What you need to know
- On 10 September 2026, Parliament passed targeted refinements to the Competition and Consumer Act 2020 (Cth) (CCA) that amend the operation of Australia's mandatory and suspensory merger control regime.
- The core suspensory rule remains: a notifiable acquisition must not complete unless and until the ACCC approves it or grants a notification waiver, and completing without notification will still breach the CCA and may attract civil penalties.
- However, failure to file a notifiable transaction will no longer result in that transaction being automatically void; instead, the ACCC will need to apply to the Federal Court for a declaration that the acquisition is void.
- Automatic voiding will continue to apply where parties put a notified acquisition into effect before it can lawfully proceed (for example, when the ACCC is still reviewing the transaction and approval has not yet been granted, the period for third party review has not yet expired, the ACCC has prohibited the acquisition or an initial clearance determination has become "stale").
- The control exemption has been refined so that ordinary commercial arrangements, including certain minority shareholder protection rights, arm’s-length financing agreements and standard shareholder governance arrangements, are less likely to make parties “associates” who may exercise joint control over an entity.
- Parties who are unable to complete a transaction within 12 months of ACCC clearance may now seek extensions of up to six months each, instead of needing to re-notify the transaction.
What you need to do
- Review upcoming acquisitions against the amended notification rules, particularly where the analysis turns on control, joint control or whether other investors are “associates”.
- As the changes are not retrospective, carefully assess any non-notified acquisitions completed before commencement of the changes where notification may have been required. Do not assume that the new Court-supervised process will cure historical non-compliance.
Introduction
On 10 September 2026, Parliament passed targeted refinements to the Competition and Consumer Act 2010 (Cth) (CCA) that amend the operation of Australia's mandatory and suspensory merger control regime. The amendments are designed to reduce some unintended consequences of the regime, particularly for non-notified acquisitions and ordinary commercial shareholder arrangements, while preserving strong incentives to notify transactions that meet the thresholds to the Australian Competition and Consumer Commission (ACCC). The new laws commence the day after Royal Assent is provided by the Governor General.
Non-notified transactions to be voidable rather than automatically void
Previous position: acquisitions that should have been notified prior to being put into effect were automatically void
Previously, an acquisition was automatically void "as if it never occurred" if it was required to be notified to the ACCC but was not notified before it was put into effect. This automatic voiding provision applied regardless of whether the failure to notify was deliberate or inadvertent. The Explanatory Memorandum noted that this may have had "widespread unintended consequences in relation to non-notified acquisitions", and presented serious risks to ancillary parties to a transaction. The risk of a transaction being automatically void has also led to businesses and their advisers taking a more cautious approach to notifying transactions, which is likely resulting in a larger number of notifications than is strictly required under the new regime, thereby imposing unnecessary costs on businesses and also the ACCC.
New position: ACCC must apply to Court to declare a non-notified acquisition 'void'
The CCA now provides that an acquisition that was required to be notified to the ACCC but was put into effect without notification is no longer automatically void by operation of law. Instead, the ACCC can apply to the Federal Court of Australia (Court) to make a declaration that the non-notified "acquisition is, and is taken to have always been, void". On the ACCC’s application, the Court may also make other orders it considers desirable to deal with the consequences of a non-notified acquisition, including orders for divestiture of shares or assets and orders dealing with transfer of title or amendments to registers.
The Court must declare that the non-notified acquisition is void unless it believes it is "undesirable" to do so. In considering what is "undesirable", the Explanatory Memorandum notes the Court may consider whether making a voiding declaration could cause significant harm to innocent third parties, or whether the vendor company has been wound up and no longer exists.1 The Court cannot, however, consider whether the non-notified acquisition could have an effect on competition or would be of public benefit – so the Court will not be able to refuse to declare an acquisition void on the basis it could not lessen competition.
Only the ACCC can apply to the Court for a voiding order. However, any third party that is affected by the consequences of an acquisition being declared void can apply to seek relief from the Court. There is a 6-year limitation period for the ACCC or a third party to make any of these applications to the Court.
Additionally, the CCA provides the Court with procedural powers under a new section 77F to grant injunctions where the ACCC is investigating whether to seek a voiding declaration or seek a divestiture, or ha s already applied for a declaration. The purpose of this power is to preserve the position of a target of the acquisition while the matter is being resolved, and to prevent parties from 'gun jumping', i.e., putting a transaction into effect while an investigation or court proceeding is ongoing.
Importantly, this is not a relaxation of the obligation to notify under Australia's mandatory and suspensory merger regime. A notifiable acquisition is still prohibited from being completed unless and until the ACCC approves it or grants a waiver from the requirement to notify, and putting it into effect without doing so will still constitute a breach of the CCA and attract civil penalties. The practical effect of the amendment is to replace automatic invalidity for non-notified acquisitions with a Court-supervised remedial process, not to reduce the importance of front-end notification analysis.
Automatic voiding continues to apply to some transactions
Automatic voiding provisions will still apply in the following situations:
- If a notified acquisition is put into effect before it has been "finally considered", i.e., before the ACCC or Australian Competition Tribunal (as applicable) has made a determination, and all relevant review periods have elapsed;
- If the ACCC determines an acquisition must not be put into effect, and the ACCC has not subsequently determined that the acquisition is of net public benefit; and
- If the acquisition has been notified and cleared but the most recent notification is "stale" (that is, the 12 month period within which the acquisition may be put into effect has expired without extension (discussed further below)).
