EXPLANATORY STATEMENT

Issued by authority of the Assistant Minister for Productivity, Competition, Charities and Treasury and Parliamentary Secretary to the Treasurer

Competition and Consumer Act 2010

Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025

The Competition and Consumer (Notification of Acquisitions) Determination 2025 (Principal Determination) is a legislative instrument made under the Competition and Consumer Act 2010 (CCA). The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (the Mergers Act) introduced a new merger control regime in the CCA. This new regime requires certain acquisitions of shares or assets to be notified to the Australian Competition and Consumer Commission (the Commission) for assessment prior to completion.

Section 51ABP of the CCA provides that the Minister may determine the circumstances in which acquisitions are required to be notified to the Commission.

Section 51ABQ of the CCA provides that the Minister may determine a class of acquisitions which are required to be notified to the Commission and as part of this power, an implied ability to exclude certain acquisitions from that class.

Section 51ABRA of the CCA (as inserted by Schedule 5 to the Treasury Laws Amendment (Strengthening Financial Systems and Other Measures) Act 2025) provides that the Minister may also determine the circumstances in which acquisitions are not required to be notified to the Commission.

Subsection 51ABS(6) of the CCA provides that the Minister may determine a class of acquisitions of shares in the capital of a body corporate which are required to be notified to the Commission.

Subsection 51ABZZI(6) of the CCA provides that the Minister may determine the details of a notification and any other information or documents that must be included on the acquisitions register, and the associated timeframes.

Subsection 100C(2) of the CCA provides that the Minister may determine requirements in relation to applications to the Australian Competition Tribunal (the Tribunal) for the review of determinations.

Subsection 112(2) of the CCA provides that the Minister may determine fees the Tribunal may charge.

Subsection 51ABU(3) of the CCA provides that the Minister may determine requirements for making a notification waiver application.

Subsection 51ABV(3) of the CCA provides that the Minister may determine requirements the Commission must comply with in making a notification waiver determination.

In addition, subsection 33(3) of the Acts Interpretation Act 1901 provides a general authority under which the Minister may repeal, rescind, revoke, amend, or vary the legislative instrument referred to in the subsections 51ABY(5) and 51ABZQ(5) of the CCA.

The Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 (Amendment Determination) amends the Principal Determination. The purpose of the Amendment Determination is to support the new regime by:

•       improving the operation of elements of the notification requirements, such as how the notification thresholds apply to acquisitions of assets and circumstances where acquisitions are notifiable despite not resulting in control;

•       providing for the process, content, and format of notification waiver applications;

•       setting fees for applications for Tribunal review of decisions of the Commission.

Schedule 1 to the Amendment Determination provides the amendments relating to acquisitions requiring notification.

Schedule 2 to the Amendment Determination provides the amendments relating to notification waiver applications.

Schedule 3 to the Amendment Determination provides the amendments relating to Tribunal review.

The CCA does not specify any conditions that need to be satisfied before the power to make the Amendment Determination may be exercised.

An exposure draft of Division 5 of Part 6 in Schedule 2 (the application for notification waiver form) to the Amendment Determination was released for public consultation between 3 September 2025 and 16 September 2025.

An exposure draft of Division 2 of Part 6 in Schedule 1 (certain classes of acquisition that do not result in control still required to be notified) and certain provisions in Schedule 2 (certain requirements for making a notification waiver application and requirements the Commission must comply with in making a determination in respect of a notification waiver application) to the Amendment Determination was released for public consultation between 21 October 2025 and 3 November 2025.

Treasury also undertook targeted consultation on an exposure draft of the other provisions of the Amendment Determination with the Commission, business stakeholders and legal practitioners.

Submissions received in the public and targeted consultations outlined above supported the refinements contained in this Amendment Determination.

Schedule 3 to the Amendment Determination was subject to targeted consultation with the Tribunal.

The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Determination is subject to disallowance under section 42 of the Legislation Act 2003.

The Amendment Determination is subject to sunsetting under section 50 of the Legislation Act 2003.

Details of the Amendment Determination, including commencement, are set out in Attachment A.

A Statement of Compatibility with Human Rights is at Attachment B.

The Office of Impact Analysis (OIA) has been consulted (OIA23-06015) and agreed that an Impact Analysis is not required.

ATTACHMENT A

Details of the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025

Section 1 – Name

This section provides that the name of the instrument is the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 (Amendment Determination).

Section 2 – Commencement

Schedules 1, 2 and 3 to the Amendment Determination commence on the day after the Amendment Determination is registered on the Federal Register of Legislation or 1 January 2026, whichever is later. Schedule 4 commences at the same time as Parts 1 and 2 of Schedule 1 to the Environment Protection Reform Act 2025 (disregarding items 116A and 571 of Schedule 1 to that Act).

Section 3 – Authority

The Amendment Determination is made under the Competition and Consumer Act 2010 (CCA).

Section 4 – Schedules

This section provides that each instrument that is specified in the Schedules to this instrument are amended or repealed as set out in the applicable items in the Schedules, and any other item in the Schedules to this instrument has effect according to its terms.

All references are to the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Principal Determination) unless otherwise stated.

Schedule 1

Items 1 to 6

These items amend section 1-4 of the Principal Determination to insert definitions for the new concepts ‘approved stock exchange’, ‘arm’s length’, ‘body regulated by APRA’, ‘foreign exchange contract’, ‘loan’, ‘minority shareholder protection rights’, ‘prudential standards’, ‘quasi-land right’ and ‘superannuation entity’. These items also repeal and replace the definitions of ‘derivative’ and ‘security interest’.

Item 5 also inserts definitions for ‘tier-1 transaction value test’, ‘tier-2 transaction value test’ and ‘tier-3 transaction value test’. All definitions sign-post to the relevant subsection in section 1-12, which is titled ‘transaction value tests’. As a consequence of these new tests, item 6 repeals the definition for transaction value test.

Connected entity

Items 3 and 7

As mentioned, Item 3 of the Amendment Determination inserts the concept of ‘minority shareholder protection rights’ into the Principal Determination. The concept means a bundle of rights that meet all of the following:

•       the rights are consistent with the rights that are normally accorded to minority shareholders in order to protect their financial interests as investors;

•       the rights 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;

•       the rights conferred on a minority shareholder 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;

–      the capacity to control or practically influence (whether alone or in concert with others) decisions about a company’s financial and operating policies.

Paragraph (a) of the concept addresses the type of rights covered by ‘minority shareholder protection rights’. An example below the provision identifies that these are rights normally accorded to minority shareholders that include those which relate to protections from changes to a company’s constitution or capital, or the liquidation, sale or winding up of the company. The example also identifies that access to information, board representation or observer rights are also rights that may normally be accorded to minority shareholders.

Paragraph (b) of the concept addresses whether the rights are reasonably appropriate and adapted to protect a minority shareholder’s financial interests as an investor. ‘Reasonably appropriate and adapted’ has been considered by the High Court of Australia in Leask v Commonwealth of Australia (1996) 187 CLR 579 and found to be another expression for proportionality. Therefore, the rights should be proportionate to protect the minority shareholder’s financial interests as an investor.

‘Minority shareholder’ is not defined and should take its ordinary meaning – that being, a shareholder who does not have control over the entity.

‘Investor’ is also not defined and should take its ordinary meaning.

The reference to protecting financial interests as investors in paragraphs (a) and (b) of the definition of ‘minority shareholder protection rights’ is intended to make clear that the rights to be captured by the concept are those relating to the person’s interests as an investor with a minority shareholding and do not extend to cover any ability for a person to exercise control in relation to the entity.

Paragraph (c) of the concept addresses the type of rights that are not covered by ‘minority shareholder protection rights’. The references to ‘capacity to control or practically influence’ in subparagraphs (c)(i), (ii) and (iii) reflect the language used for the meaning of ‘control’ in the section 50AA of the Corporations Act 2001 (Corporations Act) and addresses the substance of the rights. As such, the intention is to exclude a bundle of rights where any of the rights allow the person to do any of the things set out in subparagraphs (c)(i), (ii) and (iii).

The concept of ‘minority shareholder protection rights’ affects the meaning of ‘connected entity’ in section 1-5 of the Principal Determination. This is inserted by item 7 of the Amendment Determination.

Item 7 adds a new subsection (4) to section 1-5. The subsection is titled ‘Entities with minority shareholder protection rights not to be considered associates just because they hold those rights’. The subsection provides that, for the purposes of paragraphs 1-5(2)(a) and (b), an entity (the first entity) is not taken to be an associate in relation to another entity (the second entity) if:

•       the second entity is not a Chapter 6 entity;

•       the first entity and the second entity have, or propose to enter into, a relevant agreement (within the meaning of the Corporations Act); and

•       the only reason the first entity would be taken to be an associate of the second entity is because the relevant agreement has provided, or will provide, the first entity with rights that are minority shareholder protection rights.

As subsection 1-5(4) does not apply to Chapter 6 entities, this carve-out will only apply to unlisted bodies corporate that are not widely held. This is typically private companies with 50 shareholders or less.

The intended effect of subsection 1-5(4) is that a person (first person) will not be an associate of another person (second person) in a private company because there is an agreement that provides the first person and second person with minority shareholder protection rights. To the extent the first person and second person have additional rights that enable them to exercise control over the private company, this carve-out to the meaning of ‘connected entity’ will not apply.

Serial Acquisitions

Item 17

Section 1-11 sets out the accumulated acquired shares or assets revenue tests, which are used to determine if a particular acquisition meets the creeping or serial acquisitions notification threshold in section 2-3. Within the tests in section 1-11, a ‘previous acquisition’ of shares or assets is not aggregated for the purposes of the tier-1 or tier-2 accumulated acquired shares or assets revenue test (whichever is relevant) if it meets any of the criteria in subsection 1-11(3).

This item adds two additional types of acquisitions that are to be disregarded for the purposes of the accumulated acquired shares or assets revenue tests.

The first type of acquisition to be disregarded is where the previous acquisition was in the shares of a body corporate and, at the test time, neither the principal party nor its connected entities have, or can begin to have, control of the body corporate. Control is defined as control for the purposes of section 50AA of the Corporations Act with the modifications set out in subsection 51ABS(2) of the CCA. This is intended to exclude previous acquisitions of non-controlling interests in a body corporate, and previous acquisitions of controlling interest where the party no longer has control (for example, where the shares have since been divested), from accumulation under the test in section 1‑11.

The second type of acquisition to be disregarded is where the previous acquisition was of assets (other than shares) and, at the test time, neither the principal party nor its connected entities continue to hold an interest in those assets. This would exclude previously acquired assets that have since been divested from accumulation under the test in section 1-11.

