On 10 September 2026, the Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Bill 2026 (Cth) (Bill) was passed by Parliament, which implements material changes to the ACCC’s mandatory notification regime. The automatic voiding provisions for acquisitions that are required to be notified but are not (referred to in the explanatory memorandum and this alert as ‘non-notified acquisitions’) have been removed. The Bill also contains important changes to the associate and control tests, as well as a new power for the ACCC to extend the 12 month period within which acquisitions must be put into effect following ACCC approval by a further 6 months in certain circumstances. The changes are effective for all acquisitions put into effect after 16 September 2026.
Key takeaways
- From 16 September 2026, non-notified acquisitions that are put into effect will be voidable rather than void – this means the ACCC will need to initiate Court proceedings to have the acquisition declared void. The ACCC has 6 years to bring an action in Court, but the Court can extend that timeline so long as the application is only for an order to deal with the consequences of voiding.
- Substantial civil penalties for putting a non-notified acquisition into effect remain, meaning careful analysis of the notification thresholds is still essential.
- Automatic voiding also remains in some circumstances. This is when parties put an acquisition into effect (i) while the ACCC is still considering the notification, (ii) where the ACCC has determined a notified acquisition must not be put into effect (and has not determined the acquisition is of net public benefit), and (iii) where the notification is stale.
- The Bill does not have any retrospective application - acquisitions that were put into effect prior to 16 September 2026 which met the thresholds and were not notified to the ACCC are and remain void.
- The Bill refines and narrows the meaning of ‘control’ and ‘associate’ with the intent that only more competitively significant relationships are caught.
- The Bill introduces a flexible and straightforward extension process to prevent the ACCC’s approval or public benefit determination from becoming ‘stale’, so that parties are not required to re-notify the ACCC if they do not complete within 12 months.
Void to voidable changes
The shift from automatic voiding regime to a court-supervised voidable regime marks a meaningful recalibration of Australia's merger control regime. The explanatory memorandum notes that the change is intended to address ‘widespread unintended consequences in relation to non-notified acquisitions’. This will be welcome news for many businesses presently navigating the complexities of the notification and other thresholds and weighing the high risk of non-notification for getting the assessment wrong. Parties continue to be subject to civil penalties for putting acquisitions that should have been notified but were not into effect.
While only the ACCC is empowered to seek an order that an acquisition is void, new 77E provides that another party who is affected by an acquisition that is declared void can apply to the Court for remedial orders.
How long does the ACCC have to seek a declaration that a non-notified acquisition is void?
The ACCC can bring proceedings to have a non-notified acquisition declared void anytime 6 years of the application being put into effect. However, the Court can also grant extensions ‘so long as the application is only for an order to deal with the consequences of voiding.’ These extensions of time are also available to parties who apply to the Court for remedial orders following a voiding decision.
How will the Court consider applications?
Under new section 77E of the CCA, only on the application of the ACCC, the Court must make an order declaring that an acquisition is void if the Court is satisfied that (i) the acquisition was required to be notified, (ii) the acquisition was not notified, and (iii) the acquisition was put into effect.
The Court can also make any other orders that it believes are desirable, including an order for divestiture of shares and assets.
In determining whether to make an orders, including that an acquisition is void, that shares or assets be divested or to provide remedies, the Court must not have regard to the following matters:
- whether the acquisition would have the effect or likely effect of substantially lessening competition; or
- whether the acquisition would or could result in public benefits that outweigh likely public detriments.
The explanatory memorandum indicates that the intention of this amendment is to ensure the ACCC is preserved as the ‘first-instance expert administrative decision-maker’ and that any reconsideration of those issues is carried out by the Australian Competition Tribunal.
Additional ACCC and Court powers
New section 77F has been inserted, which provides the ACCC with a power to seek an injunction restraining parties from engaging in conduct if it is investigating whether to (or is applying for) a voiding or other order under new section 77E.
The Court may grant such an injunction if the Court is of the opinion that it is desirable to do so pending the outcome of the ACCC’s investigation or the determination of the ACCC’s substantive application for voiding or other orders.
The Bill also clarifies that when the Court makes orders regarding the transfer of assets, the Court can make orders directing corresponding steps to be taken, such as updates to the land title register or other arrangements that might be required to transfer the title to an asset.
Existing penalties remain
Parties will be exposed to civil penalties if they put a non-notified acquisition into effect. Penalties are the greater of (i) $100 million, (ii) 3 times the value of the benefit obtained, or (iii) 30% of the Australian turnover of the party who needed to make notification.
Further, even if an acquisition doesn’t require notification because the notification thresholds aren’t met, parties should remain mindful of the longstanding obligation in section 50, which prohibits acquisitions of shares or assets if the acquisition would have the effect or likely effect of substantially lessening competition.
Control and associates changes
New sections 51ABSA and 51ABSB have been inserted to address changes to the meaning of ‘control’ and ‘associate.’
Section 51ABSA provides (relevantly) that a person only controls a body corporate if the person and one or more of their associates ‘jointly have the capacity’ to determine the outcome of a body corporate’s financial and operating policies. Importantly, both association and joint practical capacity must exist before joint control arises. In addition, section 51ABSB narrows the definition of associate so that only more competitively significant relationships are caught, and clarifies that certain arrangements and roles do not, of themselves, make a person an ‘associate.’
The explanatory memorandum notes that these changes are intended to ‘allow for more targeted notification obligations based on potential risks to competition, reduce compliance burden, and provide greater certainty for parties engaging in ordinary commercial arrangements.’
ACCC powers to extend approved notifications
The Bill introduces a flexible and straightforward extension process to prevent the ACCC’s approval or public benefit determination from becoming ‘stale’, so that parties are not required to re-notify the ACCC if they do not complete within 12 months.
On written request by the notifying party, the ACCC may extend the 12-month period by up to six months per extension (with no limit on the number of extension requests that can be made).
In deciding whether to grant an extension, the ACCC 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, and
- it would be more appropriate for there to be another notification.
This is particularly relevant for complex, multi-jurisdictional transactions where completion may be delayed by overseas regulatory approvals or litigation.
