Competition Lawyers Australia 2026: Merger Notification, ACCC Approval & Director Liability

Australia’s competition law landscape shifted dramatically on 1 January 2026 when a mandatory and suspensory merger control regime took effect under amendments to the Competition and Consumer Act 2010 (Cth). For the first time, businesses must notify certain acquisitions to the Australian Competition and Consumer Commission (ACCC) before completing them, and wait for clearance. The reform replaces the former voluntary, informal clearance system that competition lawyers Australia-wide had relied on for decades, creating new compliance obligations, tighter deal timelines, and direct personal exposure for company directors who get it wrong.

This guide sets out the notification thresholds, the step-by-step ACCC approval process, the director liability risks, and a practical merger compliance checklist for general counsel, M&A teams and boards navigating the new regime.

At a glance, the core compliance question every board must answer: Does this transaction meet the prescribed notification thresholds or fall within a targeted transaction class? If so, can the parties accommodate the suspensory waiting period before completion? Failure to notify, or completing before ACCC clearance, triggers significant civil penalties and, in some circumstances, criminal liability for individuals.

What Changed on 1 January 2026: Australia’s Mandatory Merger Control Regime

The ACCC merger reform 2026 introduced a mandatory and suspensory merger notification regime, replacing the informal, voluntary system that had operated since the Trade Practices Act era. Under the new framework, acquisitions that meet certain turnover thresholds or fall within prescribed transaction classes must be notified to the ACCC, and the parties must not complete the acquisition until the ACCC has issued its determination. This represents one of the most significant reforms to Australian competition law in a generation.

Key Legislative Changes, Timeline and Effect

The legislative amendments inserted new provisions into the Competition and Consumer Act 2010 that make the ACCC, not the courts, the primary decision-maker on whether a notifiable acquisition may proceed. This administrative model aligns Australia more closely with merger control regimes in the EU, the United Kingdom and other major jurisdictions where mandatory, suspensory notification has long been standard.

Who the Regime Applies To

The mandatory merger control regime applies broadly. It captures share acquisitions, asset purchases and other forms of acquiring control or influence over a business, provided the relevant thresholds are met. There is no distinction between domestic and foreign acquirers: overseas buyers with sufficient Australian nexus are caught just as squarely as local parties. Critically, the regime applies to both horizontal and vertical transactions, and the ACCC has signalled it will scrutinise acquisitions of minority stakes where those stakes confer material influence over competitive conduct.

Merger Notification Thresholds and Scope, Which Transactions Must Be Notified?

Under the mandatory merger control regime, a transaction must be notified to the ACCC if it meets prescribed monetary thresholds or falls within a targeted transaction class specified in subordinate legislation. This dual-trigger design ensures that both large-scale acquisitions and strategically significant smaller deals are subject to review. Competition lawyers Australia-wide should treat threshold analysis as the first step in every transaction due-diligence process.

Monetary Thresholds

The ACCC’s Merger Reform FAQs confirm that the notification obligation is triggered where the parties to the acquisition, or the target, meet turnover thresholds specified in the legislation and subordinate instruments. These thresholds are assessed by reference to Australian turnover (revenue derived from supplying goods or services in Australia) over the most recent financial year. There are separate thresholds for:

• Acquirer/merged entity turnover. The combined Australian turnover of the acquirer group and the target must exceed the prescribed amount.
• Target turnover. The target business or assets must independently meet a minimum Australian turnover figure.
• Transaction value. In some cases, the consideration payable for the acquisition itself triggers notification, even if the target’s standalone turnover is modest.

Because these thresholds are set by subordinate legislation and may be adjusted by regulation, parties should confirm the current figures directly against the ACCC’s published guidance and the relevant legislative instruments at the time of the transaction.

Targeted Transaction Types

In addition to the monetary thresholds, the regime captures certain classes of transactions regardless of whether the turnover figures are met. These targeted transaction classes are designed to ensure the ACCC can review acquisitions that may not cross the monetary thresholds but nonetheless raise material competition concerns, for example, serial acquisitions in concentrated markets, acquisitions of nascent competitors, or transactions in sectors that the Minister has designated as warranting closer scrutiny. The Merger Process Guidelines provide further detail on how these classes are identified and applied.

Exemptions and Carve-Outs

Not every acquisition requires notification. The legislation provides limited exemptions for:

• Internal corporate restructures where there is no change in ultimate control.
• Acquisitions below all applicable thresholds that do not fall within a targeted transaction class.
• Certain prescribed categories of de minimis transactions, as specified in regulations.