The effect of these insertions is that the Principal Determination carves out, from the accumulated acquired shares or assets revenue tests, certain share acquisitions using ‘control’ and certain asset acquisitions using a new disposal/divestiture limb. Therefore, such acquisitions cannot contribute towards triggering the notification requirements pursuant to section 2-3 of the Principal Determination, which are targeted at creeping or serial acquisitions.

These changes are intended to better target acquisitions as part of accumulation under the creeping or serial acquisitions threshold by excluding previous acquisitions where the entity that made those acquisitions is unlikely to have, or no longer has, the ability to use those assets or shares (whichever relevant) in a way that may affect competitive dynamics in a market. It also reflects the fact that it may be difficult in practice for businesses to maintain records for divested or disposed shares or assets.

Asset Attribution test

Items 8-16 and 19-20

Sections 1-9, 1-10 and 1-14 provide for various revenue tests for the notification thresholds in Division 1 of Part 2 of the Principal Determination.

Items 8, 10, 11 and 19 repeal paragraphs 1-9(1)(e), 1‑10(1)(c), 1-10(2)(c) and 1-14(1)(c), which provide for attributing revenue of the target to the acquisition of an asset. These paragraphs are substituted with a reformulated approach that only applies where the acquisition is of all, or substantially all, of the assets of a business. Under this approach, when the acquisition is of all, or substantially all, of the assets of a business, the amount to be calculated for the purposes of determining whether the relevant monetary threshold has been met is the Australian revenue of the target of the acquisition to the extent that it is attributable to the business. This approach has been taken because, generally, the Australian revenue of the body corporate will be lower than the Australian revenue attributable to all or substantially all assets of the business.

The concept of ‘all, or substantially all, of the assets of a business’ is not defined in the Amendment Determination. Whether an asset acquisition constitutes the acquisition of all, or substantially all, of the assets of a business is a question of fact. While each acquisition of assets should be considered in the context of its particular facts and circumstances, the intent is that where the asset acquisition would enable the acquirer to effectively continue operating a business that is similar to the business currently operated using the acquired assets, this would typically constitute an acquisition of all, or substantially all, of the assets of a business.

In a case where the acquisition is of the assets of a subsidiary business in a corporate group, or a subsidiary line of business within an entity that carries on multiple businesses, the intent is that the revenue test would apply if the acquisition was of all, or substantially all, of the assets of that subsidiary business – and not that the assets acquired needed to be all, or substantially all, of the assets of the corporate group or broader entity. For example, for an acquisition of a business unit that manufactures and supplies bread products that is part of a broader food product company, it would be expected that only the Australian revenue attributable to the bread product business would be taken into account.

A consequence of the reformulated approach is that asset acquisitions where a person is acquiring a discrete asset (or assets) that does not effectively result in the acquisition of a business are distinguished from an asset acquisition where the acquisition of an asset (or assets) does effectively result in the acquisition of a business.

To reflect that the Principal Determination distinguishes between asset acquisitions that represent all, or substantially all, of the assets of a business and asset acquisitions that are acquisitions of discrete assets that do not represent all, or substantially all, of the assets of a business, item 19 also amends the small acquisition test at section 1-14 to add paragraph 1‑14(1)(d), which provides that a discrete acquisition is a small acquisition if the market value of the discrete acquisition is less than $2 million.

The small acquisition test is relevant to the operation of the accumulated acquired shares or assets revenue test (section 1-11) as previous acquisitions that satisfied the small acquisition test are disregarded from accumulation (paragraph 1-11(3)(b)). It is also relevant to determining whether notification is required under section 2-3 as an acquisition that satisfies the small acquisition test is not notifiable (paragraph 2-3(e)).

Items 9, 12 and 20 make consequential amendments to repeal subsections 1-9(3), 1-10(4) and 1‑14(3). These provisions set out an alternative test for asset acquisitions where it was not reasonably practicable to attribute the Australian revenue of a target to an acquisition of an asset. This alternative test is no longer required.

Items 18, 22 and 34

To support the amendments to the treatment of asset acquisitions, item 18 repeals section 1‑12, which is the transaction value test, and substitutes a new section for transaction value tests. The new transaction value tests provision sets out three different transaction value tests that apply to specific circumstances. All three transaction value tests consider the greater of:

•       the sum of the market values of all the shares and assets being acquired (the market value);

•       the consideration received or receivable for all of the shares and assets being acquired (the consideration).

The tier-1 transaction value test is the same as the previous transaction value test. The tier‑1 transaction value test is satisfied at a time where the greater of either the market value or consideration is $250 million or more.

Further, satisfying the tier-1 transaction value test is one of the limbs that can trigger the obligation to notify an acquisition pursuant to section 2-1 of the Principal Determination, which is targeted at acquisitions resulting in large or larger corporate groups. As there are now three transaction value tests based on different monetary amounts, which apply in different contexts, item 21 omits ‘transaction value test’ and substitutes ‘tier-1 transaction value test’.

The tier-2 transaction value test is satisfied at a time where the greater of either the market value or the consideration is $200 million or more.

The tier-3 transaction value test is satisfied at a time where the greater of either the market value or the consideration is $50 million or more.

Satisfying either the tier-2 or tier-3 transaction value tests is a requirement for triggering notification under the new section 2-4, inserted by item 34.

As with the previous transaction value test, only one of either the market value or consideration tests need to be met to satisfy any of the three new transaction value tests.

Section 2-4 applies only to asset acquisitions other than acquisitions of all or substantially all of the assets of a business – that is, the acquisition of a discrete asset (or assets). There are two circumstances in which a person is required to notify an asset acquisition under section 2-4. Both circumstances, set out in subsections 2-4(1) and 2-4(2), require the acquisition to be of assets (other than shares); to not have the effect that the person will, or can, acquire all, or substantially all, of the assets of a business; and the assets need to be connected with Australia. Notification under subsection 2-4(1) also requires that the acquisition satisfies the combined acquirer/target revenue test on the contract date, and the tier-2 transaction value test on the contract date. Notification under subsection 2-4(2) requires the acquisition to satisfy the very large corporate group revenue test on the contract date, and the tier-3 transaction value test on the contract date.

A consequence of these changes is that acquisitions of a discrete asset or assets that do not form all, or substantially all, of a business do not need to be considered under the circumstances set out in section 2-1 once section 2-4 commences. Such acquisitions cannot trigger the requirement to notify under the circumstances set out in section 2-1, where they meet the tier-1 transaction value test (section 2-1(d)(ii)), without also being required to notify under subsection 2-4(1).

‘Consideration’ takes its ordinary meaning (that is, the amount paid for the target) and includes cash and non-cash consideration. Where the value of consideration is not clear, a reasonable assessment of the value of the consideration is to be made. What is a reasonable assessment of the consideration will depend on the facts and circumstances. An example of such an assessment is that consideration for a leasehold interest in Australian land 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 (for example, 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 (if prescribed under the lease agreement).

The calculation of a lease payment should include any premium. The calculation should also account for lease incentives (for example: rent abatement, discounted rent, or fit-out contributions). The calculation should not include outgoings payable by the lessee, such as water rates.

In the event periodic lease payments are not fixed and instead are partially or wholly calculated as a percentage of turnover (turnover rent), a reasonable assessment of the value 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;

•       substituting a reasonable estimate of the market rate for the lease term, as if the lease were instead using a fixed rate.

Items 22-25, 27-29 and 31-33 make minor amendments to sections 2-1, 2-2 and 2-3 to support readability of the provisions.

Exemptions

Head of power

Item 35

This item adds section 2-19. Section 2-19 specifies that acquisitions covered by Division 2 of the Principal Determination are exempt from notification unless the acquisition falls within a class determined under Division 1 of Part 3. It also specifically references section 51ABRA of the CCA, the head of power that Division 2 of the Principal Determination is made under. Section 51ABRA was not part of the Mergers Act, but an amendment made by Part 5 of the Treasury Laws Amendment (Strengthening Financial Systems and Other Measures) Act 2025. New subsections 51ABRA(1) and 51ABRB(1) complement and clarify the Minister’s existing statutory power to determine acquisitions that occur in certain circumstances, or classes of acquisition, that are required to be notified under subsections 51ABP(1) and 51ABQ(1) respectively.

Items 21, 23-33, 51 and 52

These items are amendments consequential to Item 35. Item 35 means paragraphs 2‑1(e), 2-2(e) and 2‑3(f) are no longer needed. These items improve the clarity of the notification thresholds by turning those paragraphs into a note. A note is a more appropriate format, given these lines are now informative only.

Ordinary Course of Business exemption

Items 37 and 38

While acquisitions of assets that occur in the ‘ordinary course of business’ are generally not considered ‘acquisitions’ for the purposes of the CCA and are therefore excluded from the merger control regime, this exception does not apply to land or interests in land (paragraphs 4(4)(b) and 51ABN(2)(a) of the CCA). Therefore, acquisitions of land or interests in land may be required to be notified if they trigger the notification thresholds or are subject to a class determination, and are not otherwise exempt.

To address this, Item 37 provides a new exemption for acquisitions of land or interests in land that occur in the ordinary course of business, subject to any targeted notification requirements for specified classes of acquisitions (for example, the existing supermarkets class).

The phrase ‘in the ordinary course of business’ has been used as an exemption to anti-competitive acquisitions in the CCA since it was first legislated as the Trade Practices Act 1974 (initially as subsection 50(2), and then as subsection 4(4)). The phrase has also been used as a protection for creditors in Australia’s bankruptcy laws for more than 100 years (see section 95 of the Bankruptcy Act 1924).

Previous case law, focused on the Bankruptcy Act, has considered that ‘the ordinary course of business’ means ‘that the transaction must fall into place as part of the undistinguished common flow of business done, that it should form part of the ordinary course of business as carried on, calling for no remark and arising out of no special or particular situation’ (Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liq) (1948) 76 CLR 463 at 477 (Downs Distributing Company’s case)) and ‘is meant to refer to transactions regularly taking place in a sustained course of activity or some other usual process naturally passing without examination’ (Taylor v White [1964] ALR 595 at 598 (Taylor’s case)).

In the Downs Distributing Company’s case, Rich J of the High Court further noted that the ordinary course of business is not a reference to ‘the course of any particular trade, vocation or business. It speaks of the course of business ‘in general’. This case was cited by the High Court in Taylor’s case, which in turn was cited by Burchett J in the Federal Court case, TPC v Gillette Company (No 2) (1993) 118 ALR 280. Justice Burchett gave the view that the ordinary course of business does not refer to the acquirer's, or anyone else's, particular business, as it was unlikely the legislative intention was for an ‘amateur acquirer’ to be attacked while ‘letting the professional and systematic acquisition of competing businesses strictly alone’. Drawing on similar concepts in the United States antitrust law, Burchett J noted, as an example of an acquisition in the ordinary course of business, the sale of a typewriter by IBM to General Motors.

