Seven Months of Mandatory Merger Control in Australia: What the New ACCC Regime Has Taught Deal Parties

Australia’s mandatory and suspensory merger control regime has now been in force for seven months, and the practical lessons for deal parties are becoming clearer with each passing week. Since 1 January 2026, businesses proposing acquisitions that meet prescribed turnover and asset thresholds have been required to notify the Australian Competition and Consumer Commission (ACCC) and wait for clearance before completing their transactions. For joint venture teams, whether structuring a new 50/50 vehicle, acquiring a partner’s stake, or transferring assets into a shared entity, the regime has introduced a fundamentally different regulatory timetable.

This article distils what seven months of mandatory merger control in Australia have revealed about timing, compliance obligations, drafting imperatives, and enforcement signals, offering a practical playbook for in-house counsel, M&A advisers, and commercial executives navigating the new landscape.

Background, The New ACCC Merger Control Regime in Brief

The reform that took effect on 1 January 2026 replaced Australia’s previous voluntary, informal clearance system with a mandatory and suspensory notification framework. The Australian Government initiated the overhaul following the Treasury’s 2023 competition review, which concluded that a formal regime was necessary to bring Australia into line with most comparable jurisdictions, including the European Union, the United Kingdom, and the United States.

Under the new framework, acquisitions that meet the notification thresholds set out in the Competition and Consumer (Notification of Acquisitions) Determination must be notified to the ACCC before completion. The regime is suspensory: parties must not close until the ACCC grants clearance or the applicable statutory timeframes expire. The ACCC assesses whether a proposed acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market in Australia.

Key facts at a glance:

• Commencement date: 1 January 2026.
• Mandatory notification: Required for transactions meeting prescribed turnover and asset thresholds.
• Suspensory effect: Parties must not complete the transaction until ACCC clearance is obtained.
• Notification forms: Short form (for lower-complexity matters) and long form (for transactions raising competitive overlaps or market-impact concerns).
• Post-clearance pause: Even after ACCC approval, parties must observe a 14-day window before proceeding, during which third parties may apply to the Australian Competition Tribunal for review.

Timeline, Seven Months of Mandatory Merger Control in Australia

The merger clearance timeline has unfolded in distinct phases since commencement. Industry observers note that the ACCC moved quickly to process straightforward notifications in the early months, while more complex transactions, including several involving joint venture structures, required extended engagement. The following timeline captures the key milestones that deal parties have experienced across the first seven months of the regime.

Which JV Transactions Are Caught, Thresholds and Edge Cases

Not every joint venture formation or restructuring triggers mandatory notification under Australia’s merger notification thresholds. The obligation arises where the transaction constitutes an “acquisition” within the meaning of the Competition and Consumer Act and meets the turnover or asset thresholds prescribed in the Notification of Acquisitions Determination. The critical question for JV deal parties is whether their specific structure, asset contribution, share transfer, creation of a jointly controlled entity, or contractual arrangement, falls within scope.

The ACCC has indicated that the following factors are relevant: whether the transaction involves a change in control over assets or shares; whether it creates or modifies a jointly controlled entity that operates as an independent economic unit; and whether the parties’ combined activities meet the prescribed monetary thresholds.

Practical takeaways:

• Assess every JV transaction against the notification thresholds at the earliest structuring stage.
• Pay close attention to whether veto rights, board appointment powers, or reserved-matter provisions confer joint control.
• Where a contractual JV evolves into an incorporated entity, re-assess whether the incorporation step itself triggers notification.

Practical Implications for JV Deal Parties, Seven Lessons from the First Seven Months

The core value of this seven-month window is the practical intelligence it has generated. The following lessons distil the most significant insights for teams structuring and negotiating joint ventures under mandatory merger control in Australia.

