On 28 November 2024, Parliament passed the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (the Act). 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 Act was developed following extensive consultation by Treasury, including consultation on the Exposure Draft. While the principal thrust of the Act 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 Act has benefitted from this process.
The Act introduces 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 Act contemplates the use of further legislative instruments or powers designated to the Minister or other entities to give effect to the regime.
The ACCC will release Process Guidelines and Analytical Guidelines which are intended to guide businesses and their advisers on engagement with the ACCC in the new regime, as well as notification forms which will describe the information and data required by the ACCC to conduct its merger assessment.
Next steps: Consultation on exposure drafts of the legislative instruments prepared by Treasury, as well as guidelines and forms prepared by the ACCC, is expected to take place in Q1 2025.
The below summarises key elements of the new regime and notes certain circumstances where the Act differs from the Exposure Draft.
For further information, please contact:
Patrick Gay, Partner, Herbert Smith Freehills
Patrick.Gay@hsf.com