The use of the phrase ‘in the ordinary course of business’ in new subsection 2-20(1A) is a deliberate decision, recognising the history of the phrase in legislation and case law. The government’s intent is that the exemption for land acquisitions in the ordinary course of business applies in a way that is consistent with previous case law, to the extent applicable in the merger context.

While each acquisition must be considered on its facts, examples (not limited to land) of acquisitions that are likely to be in the ordinary course of business include retail businesses purchasing inventory to sell, professional services businesses purchasing consumables (for example, stationary or software) to use in the day-to-day operation of the business itself, and manufacturing businesses acquiring inputs and equipment (including any necessary repair services) to manufacture products. In other words, what is considered to be the ordinary course of business is likely to depend on the industry and broader economic context in which the business is operating.

The exemption for land acquisitions in the ordinary course of business is intended to apply to routine acquisitions of a legal or equitable interest in land, whether freehold or leasehold. Examples of acquisitions that can amount to acquisitions in the ordinary course of business include, but are not limited to, the acquisition of an interest in land for the purpose of an office, headquarters or other routine trading activities, the acquisition of office towers for the purposes of commercial property investment, or a property development company acquiring land to develop residential or commercial property.

As noted previously, the ordinary course of business does not refer to the acquirer’s, or anyone else’s, particular business. It is not a requirement that the specific person making an acquisition has made similar acquisitions recently or in the past for the acquisition to be in the ordinary course of business. It may be that while an individual business does not routinely make similar acquisitions, other businesses in similar industry settings make similar acquisitions at a similar frequency.

For example, a business acquiring land to establish a new office, or entering a new lease for its office space, may not have done so in the past 10 years but these acquisitions may still be considered to be in the ordinary course of business where they are part of the ordinary flow of business in that industry. Other examples of acquisitions of interests in land that can be in the ordinary course of business, even though large or infrequent, include retailers leasing or acquiring land for a warehouse to store their inventory, a manufacturer leasing or acquiring land for a new manufacturing facility, an energy generator acquiring land for a solar farm, or an energy distributor acquiring land to build pylons on.

The exemption is intended to apply regardless of the legal or broader structure of the transaction, such as whether the acquisition involves a direct acquisition of land or involves the acquisition of shares or units in a land entity.

Examples that are not intended to be exempt include acquisitions of land for the purposes of land-banking, land that a competitor is currently operating their business on (such as a supermarket buying the property in which a direct competitor is currently leasing), and the transfer of production or supply capacity from one competitor to another (such as a manufacturing business acquiring the lease of one of their direct competitors’ manufacturing facilities).

To account for the possibility that there may otherwise be overlap between the sorts of land acquisitions exempted under subsection 2-20(1A) and the existing exemptions for specific land acquisitions in subsection 2-20(1), item 38 amends subsection 2‑20(1) to clarify that the existing exemptions for developing residential premises and property development only cover what is not already covered by the ordinary course of business exemption.

Progressive land acquisition exemption when notification waiver given

Item 41

Existing subsection 2-20(4) of the Principal Determination exempts acquisitions of legal or equitable interests in land where the same acquirer has previously notified the Commission of an acquisition of an equitable interest in the same land. The purpose of the exemption is to avoid multiple notifications for what is, in substance, a single land acquisition that takes place in multiple stages.

However, this exemption did not cover circumstances where the Commission granted a notification waiver for a previous acquisition of an interest in the land under section 51ABV of the CCA – that is, where the Commission has determined notification is not required.

This item expands subsection 2-20(4) to cover circumstances where the acquisition of the previous interest was either a notified acquisition or was granted a notification waiver by the Commission. This is appropriate because where the Commission has considered the initial stage of the transaction and decided it does not need to notify, then future stages of the transaction should also not need to be notified.

Progressive acquisition exemption for quasi-land rights

Items 3, 36 and 42

These items add an exemption for a different type of progressive transactions. While subsection 2-20(4) exempts progressive transactions of land, new subsection 2-20(7) exempts progressive transactions of quasi-land rights.

Quasi-land rights are defined in item 3 as any of the following:

•       A mining, quarrying or prospecting right (as defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997));

•       A water entitlement (as defined in section 124-1105 of the ITAA 1997);

•       A right in relation to land for forestry operations (as defined in subsection 40(2) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) – however refer to Schedule 4 of this Explanatory Statement).

A ‘mining, quarrying or prospecting right’ is defined at section 995-1 of the ITAA 1997 to include petroleum, which is itself defined at section 40-730 of the ITAA 1997 to mean any naturally occurring hydrocarbons such as oil and natural gas.

A commonality of each these interests is that they are all interests which need to be perfected by registration under a statutory scheme under State, Territory or Federal legislation.

In the context of quasi-land rights, a progressive transaction is where an initial acquisition of an equitable interest in a right is followed by a subsequent acquisition of a legal or equitable interest in the same right by the same acquirer. This generally will occur in multiple stages across several years. Without an exemption this could lead to a double notification for what in effect is the same transaction. This would then introduce regulatory risk into developments that render them difficult to finance.

The exemption is contingent upon:

•       the acquisition of a previous interest being notified or having been granted a notification waiver;

•       the previous interest having been acquired by the same acquirer;

•       the entitlements between the previous and subsequent interests being materially the same; and

•       the proportion of ownership interests between the previous and subsequent interests being the same.

Minor incidental changes to the quasi-land right between the initial and subsequent acquisition are not intended to prevent a subsequent acquisition from being covered by this exemption. For example, routine title changes or boundary changes.

Progressive land acquisition exemption where initial acquisition occurred before 1 January 2026

Item 58

This item adds section 10-5, which exempts progressive acquisitions of land and quasi-land rights that occur in stages, where the stages occur on both sides of the start date of the new merger control regime, 1 January 2026.

The effect of this provision is that acquisitions of an interest in land or a quasi-land right put into effect from 1 January 2026 are exempt from notification under the new regime if they are subsequent to a previous acquisition of an interest in the same asset by the same acquirer that occurred prior to 1 January 2026. This exemption applies to both the notification thresholds and any class determination.

For an interest in land (new subsection 10-5(1)), the exemption applies where:

•       the acquirer previously acquired an equitable interest in the land prior to 1 January 2026;

•       the same acquirer then acquired a subsequent legal or equitable interest that relates to that same parcel of land (such as obtaining legal title or acquiring an additional equitable interest over it);

•       the size of the land to which the previous interest and the subsequent interest relate, is materially the same; and

•       the proportion of the ownership interest in the land to which the previous interest and the subsequent interest relate, is the same.

For example, if an entity enters into an agreement for lease prior to 1 January 2026 (being the equitable interest in land), the later acquisition of a legal interest upon entering into the lease does not require a separate notification provided the land remains unchanged. Minor incidental changes to the land between the initial and subsequent acquisition are not intended to prevent a subsequent acquisition from being covered by this exemption. For example, routine land title changes, easements, boundary adjustments or the registration of a strata plan tied to the land.

Paragraphs (d) and (e) of subsections 10-5(1) and (3) ensure that this exemption is confined to subsequent acquisitions that are of the same land. For example, where an entity acquires an equitable interest of 20 per cent in a block of land at exchange, and then at settlement acquires legal interest of 50 per cent, the exemption is not applicable. Paragraph (d) of 10-5(1) to (3) deliberately uses the word ‘materially’ to allow for minor adjustments in land size that may be outside the notifier’s control (for example, a minor increase in the size of land in a lease as a result of a store redevelopment in a shopping centre or a boundary adjustment).

New subsection 10-5(1) is not able to extend this exemption to interests in land acquired by a major supermarket, as acquisitions by major supermarkets are covered by Part 3 of the Principal Determination. Therefore, new subsection 10-5(3) has been added to extend the exemption to interests in land acquired by a major supermarket.

A similar exemption applies to quasi-land rights (new subsection 10-5(2)), and applies where:

•       the acquirer previously acquired an equitable interest in the right prior to 1 January 2026;

•       the same acquirer then acquired a subsequent interest in the same right;

•       the entitlements to which the previous and subsequent interests relate are materially the same; and

•       the proportion of the ownership interest in the right to which the previous and subsequent interests relate is the same.

Exemption for land entities – special purpose vehicle extension

Under subsection 2-20(2), an acquisition of an interest in a land entity was exempt if the entity’s only non-cash asset was an interest in land held for development or management purposes.

However, many land-holding structures include a financing special purpose vehicle whose only function is to facilitate project funding (for example, issuing notes or holding receivables). Because the financing vehicle’s assets are non-land assets, they technically disqualified the entity from meeting the ‘only non-cash asset’ test.

As such, paragraph 2-20(2)(a) has been extended to also apply to entities, where the only non-cash assets aside from a legal or equitable interest in land are an interest in a special purpose vehicle if that vehicle is established and maintained for the purpose of financing a project relating to the land owned by the entity.

The reference to ‘a project’ includes multiple projects, in accordance with subsection 23(b) of the Acts Interpretation Act 1901. Financing such a project or projects is intended to include fundraising for that project.

For completeness, the condition that the financing special purpose vehicle’s only asset is land refers to its substantive holdings.

Incidental assets would generally not disqualify the exemption, provided the entity does not hold any other significant or standalone business assets. Generally, incidental assets can include the following:

•       a nominal cash balance and bank accounts;

•       trade and other receivables;

•       tax receivables and prepayments related to the land;

•       intragroup balances arising from project funding;

•       minor plant or equipment used solely to manage the land (such as a caretakers’ or management office);

•       derivatives and related collateral (when used solely for financing and hedging the project).

Further, a special purpose vehicle may be ‘established and maintained’ for a particular purpose even if that vehicle has been used for a different purpose in the past. For this, the vehicle must be repurposed to its new purpose and no longer be used for the old purpose.

Here, ‘purpose’ should be interpreted to mean ‘substantial purpose’ consistent with in section 4F of the CCA. This will enable this exemption to apply where the entity holds an interest in special purpose vehicles established for financing a project and for other purposes such as risk distribution.

This amendment broadens the exemption for the acquisition of land entities in the Principal Determination and is only applicable if the entity has an interest in a special purpose vehicle.

External administration

Item 43 replaces section 2-21 with a new provision that broadens and clarifies the classes of acquisitions that are exempt when made by a person acting in an external administration or analogous statutory capacity. The amendment ensures that acquisitions made in the course of official, statutory, or judicial management are not subject to notification. This reflects the low risk to competition presented by such transactions given the temporary nature of the holding of the assets or shares and removes uncertainty that could otherwise delay crisis-management or resolution processes administered by regulators such as the Australian Prudential Regulation Authority (APRA), the Australian Securities and Investments Commission (ASIC) or the Reserve Bank of Australia (RBA).

New section 2-21 provides that Division 2 covers an acquisition by a person made in the ordinary course of performing one or more of the roles or positions listed in the accompanying table. The new table consolidates and cross-references each relevant statutory role, ensuring consistent treatment across equivalent regimes in banking, insurance, life insurance, superannuation, taxation administration and not-for-profit legislation.

