Answering (some of) the threshold questions: Treasury releases updated ACCC clearance regime instrument

Registration of the mandatory ACCC clearance Instrument

Yesterday, Treasury released the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Instrument). This follows Treasury’s consultation on the exposure draft instrument released on 28 March 2025 (see our alert on the draft instrument here).

The Instrument contains the key details around notification thresholds, form requirements and filing fees that will apply to the new ACCC clearance regime - which will be mandatory from 1 January 2026 but can be used voluntarily from today.

The Instrument is the latest in a steady stream of updates on the new regime over the past few months, including:

• interim Merger Process Guidelines published by the ACCC on 30 June 2025, following consultation on the draft guidelines which we unpacked in our alert here. The interim process guidelines contain further guidance on several topics including pre-notification discussions, incomplete notification applications, when bidders in competitive processes should apply for clearance, goodwill protection provisions, the interaction between the foreign investment framework and ACCC review process and remedies. The final process guidelines are due to be released once the ACCC’s online acquisitions portal becomes available.
• updated merger reform FAQs published by the ACCC on 27 June 2025,
• final Merger Assessment Guidelines published by the ACCC on 20 June 2025. We previously discussed the draft assessment guidelines in our alert here. The final assessment guidelines clarify and build on a number of concepts, including how a merger may have the effect or likely effect of ‘creating, strengthening or entrenching’ a substantial degree of market power, and
• provisional guidance on the criteria for long form notification released by the ACCC on 28 March 2025 which we discussed in a previous alert here.
• the notification forms (including the public benefit application form) and an updated quick guide for business earlier today.

In brief - what’s changed?

Following an extensive consultation period, Treasury has made several key changes to the original draft instrument released in late March.  These include:

• The concept of ‘GST turnover’ has been replaced as the basis for testing against the notification thresholds with ‘Australian revenue’, which is to be determined in accordance with applicable accounting standards.  
• A 20% market value test has been introduced as a form of ‘fallback’ option for parties trying to work out how to attribute revenue to target assets, for the purposes of the notification thresholds.
• The definition of ‘connected entity has been simplified, while the phrase ‘connected with Australia’ will only relate to businesses that are being carried on in Australia (and won’t include those with a mere ‘intention’ to do so).
• To be counted for the purposes of the ‘serial acquisition’ notification thresholds, a previously acquired business must have been predominantly involved in supplying the same goods or services as the new target.
• Some broader exemptions (albeit with important exceptions) have been introduced for certain land and financial transactions.
• The notification form requirements for an application for the ‘public benefits’ phase of a review. Notably however, the notification requirements both for the long and short form application remain largely unchanged from the draft instrument.
• The Instrument now incorporates the various filing fees payable for applications or notifications. The only major change to these is a scaled approach to Phase 2 reviews, based on the market or transaction value of the proposed acquisition. 

More details

When will parties need to file?

As noted, the monetary filing thresholds remain unchanged from the draft instrument.  But there are several important changes in how parties are to determine whether an acquisition satisfies those thresholds.  These changes include:

• Australian revenue: The concept of ‘GST turnover’ has been removed in the final Instrument. Instead, parties to an acquisition will need to ascertain their ‘Australian revenue’ when considering whether their deal is notifiable. ‘Australian revenue’ is defined as ‘so much of the entity’s gross revenue, determined in accordance with accounting standards, for the entity’s most recently ended 12-month financial reporting period, that is attributable to transactions or assets within Australia, or transactions into Australia’.
• Revenue attributed to assets: The Instrument provides a limited ‘fallback’ test if it is not reasonably practicable to attribute the Australian revenue of a target to an acquisition of assets, the amount to be considered in determining whether any notification thresholds are met will be 20% of the market value of the assets. The Explanatory Statement to the Instrument includes some limited examples of how and when this fallback option is intended to work.
• Connection with Australia: A transaction will only be notifiable if the target carries on a business in Australia. It will not capture instances where there is an intention by the target to carry on business in Australia (which Treasury were previously consulting on).
• Connected entities: This concept is now defined by reference to section 4A of the CCA or section 50AA of the Corporations Act 2001 (Cth) (and no longer references the wider and more complex definition of ‘associated entity’ in the Corporations Act 2001 (Cth)). At a high level, the concept includes any party that is a related entity of the relevant party, ‘controls’ the relevant party or is ‘controlled by’ the relevant party.