Final countdown: what the latest merger regime changes mean for your 2026 deal

The Federal Government has recently unveiled some significant changes to the new merger regime which were first foreshadowed by the Assistant Minister for Competition in mid-October 2025.^[1] These changes are designed to address concerns raised by stakeholders about potential over-capture of deals and uncertainty. Some of the updates will come into force from 1 January 2026 and the remainder have a deferred start date of 1 April 2026. 

The key changes include:

From 1 January 2026: 

• new exemptions for acquisitions of land and quasi-land rights, including for acquisitions of interests in land made in the ‘ordinary course of business’;
• limits to the circumstances in which minority interest holders will be treated as ‘connected entities’ for the purpose of assessing Australian revenue for notification thresholds;
• refinements to notification obligations regarding creeping or serial acquisitions; and
• updates to the notification waiver applications process. 

From 1 April 2026: 

• new control and asset monetary thresholds for notification commence. 

In this article, we unpack what these last-minute amendments mean for you if you are looking to do deals in 2026. 

Background

Australia’s merger control regime is undergoing its most significant transformation in decades, with the introduction of a new mandatory and suspensory notification system for certain acquisitions of shares and assets. From 1 January 2026, parties to transactions that meet specified monetary or control thresholds and do not fall within an exemption will be required to notify the ACCC and obtain clearance or obtain a notification waiver before completing the deal. 

Overview of existing monetary thresholds for notification and further changes

Changes to the notification thresholds will be introduced progressively. 

New ‘ordinary course of business’ exemption for land acquisitions

There is a new exemption from notification requirements for acquisitions of interests in land that occur in the ‘ordinary course of business’.^[5] This exemption will apply regardless of whether the transaction is structured as a direct acquisition or as an acquisition of shares or units in a land entity.

The broader economic context is important, but generally, routine acquisitions of a legal or equitable interest in land, whether freehold or leasehold will fall within this new exemption. The Explanatory Statement clarifies that the exemption is intended to apply to routine business activities in the relevant sector (rather than that of the particular acquirer). Importantly, the exemption may still apply even if the particular acquirer does not undertake such transactions frequently or if the investment is large^[6].

The exemption does not apply to acquisitions in certain designated sectors (supermarkets currently fall within this designated class). The Explanatory Statement also makes it clear that the exemption will not apply to acquisitions: of land on which a competitor is operating a business; that involve the transfer of production capacity from one competitor to another; or for the purpose of land banking.

Property transactions previously considered by the ACCC

The Determination currently provides an exemption for acquisitions of equitable or legal interests in land where an earlier equitable interest in relation to the same land has previously been notified to the ACCC and cleared under the new merger review process. This exemption avoids multiple notifications for what are, in substance, single acquisitions occurring in stages (for example, pursuant to an agreement for lease). The updated exemption will also apply to: 

• quasi-land rights;^[7]
• transactions where the acquisition of the initial interest is subject to a notification waiver; and
• transactions where the initial interest in land was acquired prior to 1 January 2026 (regardless of whether the acquisition of that initial interest was cleared by the ACCC). 

Narrowing the definition of ‘connected entity’

The concept of ‘connected entities’ is central to determining which entities’ Australian revenues are aggregated for the purposes of the notification thresholds. Connected entities include entities that are in a position to exercise control over a relevant entity, either alone or together with one or more associates.

The amendments make it clear that investors in unlisted companies with fewer than 50 shareholders are not treated as ‘associates’ simply because they hold ordinary minority shareholder protection rights. That is, rights that:

• mirror those typically granted to minority shareholders to safeguard their financial interests;
• are proportionate to that purpose; and
• do not give the holder, alone or with others, power to control: board composition, the appointment or dismissal of senior managers (or any veto over such decisions), or the company’s financial or operational policies. 

Refinements to the serial acquisition notification thresholds

The changes also refine the serial (or ‘creeping’) acquisitions notification thresholds. 

In addition to the existing exclusion for transactions involving revenue of <$2 million, the following transactions are also exempt from being counted towards the ‘3-year look back’, including: 

• share acquisitions where the acquirer has not begun, or cannot begin to control, the target;
• assets that have subsequently been divested or disposed of; or
• if the acquisition is of an asset, the acquisition does not have the effect that a person will, or can, acquire all, or substantially all of the assets of a business, and the market value of the asset is <$2 million. 

This is a welcome and pragmatic refinement to the new merger regime and ensures that only current, relevant holdings are considered when assessing whether notification is required. 

Waivers

The amendments simplify and clarify the notification waiver process, giving businesses greater certainty. A brief summary of the deal and the ACCC’s decision will now only appear on the public register within one business day of the ACCC’s decision, keeping the transaction confidential until that point. For sensitive deals, for example, surprise hostile bids or some voluntary financial-sector transfers, publication on the ACCC’s Acquisitions Register may be deferred or omitted altogether. The ACCC must rule on a waiver within 25 business days; if it fails to do so, the ACCC is deemed to have refused the application for a notification waiver. 

Further changes to other notification exemptions

The changes to the new merger regime significantly broaden and clarify certain exemptions from notification obligations, particularly in the context of financial and restructuring transactions. These updates include expanded exemptions in relation to external administration, routine financial market operations, nominees and financing arrangements, as well as exemptions for foreign exchange contracts and some superannuation-related acquisitions. 

Key considerations for dealmakers 

With less than a fortnight until the new mandatory merger regime takes effect, if you are planning to do a deal in 2026, proactive and early consideration of merger control will be necessary to ensure compliance and minimise deal risk. The latest amendments provide some greater clarity and targeted exemptions, but also create additional complexity, and the new regime will require careful planning and early engagement on regulatory issues. 

We recommend you: 

1. Assess upcoming transactions and ensure regulatory conditions precedent are fit for purpose: reviewing your 2026 deal pipeline now will help to identify transactions that may be suitable for waiver applications, otherwise trigger notification obligations, or would benefit from new exemptions under the revised regime. For ongoing deals, it would be timely to consider whether conditions precedent remain ‘fit for purpose’ or need to be varied, given the progressive nature of the proposed amendments.
2. Update internal processes: it will be important to ensure your M&A, legal and compliance teams are across the new thresholds, exemptions and notification requirements, and adjust internal protocols and timelines accordingly. For firms that regularly acquire and divest other businesses, an M&A register will facilitate compliance with the 3-year look back requirements.
3. Engage early for advice: seek early guidance on structuring, application of exemptions and notification strategy to avoid delay. 

For a tailored briefing or confidential discussion about how the new merger regime may affect your business, please contact our Competition team.

^{[1] Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth); Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No.1) Determination 2025 (Cth). 
[2] The ‘3-year look back’ test does not apply to the acquisition of discrete assets. 
[3] Note that the votes of entities who are considered associates only because they have entered into, or have proposed to enter into, an agreement with the person for minority shareholder protect rights is disregarded for this determination.
[4] As above. 
[5] For completeness, acquisitions of assets that are not interests in land or intellectual property and that occur in the ordinary course of business are already excluded from notification obligations under the new merger regime.
[6] Specific examples provided in the Explanatory Statement include: (i) acquiring an interest in land for an office premises, headquarters or other routine trading activities; (ii) a property developer acquiring land for residential or commercial development; (iii) retailers acquiring land for a warehouse to store inventory; (iii) a manufacturer leasing land for a new manufacturing facility; (iv) an energy generator acquiring land for a solar farm; or (v) an energy distributor acquiring land to build pylons on.
[7] These are rights that require registration under a statutory scheme including in relation to: mining, quarrying, prospecting, water entitlements or land for forestry operations.}