Each item in the table identifies the role and the Act under which its meaning is given. This includes:

•       acting responsible entities under section 100-300 of the Australian Charities and Not-‑for-profits Commission Act 2012 (table item 1);

•       statutory managers under:

–      section 5 of the Banking Act 1959 (table item 2);

–      section 9 of the Corporations Act (table item 4);

–      subsection 62ZOA(8) of the Insurance Act 1973 (table item 5);

–      subsection 179AA(8) of the Life Insurance Act 1995 (table item 8).

•       judicial managers under:

–      subsection 3(1) of the Insurance Act 1973 (table item 6);

–      subsection 163(1) of the Life Insurance Act 1995 (table item 7);

–      external administrators under Part 7.3B of the Corporations Act (table item 3) (see further below).

•       external managers of private health insurance funds under subsection 4(1) of the Private Health Insurance (Prudential Supervision) Act 2015 (table item 9);

•       acting trustees under:

–      subsections 134(1) and (2) of the Superannuation Industry (Supervision) Act 1993 (table item 10);

–      subsections 426-130(1) and (2) in Schedule 1 to the Taxation Administration Act 1953 (table item 11);

•       any role equivalent to the role referred to in the table (table item 12).

Each of these appointment types involves statutory or court-supervised powers to manage, preserve or realise assets of a regulated entity in the interests of creditors, policy-holders, members, beneficiaries or the public. Acquisitions occurring in the ordinary course of such administration are generally competitively benign and are undertaken as a short-term measure to restore or preserve financial stability rather than to expand market power. This exemption does not extend to situations where the appointed person later disposes of assets or shares to a third party: any acquirer in those circumstances must notify if the acquisition meets the notification thresholds and no other exemption applies.

Part 7.3B of the Corporations Act

Item 3 of the table cross-refers to ‘external administrator’ under paragraph (b) of the definition of ‘external administrator’ in section 9 of the Corporations Act. That term means:

•       an external administrator within the meaning of the Insolvency Practice Schedule – that is, an ‘administrator’, ‘restructuring practitioner’, ‘liquidator’, ‘provisional liquidator’ or deed administrator etc. (see sections 5-20 and 5-25 of Schedule 2 to the Corporations Act); and

•       a ‘receiver’, ‘manager’, ‘managing controller’, ‘receiver and manager’ or other ‘controller’ (within the meaning of the Corporations Act).

‘External administrator’ therefore incorporates the definition of ‘controller’ (within the meaning of section 9 of the Corporations Act), which, in relation to property of a corporation, means:

•       a receiver, or receiver and manager, of that property; or

•       anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest.

Accordingly, the exemption covers certain acquisitions made by mortgagees in possession, receivers and managers enforcing security and other enforcement-related controllers, including where such persons hold or deal with assets only temporarily as part of realisation or recovery processes.

Equivalent roles

Item 12 of the table provides that the exemption also applies to a person performing a role that is equivalent, in substance, to any listed role where the appointment arises under a law of the Commonwealth, a State or Territory. This mechanism extends the exemption to similar and analogous statutory or court-ordered capacities, including:

•       a person appointed to administer a creditor’s scheme of arrangement as part of a court-approved restructuring plan under the Corporations Act (that is, a ‘scheme administrator’);

•       a foreign insolvency official recognised in Australia under the Cross-Border Insolvency Act 2008;

•       for foreign authorised deposit-taking institutions, an external administrator (or similar) appointment of the foreign authorised deposit-taking institution (see paragraph 13A(1)(e)(ii) of the Banking Act 1959);

•       for foreign general insurers, an external administrator (or similar) appointment of the foreign general insurer (see paragraphs 62M(1)(a)(iva)-(ivc) of the Insurance Act 1973).

Close out netting exemption

Item 44 repeals and substitutes subsection 2-22(2) to simplify the exemption for acquisitions that occur under contractual rights to close out, set off or combine accounts. In practice, close-out and set-off rights are standard contractual protections that allow counterparties to terminate, net or combine mutual obligations. They are essential to managing counterparty risk and maintaining the integrity of financial-market infrastructure. Requiring participants to assess, in each case, whether an enforcement action when exercising these rights might constitute an acquisition of ‘all or substantially all assets’ or ‘control’ adds unnecessary complexity when legal certainty is most critical, for example, during default or resolution scenarios.

The amendment removes the ‘control’ and ‘substantially all assets’ limitations that were previously included. Removing these tests increases clarity and certainty and ensures that routine closing out and netting are exempt from the requirement to notify and do not require assessment under the new merger control regime.

New subsection 2-22(2) therefore provides that Division 2 covers an acquisition of a share or asset under a contract where the acquisition occurs as a result of either:

•       the exercise of a right under the contract to close out any transaction relating to the contract;

•       the exercise of a right of set-off or combination of accounts under the contract.

This means that acquisitions arising from the exercise of a contractual right to close-out, right of set-off, or right of combination are not required to be notified to the Commission.

A ‘close out’ right refers to the discharge of obligations under a futures contract by entering into an equal and opposite position in a futures contract of the same kind. This includes, for example, acquisitions made under close-out netting contracts, approved real time gross settlement systems and approved multilateral netting arrangements and market netting arrangements (within the meaning of the Payment Systems and Netting Act 1998), which allow obligations between parties to be terminated and settled through a single net amount following a specified event:

A ‘right of set off’ refers to the reduction of a creditor’s claim by the amount the creditor owes to the debtor. A ‘right of combination’ refers to the entitlement of a bank to combine or set-off accounts kept by a customer (even if they are kept at different branches) and to treat the balance as a single amount either due to the customer or owing to the bank.

This exemption is intended to preserve the protections for contractual rights to close-out, netting or right of set-off that are recognised under the Payment Systems and Netting Act 1998. The determination should not be construed as derogating from protections granted under the Payment Systems and Netting Act 1998 that validate close out netting, approved real time gross settlement payment systems and approved multilateral netting arrangements and market netting arrangements.

Exercise of a right

New subsection 2-22(2) operates on the basis that the exemption applies when the exercise of the relevant contractual right results in an acquisition of a share or asset.

Although contractual rights can in some circumstances constitute an ‘interest in an asset’ and amount to an acquisition (for the purposes of section 51ABB of the CCA), the mere acquisition of a contractual power to exercise close-out or set-off rights is not an acquisition that would generally be required to be notified. This is appropriate as it is part of the ordinary contractual framework of financial arrangements.

Derivatives

Derivative transactions are generally entered into for financial risk management or investment purposes rather than to acquire business operations. Subsection 2-23(7) applies to acquisitions of derivatives (see definition in section 1-4, discussed below) or acquisitions that result from derivatives. The term ‘derivative’ includes an arrangement that is a forward, swap or option, or any combination of those.

The term ‘derivative’ is defined in section 1-4 of the Principal Determination, and its meaning has been modified by Item 2 of the Amendment Determination to the extent that the derivative is in relation to commodities.

Paragraph 761D(3)(a) of the Corporations Act provides that the term ‘derivative’ does not include arrangements for the supply of tangible property where one of the parties is expected to deliver the relevant property, and where rights and obligations under such arrangements are not usually settled by matching up arrangements with other arrangements of the same kind (that is, whereby obligations to sell for a given price are matched up against an obligation to buy for a price).

However, Item 2 provides that this exclusion from the definition of ‘derivative’ in paragraph 761D(3)(a) of the Corporations Act does not apply to derivatives relating to commodities. The term ‘commodity’ takes the same meaning as in the Corporations Act, being its ordinary meaning, and includes (but is not limited to) market-traded commodities. This amendment has been made as the acquisition of physically delivered commodities is unlikely to raise competition concerns.

In the Principal Determination, an acquisition of a derivative or resulting from a derivative could have been required to be notified if it resulted in a change in control of an entity, or if it resulted in the acquisition of all or substantially all of the assets of a business, provided the circumstances in Division 1 of Part 2 were met. Now, Item 46 of the Amendment Determination modifies the exemption to remove the ‘substantially all assets’ limitation such that the requirement to notify only applies where the acquisition results in a change in control of an entity. The removal of the ‘substantially all assets’ limitation is because an acquisition of a derivative or resulting from a derivative is unlikely to pose a risk of altering the competitive dynamics of a market as the meaning of derivative given by the Amendment Determination does not include ordinary commercial supply contracts for physically settled assets that are not commodities.

Meaning of ‘will begin, or can begin, to control’

The exemption for derivatives is subject to a fact-based ‘control’ limitation.

A person ‘will begin’ to control an entity where the effect of the acquisition is that the acquirer will be in a position to immediately exert control and strategic influence upon the target.

A person ‘can begin’ to control an entity where the acquisition gives the acquirer an enforceable right that will confer control. In certain circumstances, a person can begin to control an entity even when the right is only enforceable in the future or is enforceable upon the satisfaction of conditions.

The ‘can begin’ to control limb turns on whether the person acquires the power to exercise an enforceable right in relation to the securities of an entity (or a connected entity). It does not depend on whether the right is exercisable immediately upon acquisition. However, a right that is subject to conditions that the acquirer has limited or no influence over, or for which there is no certainty of occurring will not be excluded from the exemption. For example, if the exercise of the right is contingent upon the default of the target or the occurrence of a natural disaster the acquisition will still be exempt from the requirement to notify.

This inclusion of this limb operates as a safeguard to ensure that conditional rights, conversion mechanics or enforcement triggers that could lead to future control of an entity are assessed at the time of the acquisition. It prevents financial-market instruments from being used to obtain control through rights that crystallise only upon the occurrence of specified future events that are reasonably certain or substantially within the influence of the acquirer.

However, whether a convertible interest is within the new merger control regime depends first on whether the conversion step constitutes an acquisition under section 51ABB of the CCA. This requires identifying the precise nature of the right or interest created or transferred.

Therefore, in assessing whether the control limitation applies to a transaction:

•       First, determine whether the transaction involves the acquisition of a share, or asset for the purposes of section 51ABB of the CCA (for example, whether a conversion right results in the transfer of existing property from Party A to Party B or only in the issue of new property in the possession of Party B).

•       If so, determine whether the transaction falls within subsection 2-23(7) and assess whether, as a result of the acquisition, the acquirer ‘will begin’ or ‘can begin’ to control an entity.

Notification is required at the point the relevant power is acquired. Where the ‘can begin’ to control threshold is satisfied, it does not matter when the right may later be exercised in a way that results in actual control.

Foreign exchange contracts

Item 47 also provides that acquisitions under foreign exchange contracts are exempt from notification, in new subsection 2-23(8). These contracts are usually derivatives, as the ultimate consideration is determined by reference to a rate, including an exchange rate. However, some foreign exchange contracts are not derivatives because, for example, the future time may be less than three days. This amendment has been made as an acquisition under a foreign exchange contract is unlikely to raise competition concerns.