The ACCC Approval Process: Timing, Evidence and Waivers

Once a transaction is notifiable, the parties must submit a notification to the ACCC and must not complete the acquisition until the ACCC has issued its determination. The ACCC approval process follows a structured, staged pathway set out in the interim Merger Process Guidelines. Understanding this process, and its timing implications, is essential for any competition lawyers Australia deal teams and their clients.

Step-by-Step Process

1. Pre-notification. The ACCC encourages parties to engage in pre-notification discussions to ensure the notification is complete and to identify potential issues early. This stage is voluntary but widely regarded as practically essential for complex transactions.
2. Formal notification. The acquirer lodges a notification form with the ACCC, including prescribed information about the parties, the target, the transaction structure, market definition data and a competition assessment.
3. Initial assessment. The ACCC conducts a preliminary review to determine whether the acquisition raises competition concerns warranting further investigation.
4. Market inquiries and information requests. If the ACCC identifies potential issues, it may conduct market inquiries, seek further information from the parties or third parties, and request additional documents or data.
5. Statement of Issues (if applicable). For transactions raising material concerns, the ACCC may issue a statement of issues identifying the specific competition problems it has identified.
6. Determination. The ACCC issues its determination: clearance (unconditional or subject to conditions), or a decision not to clear the acquisition.

Typical ACCC Timelines and Timing Risk

The Merger Process Guidelines establish indicative timelines for each phase. Industry observers expect most straightforward transactions to be assessed within a period broadly comparable to international benchmarks, though complex or contested matters will inevitably take longer. The suspensory regime means the parties cannot complete during the review, a significant departure from the old informal system, where parties could proceed at their own risk.

Common delay drivers include incomplete notification forms, difficulty defining relevant markets, the need for extensive third-party market testing, and the negotiation of remedies or conditions. Parties should build ACCC review periods into deal timetables from the outset, including buffer time for information requests and potential extensions.

Waiver Process and Urgent Notifications

The ACCC has the power to grant waivers of the notification obligation in limited circumstances, as well as to accept short-form or expedited notifications where a transaction is unlikely to raise competition concerns. The ACCC’s Merger Reform FAQs outline the criteria and process for waiver applications. A waiver may be available where the acquisition clearly does not raise competition issues, for example, where the parties operate in entirely unrelated markets, but the ACCC retains discretion and is unlikely to grant waivers as a matter of course.

What to file, key documents the ACCC expects:

• Completed notification form (prescribed format)
• Transaction documents (share purchase agreement, asset sale agreement, scheme booklet)
• Market definition and competition analysis
• Internal board papers, strategy documents and competitive assessments relevant to the transaction rationale
• Financial data including Australian turnover figures for each party and the target
• Details of any other regulatory approvals required (including FIRB)

Director Liability and Enforcement Risks Under the Mandatory Merger Control Regime

The 2026 reforms carry serious consequences for company directors. Completing a notifiable acquisition without ACCC clearance, or failing to notify altogether, is a contravention of the Competition and Consumer Act 2010. The increased competition penalties introduced alongside the mandatory regime mean that both corporate entities and individual officers face substantial financial exposure, and in egregious cases, criminal liability.

Civil and Criminal Exposure

The Act imposes civil pecuniary penalties for contravention of the notification and completion prohibitions. For bodies corporate, maximum penalties are significant and calculated by reference to the higher of a fixed sum, a percentage of turnover, or a multiple of the benefit obtained from the contravention. For individuals, including directors and officers, separate civil penalty provisions apply. Where a contravention is knowing and deliberate, criminal prosecution is also possible under the Act.

Beyond statutory penalties, directors face ancillary risks including disqualification orders, injunctions, and adverse publicity. The ACCC has publicly indicated that enforcement of the new regime is a priority and that it will pursue individual directors where there is evidence of deliberate non-compliance or reckless disregard of notification obligations.

Director Duties Implicated in M&A

The director liability analysis extends beyond the specific merger notification provisions. Directors must also consider their general duties under the Corporations Act 2001 and the Competition and Consumer Act 2010, including:

• Duty to act with care and diligence. A failure to implement a merger notification screening process could itself constitute a breach of the duty of care.
• Duty to prevent contravention. Officers of a corporation must take reasonable steps to prevent contraventions of the CCA. Passive ignorance of notification obligations is not a defence.
• Record-keeping and decision-making. Board minutes should record the competition law analysis, legal advice received, and the notification decision for every acquisition.

Enforcement Posture and Practical Implications

Early indications suggest the ACCC is taking an active enforcement posture in the first months of the new regime. Practitioners report that the ACCC has dedicated substantial additional resources to the merger review function and is closely monitoring completion activity to identify transactions that should have been notified. The likely practical effect will be heightened scrutiny of deal timelines and a low tolerance for “completion first, notify later” strategies that were sometimes employed under the old informal system.

