Introduction

• On 18 December 2025, Treasury introduced further key changes to the notification thresholds and exemptions that apply under the new mandatory and suspensory ACCC merger notification regime. These include:
  • Additional exemptions for certain types of land and quasi-land right acquisitions, including acquisitions of:
    • interests in land in the ordinary course of business;
    • interests in land and quasi-land rights put into effect or after 1 January 2026, where the acquirer previously acquired an equitable interest in the same land prior to 1 January 2026; and
    • land or quasi-land rights where the acquirer previously notified or obtained a notification waiver in respect of an equitable interest in the right.
  • New asset notification thresholds which vary depending on whether:
    • the asset or assets being acquired are all, or substantially all, of the assets of a business; and
    • in the case where the assets being acquired are not all, or substantially all, of the assets of a business, whether the acquisition is put into effect between 1 January to 31 March 2026 or on or after 1 April 2026.
  • Changes to the ‘control’ thresholds which provide that certain types of acquisitions put into effect on or after 1 April 2026 which do not result in control will still be notifiable if they otherwise satisfy the notification thresholds;
  • Changes relevant to the definition of ‘connected entities’ for Australian revenue calculations when assessing notification thresholds and the types of acquisitions which must be included in the three-year lookback notification thresholds; and
  • New and expanded exemptions for certain financial markets transactions.

Recap – what is the Mandatory Notification Regime?

Australia is moving from a voluntary merger clearance regime to a new mandatory and suspensory merger notification regime (Mandatory Notification Regime) under the Competition and Consumer Act 2010 (CCA). We’ve described the main features of this regime in earlier publications, which you can see here.

Key points include:

• Any acquisition of shares or assets, including interests in land, which will be ‘put into effect’ after 1 January 2026 must be notified to the ACCC if it meets certain notification thresholds and is not covered by a relevant exemption; and
• A notifiable acquisition must not be ‘put into effect’ until ACCC clearance or a notification waiver is obtained. If ACCC clearance or waiver is not obtained for a notifiable acquisition, the acquisition is void. Potential penalties of up to the greater of $50 million, three times the benefit of the contravention or 30% of the acquirer’s Australian group turnover also apply.

What’s the latest?

On 18 December 2025, a number of key amendments were made to the notification thresholds and exceptions that apply to the Mandatory Notification Regime, through the registration of the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 (Amendment Determination). We have summarised these below.

New monetary thresholds for asset acquisitions

A widely raised concern regarding the Mandatory Notification Regime has been how the monetary revenue attribution thresholds apply to acquisitions of interests in land, including agreements for lease (AFLs) and leases. In an effort to address this, the Amendment Determination introduces new monetary thresholds for asset acquisitions (including land), which vary depending on whether:

• the acquisition is of:
  • all, or substantially all, of the assets of a business (Business Acquisition); or
  • discrete assets which do not make up all, or substantially all, of a business (Discrete Asset Acquisition); and
• in the case of a Discrete Asset Acquisition, the acquisition is put into effect between 1 January to 31 March 2026 or on or after 1 April 2026.

Business Acquisitions

Where the acquisition of assets is a Business Acquisition that is put into effect on or after 1 January 2026, the monetary thresholds will be consistent with the monetary thresholds that apply for share acquisitions:

Discrete Asset Acquisitions

For Discrete Asset Acquisitions, the monetary thresholds that apply will depend upon whether the relevant acquisition is put into effect between 1 January and 31 March 2026, or on or after 1 April 2026, as follows:

Applying the new monetary thresholds to AFLs and leases

In many cases, the Discrete Asset Acquisitions thresholds will potentially apply to acquisitions of interests in land, such as an AFL or lease. The Explanatory Statement to the Amendment Determination provides that the Consideration for a leasehold interest will generally be the total of any:

• up-front initial payments (other than taxes and regulatory charges) for the grant of the leasehold interest;
• periodic payments for the benefit and enjoyment of the land (e.g. annual lease payments including amounts as increased in accordance with a formula over the term of the lease); and
• amounts likely to be paid for an extension or renewal of the lease.

The Explanatory Statement also provides that the Consideration for a lease should:

• include any premium;
• account for lease incentives (e.g. rent abatement, discounted rent or fit-out contributions); and
• not include outgoings payable by the lessee.

Where a lease includes a turnover rent component, the Explanatory Statement provides that a reasonable assessment of the Consideration can include either:

• totalling the fixed portion of the periodic payments combined with a reasonable estimate of the turnover rent payable for the lease term; or
• substituting a reasonable estimate of the market rate for the lease term, as if the lease were instead using a fixed rate.

New exemptions for certain types of land acquisitions

The Amendment Determination introduces a number of new exceptions from the notification requirements for certain types of land acquisitions. These include:

• an exemption for acquisitions of interests in land in the ‘ordinary course of business’;¹ and
• a ‘grandfathering’ exemption for acquisitions of interests in land and quasi-land rights put into effect or after 1 January 2026 where the acquirer previously acquired an equitable interest in the land prior to 1 January 2026. For example, if an acquirer obtained an equitable interest under an AFL on or before 31 December 2025, the subsequent entry into the lease contemplated by that AFL will not be notifiable provided that the size of the land remains materially the same and the proportion of ownership interests in the land is the same.

