Australia’s New Merger Control Regime: a Transition Roadmap

In previous articles,[1] we have explained the operation of Australia’s new mandatory and suspensory merger control regime, which became law at the end of November of last year. Under the new merger laws, compulsory notifications will come into effect on 1 January 2026, but voluntary notifications can be made from 1 July 2025. The Australian Competition and Consumer Commission (ACCC) has now released guidance on transitional arrangements in advance of notifications becoming compulsory on 1 January 2026.  This guidance is intended to help businesses decide whether to make voluntary notifications under the new regime after 1 July 2025, or continue to seek informal clearance beyond that date. 

Navigating the transition period

The materials recently published by the ACCC provide guidance on how it proposes to manage the transition to the new regime. This is important given that the vast majority of mergers in Australia have, until now, been assessed via an administrative process that is within the ACCC’s control. Going forward though, it will be necessary for merger parties to carefully consider the requirements of the Competition and Consumer Act 2010 as well as the ACCC’s guidance in deciding how best to proceed.  

Key points in the recent guidance include:

• Between 1 July 2025 and 31 December 2025, parties will have two options for engaging with the ACCC in relation to proposed acquisitions. They can either:
  • 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.
• Applications for merger authorisation can only be made until 30 June 2025. Parties must therefore engage with the ACCC using one of the two options set out above.
• In relation to ‘informal clearance’ requests made during the transition period, merger parties should be aware that:
  • The ACCC will not grant informal clearance after 31 December 2025. As a result, if a party has sought clearance under the informal process and the ACCC has not completed its review by 31 December 2025, the ACCC will stop work on the review, and the party will need to re-notify under the new regime (if the acquisition is required to be notified under the new regime). This could introduce significant delays into mergers that effectively have to be reviewed under two separate regimes, although the ACCC has indicated that, where appropriate, it “will try to consider the acquisition through the new process more quickly”.
  • The ACCC indicates 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 or no competition risks. As a result, any party that is unable to seek clearance before early October 2025 should consider lodging a voluntary notification under the new regime to avoid the risk of running out of time (and having to re-notify under the new laws).
  • Importantly, the new laws also apply to mergers that are notified under the existing regime but do not complete before 1 January 2026. The ACCC has provided guidance on the circumstances in which it may provide clearance of those mergers under the transitional provisions of the new regime.
  • If the ACCC decides between 1 July and 31 December 2025 to pre-assess or not oppose an acquisition in response to a request for informal clearance, its practice will be to issue a clearance letter under section 189 of the Competition and Consumer Act 2010, which will mean the party will not need to re-notify under the new regime, so long as the acquisition is completed within 12 months of the date of that letter.
  • If the ACCC has decided before 1 July 2025 to pre-assess or not oppose an acquisition in response to a request for ‘informal clearance’, the party will not need to re-notify under the new regime so long as the acquisition is completed before 1 January 2026. However, if such an acquisition is not planned to be completed before 1 January 2026, parties should consider applying to the ACCC for an ‘updated informal view’, in circumstances where the merger will be caught by the mandatory notification thresholds in the new regime.[2] This is because acquisitions will only be exempt from the new regime if clearance is granted between 1 July 2025 and 31 December 2025 (and the acquisition is then put into effect within 12 months of the Commission issuing a clearance letter).
  • The ACCC has indicated that, if it is satisfied that its view has not changed, its practice will be to issue a clearance letter under section 189 of the Competition and Consumer Act 2010 in relation to the acquisition, and the party will not need to re-notify under the new regime so long as the acquisition is completed within 12 months of the date of that letter.
  • A request for an ‘updated informal view’ should be made by early October 2025 to give the ACCC time to complete the review and minimise the risk of running out of time. If an updated informal view is sought from the ACCC, parties will also need to provide updated information on changes to the transaction (e.g. updated market share data).
• From 1 January 2026, it becomes mandatory to notify acquisitions that are notifiable under the new regime. The informal clearance process will no longer be available.
• In relation to applications for merger authorisations made before 1 July 2025: 
  • The ACCC will continue to consider these merger authorisation applications until 31 December 2025. Merger authorisations that are granted between 1 July and 31 December 2025 will not need to be notified under the new regime provided that the acquisition is put into effect within 12 months of the authorisation.
  • However, if the merger authorisation process is not finalised by 31 December 2025, any notifiable acquisitions that meet the thresholds under the new regime must be notified. The ACCC has indicated that, where appropriate, “it may be possible for the ACCC to assess the acquisition through the new merger regime reflecting work already undertaken”.

The ACCC will continue to update its guidance to address new questions and scenarios that may arise during the transition. 

Implications for merger parties

The new merger control regime represents a significant shift in how mergers and acquisitions are regulated in Australia, with the ACCC having far greater powers than was previously the case. The regime is complex and detailed and parties considering mergers in the next 12 months should carefully consider the application of the transitional provisions. 

The following points are probably worth keeping in mind: 

• Plan ahead: parties will need to incorporate the new merger control requirements into their strategic planning to ensure that potential acquisitions can be assessed for compliance with the laws in a way that does not unduly disrupt transaction timetables. This will entail careful consideration of risk. 
• Options for seeking merger clearance if an acquisition raises competition concerns: parties will need to carefully consider their options for seeking clearance during the transition period. In particular, parties should consider whether to notify the ACCC under existing processes or the transitional regime (with parties able to voluntarily notify under the new merger regime from 1 July 2025), taking into the likely timing for completion and any risk of not receiving informal clearance or authorisation in time.  
• Risk of enforcement action: merger parties should be aware that the ACCC will be closely monitoring compliance with the new merger regime, with the Commission prepared to take enforcement action against mergers that fail to be notified.[3] The ACCC reiterates in its guidance that it will “consider all available enforcement options for anti-competitive acquisitions completed or proposed to complete before or after 1 January 2026 without approval”.
• Drafting in transaction documents: transaction documents will need to include suitable conditions precedent to completion and accurately represent the merger clearance regime being pursued. 

Our expert teams at Bird & Bird are happy to assist with any questions relating to the transition to new merger clearance regulation in Australia. 

For queries, please contact Thomas Jones, Matthew Bovaird, and Dylan McGirr from our Competition Group or Aaron Chan and Alex Lazar from our Corporate Group.

[1] See our earlier articles here and here. 

[2] While the thresholds have not yet been confirmed, the Government has previously consulted on possible thresholds which are detailed in our earlier article. 

[3] See ACCC Chair’s Gina Cass-Gottlieb’s recent speech at a Committee for Economic Development of Australia (“CEDA”) event (available here).