Board checklist, pre-clearance steps:

• Include a standing agenda item on competition law compliance at board meetings where acquisitions are discussed.
• Obtain and minute external legal advice confirming whether notification is required before any acquisition is approved.
• Ensure no completion steps, including payment of consideration, transfer of shares or change of control, occur before ACCC clearance is received.
• Designate a senior officer or general counsel as responsible for merger notification compliance.
• Implement escalation triggers so that potential notification issues are flagged to the board as soon as a transaction is contemplated.

Merger Compliance Checklist: A Practical Playbook for Competition Lawyers Australia Deal Teams

Every M&A transaction in Australia now demands a structured compliance workflow to manage notification risk. The following merger compliance checklist provides a practical framework for general counsel, external advisers and boards.

Pre-Deal Screening Workflow

Before any acquisition progresses beyond the indicative offer stage, the legal team should conduct a threshold analysis and assess whether the transaction falls within a targeted transaction class. This screening should be documented and reported to the board or investment committee. Where notification is required, the deal timetable must be adjusted to accommodate the ACCC review period, and the transaction documents should include appropriate ACCC clearance conditions.

Allocation of Responsibilities and Template Timelines

Interaction With Other Regulators: FIRB, Sector Regulators and Cross-Border Issues

FIRB and ACCC Sequencing

For foreign acquirers, the interaction between the mandatory merger regime and the Foreign Investment Review Board (FIRB) approval process is a critical planning consideration. Where an acquisition requires both ACCC and FIRB approval, FIRB will generally not issue its approval until the ACCC has issued its own clearance. This sequencing requirement means that a foreign-to-foreign acquisition with an Australian target now faces a potentially longer regulatory timeline than under the previous regime, and deal teams must plan for parallel workstreams.

Cross-Border Acquisitions and Jurisdictional Overlap

Global transactions with an Australian component are subject to the same mandatory notification requirements as purely domestic deals, provided the relevant thresholds are met. The ACCC expects full cooperation from foreign parties and will exercise its information-gathering powers to obtain documents and data held offshore. Competition lawyers advising on cross-border transactions should coordinate Australian notification with filings in other jurisdictions (such as the EU, the UK and the United States) to manage timing and evidence demands efficiently. The Merger Process Guidelines emphasise the ACCC’s willingness to cooperate with overseas competition agencies where parallel reviews are underway.

Concurrent Reforms to Watch: Unfair Trading Practices and Increased Penalties

The mandatory merger control regime is not the only reform reshaping the competition law environment in 2026. The Australian Government has also advanced proposals to introduce a prohibition on unfair trading practices, the Unfair Trading Practices Bill 2026, which, if enacted, would expand the scope of conduct regulated under the Competition and Consumer Act. Simultaneously, increased competition penalties have been proposed across multiple categories of CCA contravention, reflecting a broader policy trend toward stronger deterrence. Industry observers expect these concurrent reforms to further elevate compliance risk for boards and deal teams, making early engagement with experienced competition counsel more important than ever. For additional background, see our detailed primer on mandatory merger control Australia 2026.

Conclusion: Practical Next Steps for GCs, Boards and Competition Lawyers Australia

The mandatory and suspensory merger regime is now a fact of Australian deal-making. Every acquisition must be screened against the notification thresholds and targeted transaction classes before it proceeds. Directors bear personal exposure if the screening is inadequate or if completion occurs before ACCC clearance. The central compliance question remains: does this transaction require ACCC notification, and can the parties accommodate the waiting period?

The recommended first steps are straightforward: implement a standing merger compliance screening process; obtain early competition law advice on every contemplated acquisition; document the board’s notification decision in minutes; and build ACCC review time into every deal timetable. For transactions involving foreign acquirers, factor in the FIRB–ACCC sequencing requirement from the outset. Experienced competition lawyers Australia-wide and qualified counsel listed in the Global Law Experts Australia directory can assist with threshold analysis, ACCC notification preparation and director liability mitigation.

Sources

1. Australian Competition & Consumer Commission, Mergers & Acquisitions
2. ACCC, Merger Reform: Frequently Asked Questions (6 March 2026)
3. ACCC, Merger Process Guidelines (Interim Version, December 2025)
4. Competition and Consumer Act 2010 (Cth)
5. Gilbert + Tobin, Merger Remedies Under Australia’s New Mandatory and Suspensory Merger Control Regime
6. Arnold Bloch Leibler, Guide to Merger Reform
7. Norton Rose Fulbright, Australia’s New Mandatory Merger Control Regime
8. Global Law Experts, Mandatory Merger Control Australia 2026
9. Ashurst, Competition Law Quarterly Q1 2026