Australia Refines Merger Notification and Control Rules
Parliament has changed Australia's merger laws, replacing the automatic voiding of non-notified deals with a court-supervised process and clarifying rules on joint control.
Australia's Parliament has passed targeted but significant amendments to its mandatory merger control regime under the Competition and Consumer Act. The most notable change removes the rule that automatically voided a notifiable transaction that was completed without ACCC approval. Now, the ACCC must apply to the Federal Court for a declaration to void such a transaction, which the court can deny if it deems the outcome "undesirable," for instance due to harm to innocent third parties. This provides a crucial safety net against inadvertent non-compliance.
The amendments also refine the test for "control," narrowing the definition of "associates" for the purpose of assessing joint control. This change is intended to exclude ordinary commercial arrangements, such as minority shareholder protections and arm's-length financing, from triggering a notification obligation. Finally, the ACCC can now grant extensions of up to six months for completing a cleared transaction beyond the standard 12-month period. Dealmakers gain greater certainty and flexibility, but counsel must note the changes are not retrospective and should reassess deal structures and timelines accordingly.