Brief overview: notifiable transactions
The new regime applies to a wide range of commercial transactions, beyond traditional mergers and acquisitions or asset sales. For most transactions, an acquisition must be notified where the following are satisfied:
it involves a person acquiring assets or ‘control’ of an entity through a share sale;
it meets the monetary thresholds or is subject to a specific ministerial designation (for example, supermarkets); and
the target is ‘connected’ with Australia,
unless an exemption applies or the parties have obtained a waiver from the ACCC.
Importantly, it is no longer relevant whether an acquisition is likely to raise a potential competition concern. If your deal meets the thresholds, you must notify the ACCC.
For further details on the monetary thresholds and related concepts, see our briefing here.
Key takeaways for private equity investors
Three-year lookback and roll-up strategies
The ‘three-year cumulative turnover threshold’ is especially important for private equity investors as the ACCC and the government have respectively called out private equity bolt-ons and roll-ups as an area of focus (see our previous article here). This threshold has both a procedural and substantive impact:
Procedural impact: The three-year cumulative threshold brings additional deals in scope for mandatory notification. To ensure that you notify all relevant deals given the serious consequences of missing a notification:
Maintain detailed records of your transaction history (including deals prior to 1 January 2026) to determine whether a current transaction meets the cumulative threshold.
Review a potential target’s previous transaction history to determine whether any previous transactions by the target are at risk of being in scope of the three-year cumulative period.
Substantive impact: The cumulative thresholds are also relevant in the ACCC’s substantive consideration of a transaction, where the ACCC can consider the combined effect of the current and previous transactions over a three-year period where:
The parties include any party to the current acquisition (including related parties).
The targets are involved in the supply or acquisition of the same goods or services or goods or services that are substitutable for, or otherwise competitive with, each other (disregarding geography).
Private equity investors are advised to be mindful of the ACCC’s powers to look back on transactions when determining your overall sector strategy in Australia and considering future incremental and bolt on transactions.
Calculation of revenue thresholds – connected entities
One of the limbs of the monetary thresholds for notification relates to the revenue of the acquirer. This definition picks up the revenue of both the acquiring entity and all ‘connected entities’. This in turn links to an assessment of related entities and control, applying a modified version of a test from the Corporations Act.
It is important for all private entity companies to understand the scope of control given their specific partnership and fund structure. The test for assessing connected entities is complex, relating to practical and not just legal control, and needs to be applied on a case-by-case basis.
Wider range of deals caught by the mandatory notification regime
Compared to the current regime, private equity investors will have to plan for ACCC review of a wider range of deals including no issues deals and minority acquisitions.
No issues deals
Deals that do not raise any competition risks but which otherwise meet the monetary thresholds must be notified to the ACCC.
Deals that do not raise competition risks are eligible for waiver from the ACCC (analogous to the ‘short form process’ in the EU). To apply for a waiver, parties will need to provide basic information about the parties, the transaction and the market and can expect an outcome from the ACCC within 20 business days.
Investors should note that all transactions reviewed by the ACCC including waiver applications will be published on the ACCC’s website.
Minority acquisitions
In the case of a share sale, notification is required if a transaction gives the acquirer ‘control’ of a body corporate, unless a transaction falls into one of the categories below:
There is an exemption for listed companies (or unlisted companies with more than 50 members) if the acquirer obtains less than 20% voting power or already has over 20% and is acquiring more.
From 1 April 2026, certain transactions which do not confer control are also caught by the merger regime. See details in our briefing here.
The concept of control is defined broadly and will apply in any case where either you are acquiring a majority stake, or you (either alone or together with associates) are able to determine the outcome of decisions about the financial and operating policies of the company. In determining whether someone has that capacity, it is the practical influence that they can exert (rather than the rights they can enforce) will be the relevant deciding factor. In summary, the control assessment is a qualitative assessment which must be carefully considered.
Given the overall increased focus of the ACCC on private equity deals, it is recommended that you seek early advice about notification if your deal meets the financial thresholds even for minority stakes.
Impact on transaction documents and process
Conditions precedent: All notifiable deals will require an ACCC condition precedent that cannot be waived. Parties will need to carefully consider the nature of their cooperation obligations, including the extent to which the buyer is required to prosecute a case for clearance into a Phase 2 of the process, given substantial fees with that phase. Overall, we expect to see a greater desire by sellers to push ACCC risk onto buyers, with stronger ‘best endeavours’ obligations and potentially regulatory break fees.
Deal timeframes: Time required for ACCC review of a transaction depends on the complexity of the deal, with even straightforward deals requiring at least 6-8 weeks for ACCC clearance. We recommend seeking early competition assessment of your deal so that appropriate timeframes can be built in transaction documents to allow for ACCC review.
Integration planning: Deals cannot be ‘put into effect’ until after the ACCC clearance process is completed with risk of serious penalties for ‘gun jumping’. This means being careful about undertaking pre-completion integration activities.
Confidentiality: Notified acquisitions will be published by the ACCC on the Acquisitions Register.
Costs: Costs for an ACCC process depend on the complexity of the deal ranging from A$8,300 for waiver applications to hefty additional costs (between A$475,000-1,595,000 based on transaction value) for a Phase 2 process.
Early planning key for complex deals
Early and careful planning on both the merger process and substantive assessment will be key for private equity investors looking to do a potentially complex deal.
Longer timeframes: Complex deals could take a long time for clearance under the ACCC’s new process for merger review which may comprise of multiple phases and potential appeals to the Tribunal. Early planning and engagement will help to build an efficient ACCC clearance strategy to minimise the time needed for clearance.
Test for clearance: The ACCC will assess notified acquisitions by applying the ‘substantial lessening of competition’ test. An acquisition may have the effect of substantially lessening competition in a market if it would likely have the effect of creating, strengthening or entrenching a substantial degree of power in the market. We expect that the ACCC will look to apply this test rigorously especially for private equity investors given the increased focus on private equity deals in the last few years.
Please contact us if you wish to discuss further.
Australia’s new merger reforms have commenced and mark the most significant overhaul of Australia’s merger control framework in decades.