Under section 761A of the Corporations Act, a ‘foreign exchange contract’ means a contract:

•       to buy or sell currency (whether Australian or not); or

•       to exchange one currency (whether Australian or not) for another (whether Australian or not).

Debt instruments, money lending and financial accommodation

Item 48 repeals section 2-24 of the Principal Determination and substitutes a new subsection which provides a broad framework for exempting acquisitions that arise in the context of debt funding, credit provision, liquidity management, collateralisation, balance‑sheet management, and structured-finance activities. Such transactions are functionally distinct from acquisitions of operational businesses and are not ordinarily used to obtain market power or commercial influence over another entity.

Converting or creating a right or interest in an asset

Section 51ABB of the CCA, together with other scoping provisions (such as section 51ABN) identifies the kinds of acquisitions to which the merger provisions apply. In general, the CCA captures acquisitions by corporations or persons of:

•       shares in the capital of a body corporate;

•       assets of a person or corporation; and

•       anything prescribed by legislative instrument to be treated as an acquisition.

Transactions that do not fall within the scope of section 51ABB of the CCA are not captured by the merger provisions. In effect, the regime applies where shares in the capital of a body corporate are acquired, or an existing asset is acquired or transferred from one person to another.

This understanding is relevant to the operation of sections 2-23 and 2-24 because while some financial instruments can convert into existing assets, other financial instruments merely create rights or interests in assets that, in some cases, do not amount to a legal or equitable interest in an existing asset of a person.

•       Creating a right or interest in an asset – the creation of such a right or interest (that does not amount to a legal or equitable interest in an existing asset of a person) does not, by itself, constitute an acquisition to which the merger provisions apply under section 51ABB of the CCA. This is because the creation of a right does not involve the transfer of an asset from one person to another – for example, where no proprietary interest in an existing asset is transferred from one person to another. Given that section 51ABB does not apply, the notification thresholds are not relevant.

•       Converting a right or interest in an asset – where a conversion (or exercise) right entitles the holder to receive assets already held by another person, the conversion results in a transfer of an asset. This constitutes an acquisition under section 51ABB of the CCA because the existing asset passes from one party to another. Once a transaction falls within section 51ABB, consideration then turns to whether an exemption applies (for example under sections 2-23 or 2-24).

Main Rule – Subsection 2-24(1)

Subsection 2-24(1) identifies the classes of instruments, arrangements, and transactions for which acquisitions are excluded from the requirement to notify, provided that the control limitation in subsection 2-24(2) is not met. The subsection is designed to cover a broad spectrum of debt, lending, financing, and risk-management structures used in Australian financial markets.

This subsection covers acquisitions of shares or assets that are directly connected with, or occur as a result of, one of the financial instruments, interests, arrangements, or transactions listed in paragraphs 2-24(1)(a) to (e). These include:

•       debt instruments (whether or not contingent or conditional);

•       loans;

•       debt interests in an entity;

•       asset securitisation arrangements;

•       securities financing transactions.

Debt instrument

Paragraph 2-24(1)(a) provides an exemption for debt instruments such as:

•       bonds, including ‘covered bonds’ (under section 26 of the Banking Act 1959);

•       notes;

•       debentures;

•       loan notes;

•       commercial paper;

•       bills of exchange;

•       promissory notes; and

•       regulatory capital instruments that are in the form of a debt instrument.

The bracketed phrase in the paragraph makes clear that the exemption applies regardless of whether the debt instrument is contingent or conditional on one or more matters being met or future events occurring.

The terms ‘contingent’ and ‘conditional’ should be read as applying separately to each of the phrases ‘one or more matters being met’ and ‘future events occurring’.

Contingent and non-contingent

The example to the subsection illustrates that paragraph 2-24(1)(a) covers both contingent and non-contingent debt instruments. In relation to contingent debt instruments, this includes:

•       letters of credit;

•       bank guarantees; and

•       surety bonds.

Other similar instruments also include, but are not limited to, insurance-linked securities whose obligations depend on specified events (such as natural disasters or financial triggers). The coverage of the exemption in paragraph 2-24(1)(a) aligns with the economic substance of debt instruments, which function as risk-management or credit-support tools.

Loans

Paragraph 2-24(1)(b) provides an exemption for loans. The new definition of ‘loan’ at Item 3 of the Amendment Determination, provides that a loan includes any of the following:

•       an advance of money;

•       a provision of credit or any other form of financial accommodation;

•       a payment of an amount for, on account of, on behalf of or at the request of, an entity, if there is an express or implied obligation to repay the amount;

•       a transaction (whatever its terms or form) which in substance effects a loan of money.

This definition of ‘loan’ is non-exhaustive and is intended to apply broadly for the purposes of the Amendment Determination to capture arrangements that may not strictly qualify as ‘loans’ in other contexts (such as in an accounting or other legal context).

The exemption in paragraph 2-24(1)(b) complements the ‘debt interest in an entity’ exemption (paragraph 2-24(1)(c), discussed below), so that parties can rely on the exemption for certain loans that may not qualify as ‘debt’ for tax purposes (see the debt/equity rules in Division 974 of the ITAA 1997).

A loan may have a term of more than ten years and not satisfy the ‘present value test’ in section 974-35 of the ITAA 1997. Or a limited recourse loan arrangement may be contingent on whether the assets are sufficient to meet the obligation and so would also not be debt for tax purposes if it is not an effective non-contingent obligation to pay. These arrangements would fall out of the scope of paragraph 2-24(1)(c) and would not benefit from that exemption. The loan exemption would provide an exemption for these arrangements.

Creation of loan is not relevant

A loan, as a legal relationship, does not pre-exist in the hands of another person. The creation of the loan relationship is therefore not an acquisition within section 51ABB of the CCA.

To the extent that there is an acquisition of an asset that is within the scope of the merger control regime, the exemption in paragraph 2-24(1)(b), together with paragraph 2-24(1)(f), is intended to make it clear that the acquisition of an asset that is a loan, or is directly connected with, or occurs as a result of a loan (for example, the acquisition of an advance of money or credit resulting from the loan transaction) is exempt from notification.

Other loan types

The exemption in paragraph 2-24(1)(b) extends to acquisitions arising from established loan-market and financial accommodation practices, including, but not limited to:

•       whole of loan sales, which generally involve the sale of loans, including principal, interest rights and related rights, from one party to another party (including other lenders, securitisation vehicles, institutional investors or financial institutions) and can involve the sale of individual loans, pools, or entire loan portfolios and may occur on primary or secondary markets;

•       forward-flow arrangements, in which a buyer (often an investor or financial institution) commits to purchase loans that an originator will generate in the future, typically under agreed terms that may include purchase timing, volume, and duration;

•       sale and repurchase arrangements, whereby a buyer (often a financial institution) purchases an asset (such as a commodity) from a client for the purpose of selling that asset back to the client at a future date;

•       certain types of arrangements under a loan agreement, including debt to equity swaps (to the extent that the relevant acquisition is directly connected with or occurs as a result of such arrangements); and

•       other transfers of loan assets or receivables undertaken in the course of credit provision, refinancing, warehouse funding, or balance-sheet management etc.

Debt interest in an entity

Paragraph 2-24(1)(c) provides an exemption for debt interests in an entity (including hybrid instruments). For the purposes of this exemption, an interest in an entity is a ‘debt interest’ if it is a debt interest for tax purposes.

This is determined according to Div 974 of the ITAA 1997. Under section 974-15 of that Act, a scheme gives rise to a debt interest in an entity if, at the time the scheme comes into existence, the scheme satisfies the ‘debt test’, set out in section 974-20 of that Act.

Asset securitisation arrangements

Paragraph 2-24(1)(d) provides an exemption for acquisitions that are part of an asset securitisation arrangement. The exemption is intended to cover the full lifecycle of securitisation structures used in Australian financial markets. These transactions facilitate the conversion of illiquid financial assets into securities to raise funding, distribute or isolate risk and provide liquidity to the originator and are generally not used to obtain control of trading businesses.

What is an asset securitisation arrangement?

For the purposes of the Amendment Determination, an asset securitisation arrangement includes arrangements that are securitisations as commonly understood by the market and arrangements that are economically, structurally, or technologically similar to securitisations. This includes, but is not limited to:

•       a securitisation, covered bond, asset-backed lending, whole loan sale or forward flow arrangement;

•       a factoring, invoice financing, trade financing or receivables or other financial asset financing arrangement;

•       an arrangement that is otherwise backed by an exposure to receivables or other financial assets (including a synthetic or similar arrangement);

•       any similar financing, funding, or risk distribution arrangement (or any combination of arrangements), regardless of its terms or form and whether or not it involves related rights, securities or assets, a special purpose vehicle, credit tranching or limited recourse arrangements.

Lifecycle steps

The exemption for asset securitisation arrangements covers acquisitions that occur as part of all lifecycle steps of an asset securitisation arrangement, including the establishment, operation, variation, refinancing, restructuring, or unwinding of an asset securitisation arrangement, and all ancillary components of an asset securitisation arrangement. This includes, but is not limited to, acquisitions associated with:

•       the establishment of a warehouse vehicle, securitisation vehicle, cover pool vehicle, other entity, or vehicle for the purposes of an asset securitisation arrangement;

•       the transfer of receivables, other financial assets or related rights, securities or assets to, from or between an originator, sponsor, seller, warehouse vehicle, securitisation vehicle, cover pool vehicle, financial institution or other entity or vehicle (for example, originator to warehouse vehicle, warehouse vehicle to securitisation vehicle, securitisation vehicle to securitisation vehicle);

•       the granting, transfer or release of guarantees, credit support, security, or other interests in connection with an asset securitisation arrangement;

•       the replenishment, substitution, repurchase or extinguishment of receivables or other financial assets or related rights securities or assets in an asset securitisation arrangement;

•       the issuing of instruments or borrowings, including issuing notes, units, securities or certificates to investors or other parties;

•       transfers arising under step-up, clean-up, or other calls, amortisation, or other triggers such as repurchases and put backs;

•       transfers and refinancings of existing instruments or borrowings, including through redemptions and reissuances;

•       appointments, transfers, substitutions, retirements, and removals of roles in an asset securitisation arrangement, including trustee, security trustee, management, servicing, and backup servicing roles;

•       variation, restructuring or unwinding of asset securitisation arrangements or migrating pools,;

•       enforcement activity including receivers appointed to an asset securitisation arrangement’s vehicle’s collateral;

•       transfers related to bank accounts, custody, hedging or other derivatives, liquidity or other support facilities or other support or ancillary arrangements;

•       other sales or transfers that are necessary, tangential, or ancillary to an asset securitisation arrangement or that reflect market practice for an asset securitisation arrangement.

