On 10 October 2024, the Government introduced the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 (the Bill). Assuming the Bill is passed, the introduction of a single mandatory, suspensory merger control system is a major development in Australian competition law and will have a material impact on business.
The introduction of the Bill follows extensive consultation by Treasury, including consultation on the Exposure Draft. While the principal thrust of the Bill reflects the Exposure Draft, there have been a number of changes. This reflects an overall willingness by Treasury to consider concerns raised by a wide variety of interested parties. From an ease of operation perspective, the Bill has benefitted from this process.
If passed, the Bill will introduce a fundamental change to how mergers are considered under Australian competition law. There will, inevitably, be a period of adjustment. The full framework of the regime is still, to some degree, uncertain, as the Bill contemplates the use of further legislative instruments or powers designated to the Minister or other entities to give effect to the regime.
In parallel with the introduction of the Bill, the ACCC released its “Statement of Goals for Merger Reform Implementation”.
Those goals include the publication of consultation drafts of the Process Guidelines and Analytical Guidelines which are intended to guide businesses and their advisers on engagement with the ACCC in the new regime. The ACCC will also consult on the notification forms which will describe the information and data required by the ACCC to conduct its merger assessment. Consultation on these guides and forms is expected to take place in Q1 2025.
The below summarises key elements of the new regime and notes certain circumstances where the Bill differs from the Exposure Draft.
For further information, please contact:
Linda Evans, Herbert Smith Freehills
linda.evans@hsf.com
