Ahead of Australia's mandatory merger control regime commencing on 1 January 2026, the government is continuing to make adjustments to the thresholds that determine which acquisitions need to be notified, and those that are exempt.

This article outlines:

• Further notification thresholds that the government is currently consulting on.
• Anticipated adjustments to the exceptions, along with substantive changes to the operation of the regime.
• Other issues that merger parties need to be aware of as we approach the transition to the new regime.

Notification thresholds

The MinterEllison team has previously outlined the notification thresholds that will apply under the new regime.
In summary, an acquisition of shares or assets will need to be notified if any of the following three thresholds are met:

• Economy wide threshold: The combined Australian revenue of the merger parties (including the acquirer, the target and their connected entities) is at least A$200 million and either:
  • Australian revenue of the target and its connected entities being acquired is at least A$50 million; or
  • the global transaction value is at least A$250 million; or
• Large acquirer: The Australian revenue of the acquirer and its connected entities is at least A$500 million (referred to as a ‘very large’ acquirer), and the target and its connected entities being acquired have Australian revenue of at least A$10 million; or
• Cumulative acquisitions: The combined Australian revenue of the merger parties (including the acquirer and the target and their connected entities) is at least A$200 million (A$500 million for a very large acquirer), and the cumulative Australian revenue from acquisitions that predominately involve the same or substitutable goods or services over three years is at least A$50 million (only A$10 million for a very large acquirer).A de minimis exception applies to targets with less than A$2 million Australian revenue, as well as acquisitions previously notified under the new regime.

(i) New 'control' related thresholds

The new regime includes a series of exemptions that we have outlined previously.  This includes an exemption from notification where the acquirer of shares in a company either: (i) already held control prior to the acquisition, or (ii) did not obtain control from the transaction.  The regime adopts a modified concept of 'control' from Australia's corporations law that focuses on the capacity to determine the outcome of decisions about the target's financial or operating policies.   

The government recently commenced further consultation on what are, in effect, 'exceptions to the exception'.  The proposed changes identify particular situations in which an acquisition of shares will need to be notified to the ACCC, irrespective of whether the acquirer obtains control (or already had control). If implemented, in circumstances where the monetary thresholds are met, notification will be required:   

• Crossing 20% (for unlisted entities): For acquisitions of an interest in a private and unlisted entity, notification will be required when voting power increases from ≤20% to >20%.This does not apply to either Chapter 6 entities or entities that are listed on a foreign approved stock exchange.
• Crossing 50% (all entities): For interests in all entities, notification will be required if voting power increases from >20% to >50% or more.  As noted above, this will apply whether or not the acquirer already held control.
• Crossing 20% (Chapter 6 entities): For acquisitions of an interest in a Chapter 6 entity under the Corporations Act, notification will be required when voting power increases from <20% to >20%. Again, this applies whether or not the acquirer already held control.
• Crossing 50% (Chapter 6 entities): For acquisitions of an interest in a Chapter 6 entity under the Corporations Act, notification will also be required when voting power increases from <20% to ≥50%. Again, this applies whether or not control is held / obtained either before or after the acquisition.

These new notification requirements adopt 20% and 50% voting power thresholds.  The government has adopted the 50% threshold as a bright line marker for majority control.  The 20% threshold is used as a bright line market for material influence and aligns with the 'substantial interest' concept that is used as part of Australia's foreign direct investment regime under the Foreign Acquisitions and Takeovers Act 1975.

The government has previously foreshadowed the need for a threshold that would ensure that the ACCC was able to review acquisitions of interests of 20% or more in unlisted or private companies.  This draft designation makes good on this commitment. In practice, while the monetary thresholds noted above will still need to be satisfied (and parties can consider the application of other exemptions), these changes will result in a material volume of additional transactions needing to be notified to the ACCC – particularly for the 20% threshold that will apply for private and unlisted entities.

The adjustments to the control exception do not displace other aspects of the regime.  For example, in light of the broad concept of control under the incoming regime, an acquisition of an interest of <20% in a private or unlisted company may nevertheless be notifiable where the acquiring party jointly obtains control together with one or more associates. 

(ii)  Further exemptions and changes to the regime

The business community and industry groups have continued to engage with the government about practical difficulties and unforeseen consequences that will arise from the regime. This will continue in the short window remaining before the regime commences on 1 January 2026, and then into next year, including as part of a formal review of the regime.    

The government is has responded. On 15 October 2025, the government announced refinements to the regime, informed by the ACCC's experience during the voluntary notification phase and stakeholder feedback.  These changes are intended to reduce the burden for low-risk transactions and make changes to the consequences that apply in the event a notifiable acquisition is not notified.  While the government has not yet provided drafting, these changes will require adjustments to the instruments setting the notification thresholds and the enabling legislation – they include:

• Exempting leases and other acquisitions of interests in land in the ordinary course of business, unless they are subject to targeted notification requirements (targeted thresholds may, for example, focus on specific sectors)
• Simplifying the approach to monetary thresholds for asset acquisitions
• Streamlining notification obligations around serial acquisitions
• Clarifying and expanding existing exemptions applicable to financial market activities.

The government also indicated that it intended to make adjustments to the automatic voiding provisions – that is, the effect of the regime that deems a notifiable acquisition that was not notified to the ACCC to have been void from the beginning.  The drafting of this change will be significant for merger parties and advisers, and will potentially avoid the significant and broad-reaching impact of the current drafting that has the effect of deeming deals void from the outset.  

Implications for merger parties

The exposure draft for the additional control-related notification requirements is currently open to feedback and will close on 3 November 2025.  We also expect further amendments to adjust some of the exemptions under the regime.

It is encouraging that the government is listening to the business community and making adjustments to the regime to address some unintended consequences.  However, the fact that this process is occurring a matter of weeks before the regime begins – including the introduction of new notification requirements – is unfortunate.

Merger parties and advisers should closely monitor developments in Australia as we approach the commencement of the incoming regime.  There are likely to be further 'tweaks' before the end of the year, and proactive planning is essential – not only to account for these adjustments, but also to prepare for the 'new world' that will begin from 1 January 2026.   

Get in touch with our merger control experts to ensure you are prepared for regulatory clearance processes under the incoming regime.