On 28 March 2025, Treasury published an exposure draft of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Draft Determination) for public consultation. Interested parties have been asked to comment on the Draft Determination by 2 May 2025.

This follow the ACCC's release of draft merger process guidelines (Draft Guidelines) on 27 March 2025, which are intended to replace the existing 2013 Informal Merger Review Process Guidelines. The ACCC has asked interested parties to comment on the Draft Process Guidelines by 28 April 2025.

These materials follow on from the ACCC's release of draft analytical guidelines and transitional guidance. Australia's mandatory merger control regime takes shape, provides more information.

We have set out the key takeaways from the Draft Determination and Draft Guidelines below:

Notification thresholds

General thresholds

The notification thresholds set out in the Draft Determination are generally consistent with past announcements. For ease of reference, we have set out the proposed general thresholds below.

Economy-wide threshold

Notification is required where both of the following limbs are satisfied:

• The combined Australian GST Turnover of the Acquirer and its 'connected entities' and Target and its 'connected entities' is $200 million or more; AND
  Either:
• The Target and its 'connected entities' has Australian GST Turnover of $50 million or more; OR
• The transaction value of the acquisition (i.e., the higher of the consideration or market value) is $250 million or more.

Very large acquirer threshold

Notification is required where both of the following limbs are satisfied:

• The Acquirer and its 'connected entities' have Australian GST Turnover of $500 million or more; AND
• The Target and its 'connected entities' have Australian GST Turnover of $10 million or more.

Three-year cumulative threshold

Notification is required where both of the following limbs are satisfied:

• The combined Australian GST Turnover of Acquirer and its 'connected entities' and Target and its 'connected entities' is $200 million (or the Acquirer and its 'connected entities' has $500 million or more in Australian GST turnover); AND
• The cumulative Australian GST Turnover from the Acquirer and its 'connected entities' acquisition of the same/substitutable goods/services over 3 years is at least $50 million (or $10 million if a large Acquirer is involved).

The 3-year look back is subject to a de minimis exemption for acquisitions of targets with less than $2 million in Australian GST turnover.

For the purpose of calculating the cumulative turnover threshold, the Acquirer Group does not need to include previously notified acquisitions.

'Connected entities' include subsidiaries, parents, certain commonly controlled entities, and entities in which a party can determine the outcome of decisions about their financial and operating policies.

Specific thresholds

As expected, the Draft Determination stipulates that major supermarkets (currently as Coles and Woolworths) will be required to notify the ACCC if they undertake any of the following acquisitions (regardless of whether they acquire control as part of the relevant transaction):

• acquire in whole, or in part, a 'supermarket business' (as defined by section 5 of the Competition and Consumer (Industry Codes – Food and Grocery) Regulations 2024); or
• acquire a legal or equitable interest in land (in whole or in part) of a certain size. Lease extensions or renewals for land that have a currently operating commercial business on it are not captured.

The Government has flagged two additional targeted notification requirements (that have not been included in the Draft Determination) – i.e., targeted notification requirements for liquor, pathology, and oncology as well as transactions involving acquisitions of interests of more than 20% in unlisted or private companies where at least one merger party has more than $200 million in turnover.

Exemptions

The Draft Determination exempts the following types of land acquisitions from notification:

• Residential property developments – i.e., acquisitions made for the purpose of developing residential premises.
• Certain commercial property acquisitions – i.e., acquisitions by businesses primarily engaged in buying, selling or leasing land, where the acquisition is for a purpose other than operating a commercial business on the land.

Acquisition of legal or equitable interests in land are expressly exempt from notification if the acquisition is the extension or renewal of a lease over land on which a commercial business is currently being operated. This is to facilitate routine lease renewals or extensions for land already in commercial use.

The Draft Determination includes exemptions for other acquisitions. For example, acquisitions by administrators, receives and liquidators and acquisitions related to certain fundraising activities (e.g., rights issues, dividend reinvestment/share bonus plans, underwriting of fundraising and buy-backs).

The Government has also flagged that there will be a safe harbour for acquisitions of less than 20% voting power in listed companies or schemes or unlisted companies with more than 50 members. This exemption, however, has not been included in the Draft Determination.

Key takeaways

The Draft Determination provides detail on the following key concepts:

• Connection to Australia: A transaction will only be notifiable if it is 'connected with Australia'. A transaction will be connected to Australia under the new regime if the target carries on, or intends to carry on, business in Australia (as defined by section 21 of the Corporations Act).
• Australian GST Turnover: For the purposes of applying the notification thresholds, the Draft Determination provides that turnover will be determined:
• at the date on which a contract, arrangement, or understanding has been entered into, pursuant to which the acquisition is to take place; and
• in accordance with the definition of current 'GST turnover' (which has the same meaning as in section 188-15 of A New Tax System (Goods and Services Tax) Act 1999).
  
