ACCC Merger Clearance: letters from the front

1 January 2026 brought with it the most fundamental and sweeping changes to Australia’s competition merger control regime since the Trade Practices Act was introduced by the Whitlam Government in 1974.  

On New Years’ Day the ACCC’s previous ‘informal’ merger clearance process was replaced with a statutory regime which requires parties to provide the ACCC with a formal notification, and then wait for ACCC clearance, before completing a wide range of commercial transactions.

While the legislation for the regime was passed back in November 2024, much of the key regulatory infrastructure to support the new ACCC clearance regime remained in development throughout the whole of 2025, culminating in a raft of significant amendments to the main Ministerial Determination which were released on 18 December 2025.

By the numbers

Fears that the ACCC would be deluged by applications on New Years’ Day didn’t materialise (undoubtedly thanks in part to the last changes and clarifications to the Determination in December 2025), but it’s also fair to say the ACCC has been busy in the first two months of the regime.  A snapshot of what’s happened since 1 January is set out in the table below.  

It’s far too soon to pass any real judgement on the impact of the new regime on the economy as a whole, M&A activity generally, or even any specific industry sectors.  But after 2 months of the mandatory system being in place some trends are already beginning to emerge, and they point to some important practical considerations for dealmakers, and anyone else looking (or needing) to engage with the ACCC for clearance. 

Deal certainty in competitive sale processes

The legislation stipulates that an acquisition cannot be notified to the ACCC until – at least - all of the proposed parties to the acquisition intend to enter into the contract, arrangement or understanding pursuant to which the acquisition is to take place. In practice, this means prospective acquirers under a competitive sale process cannot start the formal notification process with the ACCC unless (and until) the vendor has made its decision. 

Unlike the old informal system, this means rival acquirers can’t obtain ACCC clearance before finalising their bids.  This has implications for both transaction certainty, and completion timing, in competitive sale processes.  

The ACCC has acknowledged this limitation, and in its FAQs it notes that it can engage with bidders under its pre-notification process, ‘with a view to facilitating a quicker assessment’ for the winning bidder once the outcome of the sale process is known.  While this is a helpful message from the ACCC, pre-notification is a long way short of the previous certainty that rival bidders (and vendors) could get under the old regime.

Knowing when to waive

Aside from formal ACCC notification, the new regime allows parties to apply to the ACCC for a waiver from the requirement to notify, which is a quicker (and cheaper) path for parties to manage the mandatory clearance requirements when their deal is caught.  While the waiver system is a welcome feature of the new regime, it’s not the right path for every deal.

Most importantly, the ACCC has made clear that it doesn’t expect ‘to go back and forth with a notification waiver applicant to request further information nor to undertake third party consultation as part of its assessment of notification waiver applications’.  Instead, the ACCC sees the waiver process as only appropriate for those acquisitions where all the details that the ACCC needs can be included in the waiver application form.  In contrast to the ‘pre-notification’ process many parties are accustomed to under the old informal clearance system, the ACCC doesn’t see the waiver path as appropriate if there’s anything they need to test further with the applicant.  

This approach can be gleaned from the reasoning provided by the ACCC in each of the situations where it has declined to grant a waiver (three in total, at the time of writing[1]).  In each case, the ACCC identified direct or vertical overlaps between the parties that with the ACCC indicating waivers could not be granted because there were potential competition issues that warranted further consideration under the notification process – including via consultation with relevant stakeholders.  

What’s important for parties to understand as part of this approach is that a waiver application doesn’t provide any timing advantages if it’s not granted.  Instead, if a waiver isn’t received, the parties are required to effectively re-start their ACCC engagement via a notification application. In that scenario, there’s no change to the statutory timeframe for ACCC clearance (meaning any time spent on the waiver process is effectively lost to the parties).  

Change will be a constant

Perhaps the one certainty about the new ACCC clearance regime is that it will continue to evolve.  In addition to the changes for commencement on 1 January, the updates on 18 December 2025 also included a range of new and updated notification thresholds which will only take effect from 1 April 2026.

Separately, in October 2025 the Assistant Minister for Competition, the Hon Dr Andrew Leigh, flagged the Government’s intention to introduce ‘practical adjustments’ to the new law which render transactions that aren’t notified and cleared by the ACCC as automatically void under Australian law.  The voiding provisions have been the source of great consternation for dealmakers and advisors, especially given some of the complexity that can arise when applying the notification thresholds (making an inadvertent failure to notify a genuine risk in some cases). 

As of the date of this article, no proposed legislative changes have been made available for comment, but the policy decision to make appropriate changes is strongly supported by the vast majority of the commercial and legal community.  With the Government signalling an intent to address aspects of the new regime that may give rise to more inadvertent outcomes, it seems likely that more proposals for change in response to stakeholder feedback will be canvassed.  And although it feels a way off in the distance, the Government has also committed to reviewing the notification thresholds after 1 January 2027, and then will conduct the first 3-year review of the regime as a whole in 2029.

Aside from regulatory changes, the ACCC has also worked extensively with stakeholders to help understand and engage with the new regime, including by putting out responses to ‘Frequently Asked Questions’.  Published on an iterative basis, this additional guidance doesn’t have any legal status but provides invaluable insights from the ACCC into how it is approaching questions around notification thresholds, filing requirements and other practical aspects of the new process.  With more discrete issues and questions about the new regime being inevitable, dealmakers and their advisors will need to keep hitting the ‘refresh’ button on the ACCC’s FAQ webpage for some time.