Additionally, the changes are not retrospective: acquisitions that required notification but were not notified, and which completed before commencement of these changes, remain subject to the previous automatic voiding rule.
Changes to control provisions
Previous position: broad range of circumstances where "associates" may jointly control an entity
Generally, an acquisition of shares will not require notification merely because the monetary thresholds are met if, immediately after completion, the acquirer will not control the target entity, or if the acquirer already controlled the target entity before completion – this is commonly referred to as the control exemption. However, the control exemption is subject to important qualifications: certain non-controlling share acquisitions may still be notifiable where the monetary thresholds are met and the acquisition crosses specified voting-power thresholds, including relevant movements above 20% or to 50% or more.
Control refers to the capacity of one entity to determine the outcome of decisions about another entity's financial and operating policies, per the meaning of control in section 50AA of the Corporations Act 2001 (Cth). But the merger regime incorporates some slight amendments to the Corporations Act position; most importantly, it recognises joint control of a company by associates.
The definition of "associates" was adopted from Chapter 6 of the Corporations Act, which deals with takeovers. This definition is particularly broad, potentially deeming even minority shareholders in a body corporate, with limited if any capacity to control the body corporate in their own right, as "associates" holding joint control with the majority shareholders.
New position: narrower range of circumstances where "associates" may jointly control an entity
The new section 51ABSB of the CCA narrows the definition of "associate" for the purposes of joint control to ensure that only relevant agreements or concerted actions that have the potential to be competitively significant are considered when assessing the existence of joint control.
Under the new definition in the CCA, a person is an "associate" with a second person in relation to a particular body corporate if, and only if, one or more of the following elements are applicable:
-
The person and the second person are in the same corporate group (e.g. one body corporate controls, or is controlled by, another body corporate, or both entities are controlled by the same body corporate);
-
The person and the second person propose to enter into an agreement for the purpose of controlling or influencing the outcome of decisions about the particular body corporate's financial and operating policies; and/or
-
person and the second person propose to act in concert in relation to controlling or influencing the outcome of decisions about the particular body corporate's financial and operating policies.
The amended "associate" definition is intended to narrow the range of relationships that need to be considered for joint control. The CCA sets out some specific exceptions to the definition of "associate" to exclude persons who merely have rights (enforceable in the present or the future, or conditional) under:
- an agreement that affords them one or more of the following rights:
- the right to dispose of securities in the designated body;
- minority shareholder protection rights (applying irrespective of the form of the agreement);
- a dividend-policy agreement;
- an arm’s-length financing agreement; and
- arm’s-length standard shareholder agreements about governance processes (e.g. deeds of accession).
These exclusions are not absolute. They apply only where the association would arise merely because the relevant agreement confers the specified rights, and a person may still be an associate because of other rights, agreements or conduct.
Additionally, the Minister is given three separate determination powers to provide flexibility to update or calibrate the meaning of 'associate' over time. Legal teams should therefore monitor not only the primary legislation, but also any future instruments or issued determinations that affect the control exemption analysis.
When do persons jointly control a target entity?
With the changes to the definitions of "control" and "associate", the practical questions to ask are:
-
First, whether the acquirer has a relevant “associate” in relation to the target (having regard to the matters outlined above); and, if so
-
Whether the acquirer and that associate together have the real and practical capacity to determine the outcome of decisions about the target’s financial and operating policies.
This distinction will be important for consortium bids, minority investments, joint ventures and shareholder arrangements where parties may have overlapping rights but not practical control
The Explanatory Memorandum suggests that these modifications will narrow the range of people who will need to consider whether joint control exists – resulting in more targeted notifications to the ACCC based on potential risks to competition, reduced compliance costs and greater certainty for parties engaging in ordinary commercial arrangements.
In accordance with other existing provisions of the CCA, the new amendments to the "control" exemption and the definition of "associate" will apply to acquisitions of units in unit trusts or interests in managed investment schemes as well as to share acquisitions.
Extensions before notifications become stale
Current position: ACCC approvals become stale after 12 months
Once the ACCC approves a notified acquisition, parties must complete within 12 months of the ACCC decision to avoid needing to re-notify.
New position: ACCC may grant 6 month extensions
Under the amendments, notifying parties can seek an extension of up to six months from the ACCC to put a transaction into effect beyond the initial 12-month period following the issue of a determination. Multiple extensions can be granted by the ACCC.
When assessing whether to grant an extension request, the ACCC must have regard to whether:
- There are reasonable reasons why the acquisition has not been put into effect;
- There have been material changes to the market since the initial determination was made; and
- It would be more appropriate for there to be another notification of the acquisition.
The Explanatory Memorandum gives complex multi-jurisdictional transactions as an example, including where an overseas regulator requires additional time or overseas approvals are subject to litigation.
What you need to do
- Speak to your Ashurst adviser about the new changes, and whether your transaction may be affected.
- Continue to assess notification obligations early, including general monetary thresholds, cumulative or serial acquisition rules, targeted notification requirements, control and associate analysis, exemptions and waiver options.
- Assess the impact of the ACCC's new power to grant extensions before notifications become stale on deal timelines.
Want to know more?
Authors: Alyssa Phillips, Partner; Justin Jones, Partner; John McKellar, Partner; Matthew Harper, Senior Associate and Venthan Brabaakaran, Knowledge Lawyer.