• Lesson 1: Build the ACCC notification process into your project plan from day one. The suspensory nature of the regime means no transaction that meets the thresholds can close without ACCC clearance. Deal teams that treated notification as a late-stage formality experienced avoidable delays. The practical action is to map the ACCC notification process onto the deal timetable at the term-sheet or heads-of-agreement stage, not at signing.
• Lesson 2: Choose the right notification form early. The distinction between short-form and long-form notifications has real consequences for timing and cost. Short-form notifications suit transactions with limited competitive overlaps, while long-form notifications are required where the ACCC needs a fuller competitive assessment. Misidentifying the correct form can result in the ACCC requesting a resubmission, resetting the clock. Engage competition counsel early to assess which pathway applies.
• Lesson 3: Draft condition-precedent clauses with precision. Generic “regulatory approval” conditions are no longer sufficient. JV agreements should include specific conditions precedent tied to ACCC clearance under the new regime, with defined long-stop dates that account for realistic merger clearance timelines, including the possibility of a Phase 2 investigation and the 14-day post-clearance third-party application window.
• Lesson 4: Manage data room access and disclosure sensitivities carefully. The ACCC notification process requires disclosure of commercially sensitive information, including market shares, customer data, and competitive strategy documents. In JV transactions, where the parties may be current or future competitors, data room protocols, clean-team arrangements, and information-barrier agreements are essential to avoid gun-jumping and protect confidential business information.
• Lesson 5: Engage with the ACCC proactively. Early indications suggest that parties who engaged in pre-notification discussions with the ACCC experienced smoother review processes. Pre-notification engagement allows the ACCC to identify issues of concern early, reducing the likelihood of protracted information requests during the formal review period.
• Lesson 6: Prepare remedy proposals in advance for transactions with competitive overlaps. Where a JV involves parties with overlapping activities in the same market, the ACCC may require undertakings, such as divestiture of certain assets, behavioural commitments, or structural ring-fencing, as a condition of clearance. Deal teams should develop contingency remedy proposals before filing, rather than waiting for the ACCC to raise concerns.
• Lesson 7: Coordinate across jurisdictions. Many JV transactions with an Australian nexus also trigger merger control filings in other jurisdictions. The practical effect of multiple parallel filing obligations is that the Australian timetable must be synchronised with review periods in the EU, UK, or other relevant jurisdictions. Failing to coordinate can result in one jurisdiction clearing while another remains under review, creating a limbo that delays closing and increases holding costs.

JV Agreement Clause Checklist

Compliance Playbook, Step-by-Step ACCC Notification Process for JV Deals

The ACCC notification process follows a structured sequence. Understanding each step, and the decisions required at each stage, is essential for keeping a JV transaction on schedule under mandatory merger control in Australia.

1. Pre-notification assessment: Determine whether the proposed transaction meets the notification thresholds. Map the parties’ combined turnover and assets against the prescribed monetary tests. Identify any competitive overlaps between the JV partners’ existing activities.
2. Short form vs long form decision: Assess whether the transaction qualifies for the short-form pathway (lower complexity, limited overlaps) or requires a long-form notification (competitive overlaps, potential for substantial lessening of competition).
3. Preparation of the notification: Compile the required information, including party details, transaction structure, market definitions, customer and supplier information, and competitive analysis. For long-form notifications, prepare a detailed competitive-effects assessment.
4. Pre-notification engagement with the ACCC (recommended): Discuss the proposed transaction and notification approach with the ACCC informally before lodging. This step is voluntary but can identify potential concerns early and streamline the formal review.
5. Lodgement and formal review: Submit the notification to the ACCC. The statutory clock begins. The ACCC may issue requests for further information, which can pause or extend the review timeline.
6. ACCC decision: The ACCC issues a clearance decision, a decision to oppose, or clearance subject to undertakings (remedies). If clearance is granted, the 14-day third-party application window begins.
7. Post-clearance waiting period: Parties must wait 14 days after clearance before completing the transaction. During this window, third parties may apply to the Australian Competition Tribunal to review the ACCC’s decision.
8. Completion: Once the 14-day window expires without a Tribunal application (or the Tribunal upholds clearance), parties may proceed to close.

Short Form vs Long Form, Comparison

Practical takeaways:

• Allocate a minimum of several months in the deal timetable for the ACCC notification process, and longer for long-form matters or transactions raising competitive concerns.
• Factor in the 14-day post-clearance waiting period when setting expected completion dates.
• Ensure all party data, especially financial thresholds and competitive overlap information, is ready before lodging the notification to avoid stop-the-clock information requests.

Early Outcomes and Enforcement Signals

Seven months into mandatory merger control in Australia, the early data offers cautious reassurance for deal parties while underscoring the ACCC’s willingness to use its new powers. Industry observers report that the significant majority of notified transactions have been cleared, many through the short-form pathway. This pattern suggests the regime is functioning broadly as intended: filtering routine transactions efficiently while reserving investigative resources for matters that raise genuine competition concerns.