Each of these steps reflects the lifecycle of an asset securitisation arrangement.

Control limitation not applicable

Although securitisation structures may involve circumstances where a party takes security over the beneficial interest in a special purpose vehicle or is appointed as a trust manager or servicer, such arrangements ordinarily do not confer meaningful control over an operating enterprise that requires notification for the purposes of the new regime.

Accordingly, asset securitisation arrangements are exempt regardless of whether the acquisition results in control of an entity (see also the explanation of the control limitation above, which otherwise applies to the other types of financial market activities described in subsection 2-24(1)).

Not applying the control limitation in the context of the exemption for asset securitisation arrangements simplifies the application of the exemption by avoiding the need for businesses to assess whether the control limitation applies or not. Asset securitisation arrangements are generally not used to obtain control of operating businesses, therefore these arrangements are generally not likely to raise risks to competition.

Securitisation and lifecycle transactions involve the mechanical transfer of receivables, collateral, or funding assets without conferring control in an entity. Their functional nature and market purpose differ fundamentally from acquisitions directed at effecting control.

Securities financing transactions

Paragraph 2-24(1)(e) provides an exemption for acquisitions that are part of a securities financing transaction. A securities financing transaction includes arrangements where securities are provided as collateral to facilitate funding or liquidity, such as repurchase agreements, securities or margin lending transactions and prime brokerage transactions.

These transactions generally involve the temporary transfer of securities with an agreement to reverse the transaction at a later date and are commonly used for liquidity management, collateralised borrowing, executing trading strategies and market-making activities.

Acquisitions directly connected with, or occurring as a result of, financial instruments or arrangements

Paragraph 2-24(1)(f) ensures that the exemption in subsection 2-24(1) applies to acquisitions that are directly connected with, or occur as a result of, instruments or arrangements listed in paragraphs 2-24(1)(a) to (e). This provides comprehensive lifecycle coverage across all relevant financing, lending, securitisation, and collateral-management structures.

Specifically, acquisitions that arise at any stage of the economic life of the underlying transaction, including establishment, operation, refinancing, restructuring, collateral enforcement, and unwinding, are covered. This enables the exemption to apply to the full range of mechanical and ancillary steps that support the functioning of debt instruments, loans, debt interests, asset-securitisation arrangements, and securities financing transactions.

‘Which is part of’

The phrase ‘which is part of’ is used in paragraphs 2-24(1)(d) and (e) because those provisions describe arrangements or transactions, rather than discrete assets.

The phrase clarifies that the exemption extends to all acquisitions that form part of the broader securitisation or securities-financing structure. These arrangements often involve multiple coordinated transfers (for example, warehouse replenishment, note refinancing, collateral substitution or step-up and clean-up call events). Paragraph 2-24(1)(f) operates alongside those provisions by extending coverage to acquisitions that are not themselves part of the principal arrangement but nevertheless arise directly because the arrangement exists. This ensures that the exemption applies to all related steps undertaken for operational, funding or risk-management purposes.

Taken together, paragraphs 2-24(1)(a) to (f) ensure that subsection 2-24(1) covers:

•       acquisitions of the instruments, interests, arrangements, and transactions themselves;

•       acquisitions forming part of the structure or lifecycle of the structure or arrangement; and

•       acquisitions arising as a direct consequence of the structure or arrangement.

This reflects the operational reality of contemporary Australian financial markets, where lending, securitisation, collateralisation, and risk-transfer arrangements involve sequential or ongoing transfers of financial assets.

The control limitation – Subsection 2-24(2)

Subsection 2-24(2) limits the operation of the exemptions in paragraphs 2-24(1)(a), (b), (c) and (e). These exemptions do not apply where an acquisition has the effect that a person will begin, or can begin, to control an entity that the person did not control before the acquisition. ‘Control’ has the meaning given in section 50AA of the Corporations Act, after applying the modifications in subsection 51ABS(2) of the CCA.

The control limitation ensures that the financial-markets exemptions do not apply where a transaction, although falling within subsection 2-24(1), could result in a person obtaining control (such as the practical ability to determine the decisions or affairs) of another entity.

The explanation of the meaning of ‘will begin, or can begin, to control’ in relation to subsection 2-23(7) applies equally to this subsection.

This limitation applies to exemptions related to the following:

•       debt instruments (paragraph 2-24(1)(a));

•       loans (paragraph 2-24(1)(b));

•       debt interests in an entity (paragraph 2-24(1(c));

•       securities financing transactions (paragraph 2-24(1)(e); and

•       acquisitions that are directly connected with, or occurring as a result of, the above (paragraph 2-24(1)(f)).

However, the control limitation (which otherwise acts as a safeguard from risks to the integrity of the merger control regime by limiting the scope of the exemptions in section 2‑24) does not apply to an acquisition of a share or asset which is part of, directly connected with, or occurs as a result of, an asset securitisation arrangement.

As above, in assessing whether the control limitation applies to a transaction:

•       first, determine whether the transaction involves the acquisition of a share, or existing asset for the purposes of section 51ABB of the CCA;

•       if yes, determine whether the transaction falls within subsection 2-24(1) and whether that paragraph is subject to the control limitation (that is, the limitation applies to debt instruments, loans, debt interests and securities financing transactions, it does not apply to asset securitisation arrangements);

•       if the paragraph is subject to the control limitation, assess whether, as a result of the acquisition, the acquirer ‘will begin’ or ‘can begin’ to control an entity.

Security Interests – Subsection 2-24(3)

Taking or acquiring

The exemption from notification for security interests has been moved from paragraph 2‑24(1)(e) of the Principal Determination to subsection 2-24(3) of the Amendment Determination. This has the effect that this exemption now applies where a security interest is taken or acquired, regardless of whether there is a change in control of an entity, or an acquisition of all or substantially all of the assets of a business.

In addition, paragraph 2-24(3)(b) extends this exemption to acquisitions of shares or assets that are directly connected with the taking or acquiring of the security interest. However, this does not include acquisitions relating to the enforcement of the security interest.

Enforcement

Paragraph 2-24(3)(c) exempts an acquisition of a share or asset that is a direct result of the enforcement of a security interest, in either of the following two circumstances:

•       The acquisition is:

–      in the ordinary course of the person’s business of providing financial accommodation by any means; and

–      all parties to the acquisition were dealing with one another at arm’s length; or

•       The acquisition is:

–      for the benefit of one or more other persons in relation to financial accommodation provided by them in the ordinary course of their business of providing financial accommodation by any means; and

–      all parties to the acquisition were dealing with one another at arm’s length.

Paragraph 2-24(3)(c) is a narrower exemption than what is provided in paragraphs 2‑24(3)(a) and (b) for the taking or acquiring of the security interest, because the enforcement of the security interest raises more potential competition risks.

The term ‘arm’s length’ (defined in section 1-4) is used consistently with its meaning in the ITAA 1997. Determining what is ‘arm’s length’ is a fact-based enquiry and involves an objective assessment of whether the transaction terms reflect what would generally result if the parties were acting independently, in their best interests, free from undue influence, and with sufficient knowledge about the circumstances of the transaction. A pre-existing connection between the transacting parties does not itself disqualify an acquisition from being at ‘arm’s length’.

What is a security interest?

The term ‘security interest’ has been repealed and substituted with a new definition that encompasses:

•       a security interest (as defined by the Personal Property Securities Act 2009 (PPSA));

•       a charge (within the meaning of the Corporations Act), lien or pledge;

•       collateral under a credit support agreement.

Expanded meaning of PPSA security interest

The Principal Determination adopted the Corporations Act definition of ‘security interest’, which in turn refers to a ‘PPSA security interest’. A PPSA security interest is then defined as an interest that is a ‘security interest’ within the meaning of the PPSA and to which the PPSA applies. Sections 6 and 8 of the PPSA set out categories of interests to which the PPSA does not apply, with the result that these interests would fall outside the scope of the Principal Determination even though they were security interests.

This has been addressed in the Amendment Determination by referring instead to the meaning given by the PPSA which includes interests of a kind referred to in section 6 (connection with Australia) or section 8 of the PPSA (interests to which the PPSA does not apply), to the extent that such interests fall within the meaning of section 12 of the PPSA.

Under section 12 of the PPSA, an interest in personal property is a security interest if it is provided for by a transaction that, in substance, secures payment or performance of an obligation, regardless of its form or where title is held. The examples in that section include interests arising under any of the following:

•       fixed and floating charges;

•       chattel mortgages;

•       conditional sale agreements (including retention-of-title arrangements);

•       hire-purchase agreements;

•       pledges, trust receipts and consignments;

•       leases of goods;

•       assignments or transfers of title;

•       flawed-asset arrangements.

Charge, lien or pledge

A ‘charge’ is defined in section 9 of the Corporations Act as a charge created in any way, including a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise.

A lien is the right to hold the property of another as security for the performance of an obligation or the payment of a debt (Hall v Richards (1961) 108 CLR 84).

A pledge is a form of security created by a contract which results in a bailment of the subject matter to the creditor which he is entitled to retain until the debt is paid. It requires actual or constructive delivery of the goods to the pledgee (Askrigg Pty Ltd v Student Guild of the Curtin University of Technology (1989) 18 NSWLR 738).

Credit support agreement

A credit support agreement typically arises in the context of derivatives trading, though it also arises in other contexts such as securities financing and repurchase agreement markets. An ‘agreement’ in the credit support context is to be interpreted broadly such that it includes all the practical mechanisms and arrangements for collateral exchange. The reference in the Amendment Determination to collateral under a credit support agreement includes arrangements whereby credit support is provided by way of absolute transfer (or title transfer) or by way of security.

The reference in the Amendment Determination to collateral under a credit support agreement is documentation agnostic and applies broadly. For example, the reference in the Amendment Determination includes collateral arrangements with respect to derivatives, whether or not cleared or documented under International Swaps and Derivatives Association (ISDA) documentation (such as an ISDA Credit Support Deed or ISDA Credit Support Annex) or alternative or bespoke non-ISDA documentation. These arrangements are referred to as being under a ‘credit support agreement’.

Asset Financing – Subsection 2-24(4)

A new subsection 2-24(4) has been inserted which applies to certain asset financing arrangements. Under an asset financing arrangement, the financing provider (the financier) will usually acquire an asset from a supplier in the course of enabling a business (the client) to ‘lease’ the asset from the financier. The client may also be the supplier. For example, the financier acquires an asset from a supplier (transaction 1), then the financier provides the asset to a client, typically under a lease, hire purchase or loan agreement (transaction 2). The transactions under an asset financing arrangement can also happen simultaneously but the substance of the transactions is the same as the above.

In some of these arrangements, the financier acts as the owner of the asset during the acquisition process. The financier is the legal owner of the asset until it is transferred or fully paid off. Businesses often enter into these arrangements with financing providers to avoid bearing the upfront cost of purchasing the asset by spreading that cost over time.