The Amendment Determination also expands the existing exemption for subsequent acquisitions of interests in land put into effect on or after 1 January 2026 where a previous acquisition of a legal or equitable interest in the same land by the same acquirer was notified to, and cleared by, the ACCC by extending the exemption to include:

• subsequent acquisition of quasi-land rights (i.e. mining, quarrying or prospecting rights, water entitlements and rights in relation to land for forestry operations); and
• circumstances where the ACCC grants a notification waiver for the previous acquisition of land or quasi-land rights.

Additionally, the existing exemption for acquisitions of an entity where the entity’s only non-cash asset is an interest in land for development or management purposes (i.e. land entities) has been extended to land entities which also have an interest in a special purpose vehicle for the purpose of financing a project relating to land owned by the entity.

Certain share acquisitions may be notifiable despite not resulting in ‘control’ from 1 April 2026

Currently, in the case of share acquisitions the Mandatory Notification Regime only applies to acquisitions which result in ‘control’, unless the acquisition is subject to a class determination (i.e. the existing class determination for major supermarkets). However, the Amendment Determination provides that certain types of share acquisitions which do not result in control and will be put into effect on or after 1 April 2026 will still be notifiable if they otherwise satisfy the monetary notification thresholds. These types of acquisitions are as follows:

‘Voting power’ is defined by reference to the meaning of this term in the Corporations Act 2001 (Cth) and includes the voting power of the relevant acquirer together with their associates, however the votes of entities who are associates only because of an agreement providing for ‘minority shareholder protection rights’ (see also further below) are disregarded for this calculation.

Changes relevant to the definition of ‘connected entities’ for Australian revenue calculations

The Amendment Determination provides that non-Chapter 6 entities which would only be considered associates of each other because they have entered into, or propose to enter into, an agreement that provides for minority shareholder protection rights, will not be ‘connected entities’ and therefore will not need to be included in the calculation of that entity’s Australian revenue for the monetary notification thresholds.

Minority shareholder protection rights means a bundle of rights that:

• are consistent with the rights that are normally accorded to minority shareholders in order to protect their financial interests as investors;
• are reasonably appropriate and adapted to achieving the purpose of protecting a minority shareholder’s financial interests, in their capacity as an investor, and not for some other purpose; and
• do not include any of the following:
  • the capacity to control or practically influence (whether alone or in concert with others) the composition of a company’s board;
  • the capacity to control, practically influence or prevent (whether alone or in concert with others) the appointment or termination of senior managers of a company; and
  • the capacity to control or practically influence (whether alone or in concert with others) decisions about a company’s financial and operating policies.

New carve outs to the three-year lookback thresholds

When calculating whether or not an acquisition meets the monetary notification thresholds, it is necessary to consider not only the Australian revenue of the acquirer group (including its connected entities) and the target, but also the revenue attributable to each other acquisition put into effect by the acquirer group in the same industry over the previous three years. However, the following types of acquisitions do not need to be included in the three-year lookback calculation:

• acquisitions previously notified to the ACCC; and
• acquisitions where the Australian revenue was below $2 million.

The Amendment Determination introduces the following two further exceptions to the three-year lookback thresholds:

• acquisitions of shares in a target where, at the time of the three-year lookback calculation, the acquirer nor any of its connected entities control the target; and
• acquisitions of assets where, at the time of the three-year lookback calculation, the acquirer nor any of its connected entities continue to hold an interest in those assets.

New and expanded exemptions for certain financial market transactions

The Amendment Determination introduces a range of changes relating to how the notification requirements apply to various financial market transactions. These include new and/or expanded exemptions relating to acquisitions:

• made by a person acting in an external administration or analogous statutory capacity;
• that occur under contractual rights to close out, set off or combine accounts;
• of derivatives;
• of foreign exchange contracts;
• that arise in the context of debt funding, credit provision, liquidity management, collateralisation, balance sheet management and structured finance activities;
• by nominees and other trustees that occur as a result of the conversion of a capital instrument in connection with prudential-loss absorption mechanisms under APRA’s prudential standards; and
• arising from:
  • transfers of members’ benefits between superannuation entities; or
  • a change of the trustee of a superannuation entity.

What we’re still waiting on

Currently, if a notifiable acquisition is put into effect on or after 1 January 2026 without first being notified to and cleared by the ACCC or granted a notification waiver, it is automatically void. In its 15 October 2025 announcement, Treasury indicated that it intended to make practical adjustments to the automatic voiding provisions that still preserve the incentives for parties to notify proposed acquisitions, however such changes are yet to be made.

How can we help?

HWLE Lawyers has a specialist competition and consumer law team with considerable experience in advising on ACCC merger clearance processes, including under the Mandatory Notification Regime. If you would like more information about the services we provide, please contact us.

This article was written by David Fleming, Partner.

¹See our previous article where we discussed the potential limitations of an ‘ordinary course of business’ exemption for land acquisitions here: https://hwlebsworth.com.au/the-new-accc-merger-regime-and-leases-do-the-governments-proposed-changes-fix-the-challenges/.