Several trends have emerged from practitioner analysis of the first six to seven months:

• High clearance rate for short-form notifications: Early indications suggest that most short-form notifications have been cleared without objection, consistent with the expectation that these transactions pose limited competitive risk.
• Longer timelines for complex matters: Long-form notifications involving horizontal overlaps or concentrated markets have attracted extended review periods and detailed information requests from the ACCC.
• Remedy engagement: The ACCC has engaged in remedy discussions with several parties whose transactions raised competition concerns. The likely practical effect will be that deal teams with foreseeable overlap issues should prepare remedy proposals early rather than waiting for the ACCC to initiate discussions.
• Enforcement posture: While major enforcement actions in the first seven months have been limited, the ACCC has signalled that it will pursue penalties for non-notification. The penalties for failing to notify a transaction that meets the thresholds, or for completing a notifiable transaction before clearance, include civil penalties, possible divestiture orders, and significant reputational damage.

Early indications suggest that the ACCC is particularly attentive to transactions in concentrated sectors, including resources, healthcare, and digital platforms, where competitive effects are more likely to arise. JV deal parties operating in these sectors should anticipate closer scrutiny and plan accordingly.

Practical Drafting Annex, JV Clause Examples and Staging Options

The following clause concepts illustrate how JV agreements can be adapted for the mandatory merger control environment. These are indicative only and should be tailored to the specific transaction with the assistance of competition counsel.

• Filing condition precedent: “Completion is conditional upon the ACCC issuing a clearance decision in respect of the Transaction under Part VIIIAB of the Competition and Consumer Act 2010 (Cth), and the expiry of the 14-day period referred to in [relevant section] without an application to the Australian Competition Tribunal for review of that decision.”
• Suspensory carve-out: “Nothing in this Agreement requires or permits any party to take any step towards completion, or to give effect to any aspect of the Transaction, prior to satisfaction of the Regulatory Condition Precedent.”
• Break fee trigger: “If the Regulatory Condition Precedent is not satisfied or waived by the Long-Stop Date, either party may terminate this Agreement by written notice, and Party A shall pay to Party B the Reverse Break Fee within [X] business days of such termination.”
• Interim conduct covenant: “During the period between signing and completion, each party shall conduct its business in the ordinary course, shall not dispose of or encumber any material assets to be contributed to the JV Entity, and shall refrain from any action that would or might constitute gun-jumping under applicable competition law.”

Common pushback in negotiations typically centres on the length of the long-stop date, the quantum and trigger conditions for reverse break fees, and the scope of interim conduct restrictions. Deal teams should anticipate these friction points and prepare reasoned positions supported by realistic merger clearance timeline estimates.

Seven Months of Mandatory Merger Control in Australia, Conclusion and Action Checklist

The first seven months of mandatory merger control in Australia have confirmed that deal parties who plan early, file accurately, and engage proactively with the ACCC achieve better outcomes. For JV teams in particular, the regime demands a more disciplined approach to transaction structuring, timetabling, and agreement drafting than the previous voluntary system ever required.

Immediate action checklist for JV deal teams:

1. Assess all pending and pipeline JV transactions against the current notification thresholds.
2. Engage competition counsel at the structuring stage, before signing, to determine whether notification is required.
3. Update JV agreement templates to include ACCC-specific conditions precedent, long-stop dates, filing obligations, and interim conduct covenants.
4. Build realistic ACCC review periods into project plans, including allowances for information requests and the 14-day post-clearance window.
5. Prepare contingency remedy proposals for transactions involving competitive overlaps.
6. Establish data room protocols and clean-team arrangements to manage disclosure sensitivities during the ACCC notification process.
7. Coordinate Australian filing obligations with any parallel merger control requirements in other jurisdictions.

Sources

1. Australian Competition & Consumer Commission (ACCC), Mergers and Acquisitions
2. Treasury, Competition Review 2023: Mergers and Acquisitions
3. Treasury, Reforming Mergers and Acquisitions: Notification Thresholds
4. MinterEllison, Six Months In: Navigating Australia’s New Merger Regime
5. Norton Rose Fulbright, Australia’s New Mandatory Merger Control Regime
6. Gilbert + Tobin, Merger Remedies Under Australia’s New Mandatory and Suspensory Merger Control Regime
7. Wolters Kluwer Competition Blog, The Transition to Mandatory Merger Control in Australia