Australia’s Merger Revolution

Julie Clarke

Australian Journal of Competition and Consumer Law

Julie Clarke, ‘Australia’s Merger Revolution’ (2024) 32 Australian Journal of Competition and Consumer Law 298-316

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Abstract

After years of lobbying from the Australian Competition and Consumer Commission (‘the ACCC’) the Australian Government has introduced the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 (‘Bill’) that, if passed, will revolutionise the way in which mergers are reviewed in Australia. Most notably, it will transform Australia’s merger regime from a judicial enforcement system, supported by an informal, voluntary, non-suspensory notification process, to an administrative system supported by a formal mandatory and suspensory notification process.  The ACCC will become the initial decision maker for notified mergers, with the possibility of limited merits review to the Australian Competition Tribunal (‘the Tribunal’).

This reflects the ‘mindset change’ in relation to merger review that former ACCC Chair, Rod Sims, claimed was needed when he started a debate on Australia’s merger regime in 2021. The Bill is expected to pass and will strengthen the ability of Australia’s merger regime to capture anti-competitive mergers, including helping to address the increasing challenges presented by the digital age.

The following note details the current approach to mergers, the challenges that have prompted the new policy, the proposals and consultation that have preceded the introduction of the Bill and the key features of the legislation itself. It concludes with some thoughts on the key reforms.