Examples of asset financing arrangements include:

•       A three-party arrangement, where a financier acquires assets from a supplier (transaction 1) either on a one-off or continuing basis and then provides the client the ability to use the asset (transaction 2) under an extending finance lease, an operating lease, or by entering a rental or hire purchase arrangement.

•       A two-party arrangement, where a financier acquires assets from the client (transaction 1), and then provides the client the ability to use the asset (transaction 2) under extending finance lease, operating lease, or entering a rental or hire purchase arrangement. In this example, the client is also the supplier.

Subsection 2-24(4) provides an exemption for the acquisition of an asset (other than a share) by a person, subject to three conditions:

•       the acquisition (transaction 1) must occur in the ordinary course of the financier’s business, that is the provision of financial accommodation by any means;

•       all parties to the acquisition (the supplier and financier) must be dealing with one another at arm’s length (defined in section 1-4); and

•       the asset must be acquired for the purpose of being later acquired by another person (the client) by way of a lease or hire purchase agreement (transaction 2).

The intention of new subsection 2-24(4) is for the ‘initial’ acquisition by the financier to be exempt from the requirement to notify (transaction 1). Subsection 2-24(4) does not exempt the second transaction involving the provision of the asset to the client. Acquisitions by the client are subject to the merger control regime if the acquisition meets the thresholds and no other exemptions apply. This is intended to alleviate the requirement of the financial intermediary to notify the transaction, and the resulting double-notification. It is not intended to alleviate notification requirements for the business (the client) in relation to the second transaction.

Asset financing arrangements may also involve a special purpose vehicle used by a financier typically as a pass-through entity to acquire and/or hold the asset. The ordinary course condition should not be construed as disqualifying such arrangements.

Nominee exemption

This item inserts new subsection 2-25(3) to extend the exemption for acquisitions by nominees and other trustees to cover acquisitions upon the conversion of capital instrument that occurs in connection with prudential loss-absorption mechanisms under APRA’s prudential standards.

The amendment ensures that acquisitions made by nominees solely for the purpose of facilitating the conversion of Additional Tier 1 (AT1) and Tier 2 (T2) instruments are not subject to notification. Such acquisitions are temporary, facilitative and form part of APRA’s capital-resolution framework for stabilising a failing authorised deposit-taking institution, insurer or life company during a non-viability, loss-absorption event, or another event under which the prudential standards permit the conversion of the instrument.

APRA’s prudential framework requires certain capital instruments (classified as AT1 and T2 instruments) to convert into ordinary shares or be written off when an entity becomes, or is at risk of becoming, non-viable. These instruments operate as contractual loss absorption tools that enable a regulated entity to recapitalise without entering formal insolvency. The mechanism is fundamental to APRA’s capacity to maintain financial system stability in a crisis.

Under Prudential Standard APS 111 Capital Adequacy: Measurement of Capital (and the equivalent standards for insurers and health insurers GPS 112, LPS 112 and HPS 112):

•       a non-viability event arises when APRA determines that, without conversion or write-off, the institution would become non-viable or would require public-sector support;

•       a loss-absorption event occurs when the institution’s Common Equity Tier 1 Capital ratio falls at or below a prescribed percentage of total risk-weighted assets.

When either event occurs, the terms of issue require immediate and irreversible conversion or write-off of AT1 or T2 instruments. In practice, new shares are issued to investors or, where some investors cannot lawfully hold the shares, to a nominee who temporarily holds and transfers them on the investors’ behalf. The nominee’s acquisition of the shares is therefore an operational step in implementing the mandated loss-absorption process.

As such, new subsection 2-25(3) exempts an acquisition of a share or asset by a nominee if:

•       the acquisition occurs as a result of the conversion of a capital instrument;

•       the capital instrument was issued by an APRA-regulated body (or a holding company or subsidiary of the body) that is or was eligible for inclusion in the regulatory capital of the same body regulated by APRA under the prudential standards;

•       the conversion occurs as a result of a non-viability event or a loss-absorption event (each within the meaning of the prudential standards), or as a result of another event under which the prudential standards allow the conversion of the instrument; and

•       the acquisition occurs in accordance with, and as permitted by, the terms of the capital instrument which give effect to the prudential standards.

For the avoidance of doubt, the new subsection applies to a capital instrument that, when issued, was eligible for inclusion in the regulatory capital of the APRA-regulated body (or a holding company or subsidiary of the body), but at some point in the life of the instrument, ceased to be regulatory capital. As the instrument remains on issue it may be liable to convert in accordance with its terms.

The exemption applies only where the nominee acts under APRA’s prudential framework to implement a required conversion or write-off. It does not extend to ordinary commercial acquisitions or voluntary restructures.

Superannuation exemption

Item 50 inserts section 2-27 into the Principal Determination. This section exempts two types of acquisitions involving superannuation entities.

‘Superannuation entity’ is defined in the Superannuation Industry (Supervision) Act 1993 (SIS Act) to mean a regulated superannuation fund, an approved deposit fund, or a pooled superannuation trust.

Transfer of members’ benefits between superannuation entities

Subsection 2-27(1) exempts acquisitions that arise from the transfer of the benefits of one or more members of a superannuation entity from one superannuation entity to another superannuation entity.

Subsection 2-27(1) provides that ‘members’ takes its meaning from the SIS Act. This means that ‘member’ takes its ordinary meaning as affected by section 15B of the SIS Act.

For example, this exemption will cover an acquisition of shares or assets by a successor trustee that occurs because of:

•       a successor fund transfer, which is where member accounts and benefits are transferred from one registrable superannuation entity (RSE) licensee to another RSE licensee without the members’ consent as permitted by regulation 6.29(1)(c) of the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations);

•       an arrangement giving effect to the transfer of members’ benefits to a successor fund as permitted under Part 18 of the SIS Act;

•       a fund transfer with members’ consent as permitted by regulation 6.29(1)(a) and (b) of the SIS Regulations; or

•       a roll over with members’ consent as permitted by regulation 6.28(1)(a) and (b) of the SIS Regulations.

Change of trustee

Subsection 2-27(2) exempts acquisitions that are the result of a new trustee being appointed to a superannuation entity as part of a change of trustee for that superannuation entity.

This exemption will cover acquisitions that occur where there is a change of trustee pursuant to a Deed of Resignation and Appointment. In this case, while the trustee changes, there is no transfer of the benefits of one or more members of a superannuation entity from one superannuation entity to another superannuation entity. This type of acquisition is not considered to raise competition concerns. The exemption is intended to support these processes to continue outside the new merger control regime.

Control

Division 2 —Certain classes of acquisition that do not result in control still required to be notified

Item 53 inserts Division 2 at the end of Part 3 of the Principal Determination. Division 2 sets out notification requirements for certain classes of acquisitions that otherwise do not result in control under subsection 51ABS(1) of the CCA.

The first note under the Division 2 heading explains the operation of subsection 51ABS(1) of the CCA. Under subsection 51ABS(1) of the CCA, certain acquisitions by a person are not required to be notified if:

•       the person already controlled the body corporate before the acquisition; or

•       the person does not control the body corporate immediately after the acquisition is put into effect.

Note 1 goes on to explain that subsection 51ABS(1) does not apply to an acquisition that is in a determined class of acquisition. This is because subsection 51ABS(1) is expressed as being subject to subsection 51ABS(5). Division 2 sets out the classes of acquisitions that must nonetheless be notified to the Commission.

Note 2 explains that there is also a relevant exemption in section 51ABT of the CCA, which applies to acquisitions of Chapter 6 entities. The note clarifies that where this exemption applies, notification is not required.

Section 3-20 is an application provision which provides that Division 2 only applies where an acquisition falls within a class of acquisitions determined by a section of Division 2 if that acquisition would otherwise be required to be notified but for the operation of subsection 51ABS(1) of the CCA. That is, notification is only required where an acquisition within a class determined in Division 2 also meets the notification thresholds determined under section 51ABP of the CCA or if the acquisition is in a class determined under section 51ABQ of the CCA.

The purpose of this application provision is to ensure that the new merger control regime remains risk-based and proportionate by targeting acquisitions that are both material in scale and capable of influencing competition. The notification thresholds operate as a revenue and transaction value filter, while Division 2 defines the types of shareholdings that, because of their effect on voting power or corporate influence, require notification even where control (within the meaning of section 50AA of the Corporations Act as modified by subsection 51ABS(2) of the CCA) may not be established.

Sections 3-21, 3-22, 3-23 and 3-24 set out four circumstances in which notification under Division 2 is required. These sections are made under subsection 51ABS(6) of the CCA, which allows the Minister to determine classes of acquisitions for the purposes of paragraph 51ABS(5)(b) of the CCA.

Section 3-21 – Voting power moves from 20% or below to more than 20% – unlisted bodies corporate not widely-held

Subsection 3-21(2) provides that section 3-21 applies to an acquisition of shares in the capital of a body corporate that is not a Chapter 6 entity or listed on a foreign approved stock exchange. The effect of this is that section 3-21 applies to an acquisition of shares in unlisted companies with 50 or less members.

Subsection 3-21(2) further provides that notification may be required where the acquisition results in a person’s ‘voting power’ increasing from 20 per cent or below (including zero per cent) to more than 20 per cent.

The provision relies on the concept of ‘voting power’ as defined in section 610 of the Corporations Act. This section provides that a person’s voting power in a designated body is their votes plus the votes of their ‘associates’ divided by the total votes in the designated body multiplied by 100. ‘Associate’ is defined in sections 10 to 17 of the Corporations Act.

For many unlisted bodies corporate not widely-held, an agreement pertaining to the entity is likely to exist involving shareholders. However, in many instances, the shareholders will have disparate interests and may not act in a co-ordinated manner that is characteristic of exercising control.

To ensure that only acquisitions of material voting power over the entity are required to be notified, subsection 3-21(3) provides that when calculating a person’s voting power, disregard the votes of an entity that is taken not to be an associate of that person under subsection 1-5(4) (as added by this Amendment Determination). Section 1-5 of the Principal Determination provides the meaning for ‘connected entity’. Subsection 1-5(4) provides that entities with only minority shareholder protection rights are not to be considered associates. The meaning of ‘minority shareholder protection rights’ is provided in section 1-3 of the Principal Determination (and is discussed earlier in this Explanatory Statement).

A note under subsection (3) explains that the subsection has the effect of disregarding the votes of entities who are considered associates only because they have entered into, or have proposed to enter into, an agreement with the person for minority shareholder protection rights.

The 20 per cent threshold coupled with the modification for determining voting power is intended to provide a bright line for determining material influence, consistent with the Foreign Acquisitions and Takeovers Act 1975, where 20 per cent constitutes a substantial interest. This is intended to provide a clear and administrable standard that avoids subjective inquiries into control while ensuring the Commission is notified of transactions that could alter market dynamics.