  Current GST turnover of an entity is the sum of the values of all the supplies that the entity made or is likely to make in the period of 12 months ending with the current month. This calculation excludes certain supplies, including input taxed supplies, supplies that are not for consideration, and supplies that are not made in connection with a business or other enterprise that the entity carries on. The concept of GST turnover has been used as businesses are already required to report the value of their taxable and GST free supplies in their Business Activity Statements.
• Global transaction value: The global transaction value threshold will be calculated by reference to the higher of the market value for the shares or assets being acquired, or the consideration paid that has been paid for them (including both cash and non-cash consideration).

Notification process

Waivers

In terms of the notification process, businesses can apply for a 'notification waiver' for acquisitions that appear unlikely to meet the above notification thresholds or which do not raise competition concerns. All waiver applications will be listed on the Acquisitions Public Register. The ACCC has stated that it aims to resolve most waiver decisions within 20 business days, but will not do so until an application has been publicly accessible on the Register for at least 10 business days. The ACCC has advised that the waiver process should not be seen as a substitute for formal notifications in situations where competitive concerns arise. The ACCC's decision on waivers will be published on the Register.

Pre-notification engagement

In its Draft Guidelines, the ACCC has advised that parties should engage with the ACCC in pre-notification discussions. The ACCC has encouraged businesses to begin pre-notification discussions at least two weeks before the intended formal notification date. Engagement should be earlier in cases involving concentrated markets, global transactions under review by other competition authorities, or where commitments or undertakings might be necessary. If the acquisition is part of a global deal being scrutinised by international competition agencies, businesses can discuss synchronising the ACCC's assessment timing with overseas agencies as part of pre-notification engagement. The depth of pre-notification engagement will vary based on the acquisition's complexity. Engagements are typically confidential and can commence if the acquisition hasn't been publicly announced.

Forms

The Draft Determination sets out the information and documents that need provided with notification forms. The ACCC has released draft guidance on when a long-form notification is likely to be appropriate.

Short and long form

Information

Information about the parties.

A non-confidential summary of the transaction, including:

• a description of the products and services supplied by the parties;
• the transaction structure;
• the transaction value;
• consideration payable;
• commercial rationale; and
• information about any overseas filings.

Turnover information for each party for the past three years.

List of acquisitions made by each party over the past three years.

Information about goodwill protection provisions in the transaction documents.

Information about each relevant product or service supplied or potentially supplied by the parties.

Estimated market shares for each party/other key suppliers for each relevant market for the past three years.

Contact details for competitors and customers for each relevant product or service supplied.

Documents

• Final or most recent versions of all transaction documents.
• Most recent audited financial reports and income statements relating to the supply of relevant products or services for each party.
• An organisation chart or diagram showing the structure of ownership and control of the parties, including depicting the entities involved in the supply of the relevant products or services.
• A declaration by an authorised person of each party declaring (among other things) that, to the best of their knowledge and belief, the information/documents provided are true, correct and complete.
• Any other information or documents that would reasonably be considered by an objective third party to be relevant to the ACCC's assessment of the acquisition.

Long form only

Information

• Description of any existing or proposed commercial relationships between the parties.
• Details of the sales process undertaken in relation to the target, including details of any alternative proposals in the 12 months prior with the reasons for not proceeding with those proposals.
• Information as to whether any party has non-controlling shareholdings or cross-directorships in companies that supply similar products or services to the parties.
• Information about the data used for market share calculations.
• Examples of any entry into the relevant market for the past three years as well as any expected future entry. This should include a description of the factors influencing entry into the market.
• List of suppliers who have ceased supply of the relevant products/services over past three years.
• List of any third-party datasets or reports used by the parties to the acquisition to estimate or analyse its own and competitors’ market shares in the supply of the relevant products or services.
• Further questions are also required to be answered in the appendixes of the long form notification, e.g., that are specific to horizontal, vertical and conglomerate acquisitions.

Documents

• Certain documents relating to the proposed acquisition in the possession, power or control of each of the parties that were prepared by or for, or received by, any member of the Board or Board Committee (or equivalent body) or the shareholders’ meeting of the party within the past 3 years.
• Certain documents (including, but not limited to, reports, presentations, studies, internal analyses, industry/market reports or analysis, including customer research and pricing studies) held by the parties that were prepared, received or published within the past three years.
• List of the documents that the parties consider, or a reasonable objective third party would consider, to most comprehensively support the responses given in the notification.

Below threshold transactions

The current prohibition against anti-competitive mergers will remain in place, even once the new regime commences. The effect of this is that for ‘below threshold’ transactions, residual risk will remain under Australian law if it is likely that the acquisition might substantially lessen competition in a market. While the ACCC failed to convince the government to maintain market concentration thresholds, the retention of section 50 means that the ACCC will continue to be able to investigate smaller transactions that may harm competition in Australia.

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