Merger reform update: critical amendments to Australia’s merger regime passed by Parliament

On 10 September 2026, both houses of Parliament passed critical amendments to Australia’s new merger regime.

The amendments: 

• replace the automatic voiding of acquisitions that are not notified with a scheme in which the Australian Competition and Consumer Commission (ACCC) can apply to the Federal Court for an order to declare an acquisition void;
   
• clarify the ‘control’ exemption and narrow the definition of ‘associate’, such that acquisitions of certain types of minority interest that do not deliver meaningful control are now more clearly not notifiable. In particular, certain agreements such as dividend policy arrangements, arms-length financing arrangements, minority shareholder protection rights and arms-length standard shareholder or member agreements about governance processes are excluded from the definition of ‘associate’; and
   
• allow parties to seek extensions of up to six months if an ACCC approval becomes ‘stale’ (i.e. where the parties cannot complete a transaction within 12 months of clearance). At present, a fresh notification and clearance is required in that circumstance, but the amendment relaxes this strict rule.

The amendments will take effect the day after Royal Assent and go some way to counteract the consequences of the overcapture resulting from Australia’s new merger regime. 

Automatic voiding replaced with a Court-supervised model

Under current law, a non-notified acquisition that is put into effect is automatically void by operation of law, regardless of whether the failure to notify was deliberate or inadvertent and irrespective of whether there are any substantive anticompetitive effects. The amendments replace automatic voiding with a Court-supervised 'voidable' model, under which the ACCC may apply to the Federal Court for an order to declare an acquisition void.

Control exemption clarified

The amendments clarify the ‘control’ exemption and narrow the definition of ‘associates’, addressing concerns that the current rules can capture competitively benign minority investments. The analysis is now separated into two distinct limbs: (i) looking at the rights a party and its associates can enforce; and (ii) considering their practical influence on the target’s financial and operating policies. Important carve-outs have been introduced for many typical arrangements including minority shareholder protection rights, arm's-length financing arrangements, dividend policy arrangements, rights to dispose of securities and governance processes in standard shareholder agreements (that do not confer ‘control’). 

Greater flexibility for ‘stale’ clearances

Currently, an acquisition must be completed within 12 months of receiving ACCC clearance, after which the notification becomes ‘stale’ – requiring the parties to seek a new clearance. The amendments allow parties to seek extensions of up to six months where an ACCC approval becomes 'stale', providing a more practical alternative than re-running a fresh notification and clearance process where a transaction cannot be completed within 12 months.

Looking forward

While welcome, these amendments merely solve the consequences of the regime’s overcapture of acquisitions, but not the underlying causes.  

In our view, more work needs to be done to address the most conservative elements of the new regime that are driving overcapture, procedural complexity, and delay in domestic and international transactions, despite the ACCC’s generally pragmatic approach to merger review.

We welcome the opportunity to comment on the monetary thresholds through a detailed consultation that is intended to take place after a year of the new regime’s operation. 

We also recommend that Treasury urgently consider removing some elements of the new regime that are not required for a properly functioning merger control regime and are slowing the pace of reviews in practice. 

Chief among the issues for urgent attention are:

• a clear de minimis threshold for jurisdictional nexus – for example, a revenue-based threshold, set at a sensible, commercial level; 
   
• removing the 15-business day minimum review period, which serves no meaningful function in practice – as the ACCC has the expertise and experience to know when a simple transaction can be cleared after any required market inquiry and investigation; and 
   
• removing the 14-day post-clearance waiting period – this feature is out-of-step with most comparable international regimes, and slows completion in the vast majority of deals that raise no issues in practice. 

Further analysis

These amendments were first proposed in July 2026. For a further detailed examination of the changes, including the operation of the voidable model, the revised control exemption and the extension mechanism for ACCC clearances, read our earlier analysis:

Merger reform update: ‘targeted refinements’ take the sharpest edges off Australia's new merger regime