they provide and possible substitutes (including by geography or customer segments) from both for-profit and not-for-profit providers to identify the relevant market and then assessing whether the merger would likely lead to a substantial decrease in competition in that market, such as increasing pricing (where relevant) or otherwise reducing service variety or quality for the public.
Early engagement and compliance: Charities and not-for-profits contemplating mergers or asset transfers should undertake early analysis to determine whether notification thresholds are met and to assess potential competition impacts. If notification is required, proactive engagement with the ACCC is strongly encouraged, particularly for complex transactions, to ensure a smooth approval process and avoid delays.
Transitional arrangements: Parties can continue to use the ACCC’s current informal clearance until the end of 2025, although the ACCC has indicated that reviews are unlikely to be completed if notifying later than October. There are some advantages with notifying under the current regime, including no filing fees and possibility of obtaining confidential pre-assessment for non-complex transactions. If informal clearance is granted, parties are exempt from notifying under the new regime come 1 January 2026 provided they complete the transaction within 12 months of receiving clearance. From 2026, all notifiable transactions must be notified with the new regime before they can be put into effect.
Serial acquisitions and look-back provisions: The ACCC will review not only the current transaction but also the cumulative effect of acquisitions over the preceding three years. This is particularly relevant for larger charities or not-for-profits which have engaged in multiple mergers or asset acquisitions, including those completed before the new merger regime begins.
Practical steps for the sector
Review merger and acquisition plans: Charities and not-for-profits should review any planned or recent transactions, including any significant transactions that may not be considered traditionally as M&A, to assess whether they may be caught by the new regime, including the cumulative impact of those transactions.
Prepare for ACCC scrutiny: As the regime will be mandatory and capture a broader range of transactions, it is important that even mission-driven transactions will require robust competition analysis and documentation.
Plan for potential ACCC processes, filing fees and compliance costs: For notifiable transactions, the new filing fees are substantial and should be factored into transaction planning and budgeting. Merger parties should also factor in ACCC clearance into their transaction documentation (e.g., a specific regulatory approval condition precedent) and deal timelines (e.g., to allow for preparing the notification and also pre-engagement with and review by the ACCC).
Engage early with the ACCC: If the transaction is notifiable, early and proactive engagement with the ACCC is essential, particularly for complex transactions.
How can we help?
The new merger control regime represents a paradigm shift for the charity and not-for-profit sector in Australia. With mandatory notification and significant penalties for non-compliance, charities and not-for-profits undertaking larger scale or frequent mergers and acquisitions must look beyond the broader public benefit and ensure they are fully prepared for the new merger control landscape. Early planning, careful analysis, and engagement with the ACCC (where relevant) will be critical to navigating these changes and ensuring continued compliance and sustainability.
Our Charities and social sector group and our Competition, Consumer and Market Regulation group regularly support charities and not-for-profits in planning for and executing on important transactions. If you wish to discuss how the merger reforms may affect your organisation please contact the authors or your usual G+T adviser.