There are two notes under subsection 3-21(3). Note 1 describes paragraph 12(2)(b) of the Corporations Act to aid readers’ understanding of the operation of section 3-21. Note 2 explains how voting power operates in the Corporations Act and the significance of paragraph 12(2)(b) to determining someone’s voting power.

Section 3-22 – Voting power increases from 20% to 50% to 50% or more – all bodies corporate

Subsection 3-22(2) provides that section 3-22 applies to acquisitions of shares in the capital of a body corporate where the acquisition results in someone’s voting power in the body corporate increasing from a starting point that is 20 per cent or more but 50 per cent or less to an end point that is 50 per cent or more.

The effect of this is that section 3-22 applies to both unlisted bodies corporate and Chapter 6 entities.

Like section 3-21, section 3-22 also relies on the concept of ‘voting power’ (within the meaning of the Corporations Act) and applies the same modifications to calculating voting power (see above discussion of this in relation to section 3-21). However, as section 3-22 applies to Chapter 6 entities in addition to unlisted bodies corporate (not widely-held), subsection 3-22(3) provides that the modified calculation of voting power does not apply to calculating voting power for a Chapter 6 entity – but does apply to calculating voting power for a non-Chapter 6 entity.

Section 3-22 is intended to ensure that when a principal party increases its shareholding from a starting point between 20 per cent and 50 per cent to an end point of 50 per cent or more, the transaction is required to be notified if it meets the monetary thresholds and no other exemptions apply. For example, this would include where a principal party increases its voting power from 20 per cent to 50 per cent, or where a principal party increases its shareholding from 50 per cent to 51 per cent.

This captures transitions to majority control that represent qualitative changes from shared or constrained decision-making to substantial autonomy in corporate governance matters. For instance, the point at which an acquirer gains the capacity to unilaterally pass ordinary resolutions, appoint or remove directors, and shape corporate strategy, are shifts in governance power that can significantly alter market behaviour, even where the acquirer may already have some level of influence or control.

The 50 per cent threshold is adopted as a bright-line marker for majority control and applies consistently across all entity types. The provision also captures acquisitions resulting in exactly 50 per cent voting power, recognising that such holdings can still confer significant influence (including, but not limited to, where the remainder of the shares are widely dispersed). For example, this would give the acquirer voting power to block key corporate actions, with the potential to significantly affect competition.

Section 3-22 applies regardless of whether the acquirer had pre-existing control under section 50AA of the Corporations Act (as modified by section 51ABS of the CCA), recognising that although control (within the meaning of those sections) is a binary concept, incremental changes in ownership concentration can significantly alter competitive dynamics.

Section 3-23 – Voting power moves from 20% or below to more than 20% – already controlled widely held body corporate

Subsection 3-23(2) provides that section 3-23 applies where the acquisition is of shares in a Chapter 6 entity; and the principal party controlled (within the meaning of section 50AA of the Corporations Act after applying the modifications set out in subsection 51ABS(2) of the CCA) the Chapter 6 entity immediately before the acquisition was put into effect; and the acquisition results in someone’s voting power (within the meaning of the Corporations Act) in the Chapter 6 entity to increase from 20 per cent or below to more than 20 per cent.

As section 3-23 only applies to Chapter 6 entities, the concept of voting power is not modified as it is for sections 3-21 and 3-22.

Section 3-23 is intended to operate as an integrity safeguard by addressing a potential gap that could arise where a person already controls a Chapter 6 entity below the 20 per cent threshold. Practical control below 20 per cent can arise through contractual rights, board representation or association arrangements.

For example, without this rule, a principal party who establishes control of a listed company while holding less than 20 per cent voting power could subsequently increase their voting power above 20 per cent without notification, as the initial acquisition would be exempt under section 51ABT (below 20 per cent voting power in a Chapter 6 entity); and subsequent acquisitions would be exempt under paragraph 51ABS(1)(b) (the person already has control).

Section 3-24 – Voting power moves from below 20% to 50% or more – do not control widely held body corporate before or after acquisition

Subsection 3-24(2) provides that section 3-24 applies where the acquisition is of shares in the capital of a Chapter 6 entity; and the principal party does not control (within the meaning of section 50AA of the Corporations Act after applying the modifications set out in subsection 51ABS(2) of the CCA) the Chapter 6 entity immediately before or after the acquisition was put into effect; and the acquisition results in someone’s voting power (within the meaning of the Corporations Act) in Chapter 6 entity increasing from below 20 per cent to 50 per cent or more.

Like section 3-23, as section 3-24 only applies to Chapter 6 entities, the concept of voting power is not modified like it is for sections 3-21 and 3-22.

This provision fills a potential residual gap for Chapter 6 entities if a principal party gains 50 per cent or more of voting power without obtaining statutory control. It ensures that acquisitions moving directly from minimal shareholdings (including 0 per cent) to 50 per cent or more are subject to notification where they could confer substantial influence over strategic decisions.

As an integrity measure, it also captures exactly 50 per cent holdings, ensuring such transactions are notified and the Commission has visibility.

Other Amendments

Item 54

Paragraph 5-2(1)(d) of the Principal Determination provides that certain information must be included on the acquisitions register under paragraph 51ABZZI(6)(b) of the CCA if the Commission consults with persons under paragraph 51ABZZD(2)(d).

Paragraph 51ABZZD(2)(d) of the CCA provides that, before making an acquisition determination, the Commission may consult with such persons as the Commission believes to be reasonable and appropriate for the purposes of making the determination.

Paragraph 5-2(1)(d) of the Principal Determination provides that if such consultation occurs, the Commission must publish a statement that consultation is occurring and the nature of the consultation.

This item repeals paragraph 5-2(1)(d) and replaces it with an equivalent requirement if the Commission gives a person written notice inviting them to make a submission under paragraph 51ABZZD(2)(a) of the CCA. In such circumstances, the acquisitions register must include a statement that this form of consultation is occurring and details about the consultation process.

The intent for this amendment is to effectively provide for market consultation by the Commission, which is consistent with one of the purposes of the acquisition register – that being to allow relevant stakeholders to be aware of intended acquisitions so they can engage with the Commission review. The transparency objectives of the acquisitions register are better achieved by requiring the publication of the Commission’s market consultation process conducted in accordance with paragraph 51ABZZD(2)(a), so that a broad range of interested persons are able to make submissions. It is considered that the previous paragraph 5-2(1)(d) did not achieve this.

Item 56

This item makes mechanical amendments to the indexing provisions in section 7-1 as a result of the new asset acquisition threshold test at new section 2-4. To accommodate the new asset acquisition threshold tests, the transaction value test has been split into 3 separate tests, in subsections 1-12(1), (2) and (3). This item ensures that the monetary value in each of these subsections is indexed in line with the existing indexing provisions within the Principal Determination.

Schedule 2 – Amendments relating to notification waiver applications

Schedule 2 to the Amendment Determination contains new provisions establishing the process for notification waiver applications. The notification waiver process allows parties to an acquisition to request that the Commission relieve them of the obligation to notify an acquisition that may otherwise be required to be notified.

Item 1

This item amends section 1-3 to insert Note 5. Section 1-3 provides for the authority under which the Principal Determination is made. The new Note 5 informs that the authority for the requirements for a notification waiver application is provided by subsection 51ABU(3) of the CCA, which allows the Minister to determine these requirements. Additionally, Note 5 informs that the authority for the requirements that the Commission must comply with when determining a notification waiver application is provided by subsection 51ABV(3), which allows the Minister to determine these requirements. The intention for Note 5 is to provide guidance to readers.

Items 2-4

Paragraph 5-2(1)(a) of the Principal Determination provides that certain information must be included on the acquisitions register under paragraph 51ABZZI(6)(b) of the CCA if a person has applied for a notification waiver.

Item 2 repeals paragraph 5-2(1)(a) and replaces the subsection with a reformatted version of the provision. The amendment does not alter the substance of the provision. In other words, the requirements of the provision are the same. These are that, where a person has applied for a notification waiver in relation to an acquisition, the Commission is to publish on the acquisitions register a statement to that effect, and a summary of the details of the acquisition as well as a summary of any decision of the Commission in relation to the application. It is expected that the summary of the details of the acquisition will be a brief presentation of the most relevant details of the acquisition. The summary of the decision may be a copy of the written notice and explanation of the determination that the Commission must provide to the applicant pursuant to subsection 51ABV(5) of the CCA.

Paragraph 51ABZZI(6)(c) provides that the Minister may determine a time period for information or documents that are determined under paragraph 51ABZZI(6)(b)) to be included on the acquisitions register.

Item 3 inserts new paragraph 5-2(2)(aa), which provides that information or a document mentioned in paragraph 5-2(1)(a) must be included on the acquisitions register within 1 business day of the relevant decision on the notification waiver application being made or, if that is not practicable, as soon as practicable after that day. This will ensure that the public is made aware of decisions on notification waiver applications in a timely manner after a determination is made.

Item 4 inserts a note at the end of subsection 5-2(2), The note informs that in certain special circumstances, some information and documents may not be added to the acquisitions register, or can only be included at a later time, and directs attention to new sections 6-5 and 6-6. These new provisions provide for the treatment of a notification waiver application made in relation to a surprise hostile takeover or voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999 (FSTR Act), which have different requirements.

Items 5 and 6

Item 5 repeals the heading to Part 6, which was ‘Forms’ and substitutes ‘Part 6—Forms and the manner for determining applications’.

Item 6 repeals the heading to Division 1 of Part 6, which was ‘Division 1—Determination of forms, information and documents’ and substitutes ‘Division 1—Determination of forms, information and documents, and manner for determining applications’.

These amendments reflect the expanded content of Part 6.

Items 7 and 9

The Competition and Consumer (Notification of Acquisitions—Forms) Determination 2025 remakes the provisions in Part 6 of the Principal Determination that relate to the notification and public benefit application forms in similar terms. The Amendment Determination supports the Competition and Consumer (Notification of Acquisitions—Forms) Determination 2025 by repealing the provisions in Part 6 of the Principal Determination that relate to the notification and public benefit application forms.

Item 8

This item inserts new sections 6-3, 6-4, 6-5 and 6-6 into Division 1 of Part 6.

Requirements for making a notification waiver application

Section 6-3, which is made for the purposes of subsection 51ABU(3) of the CCA, provides for the requirements for making a notification waiver application. These are that the application be made in the form set out in Division 5 of Part 6 of the Principal Determination and accompanied by the information and documents set out in that form. Further, that the determined fee (if any), must be paid. A note below section 6-3 informs that the fee must accompany a notification waiver application as per subsection 7-50(1).

Commission determination of notification waiver applications: general case

Section 6-4, which is made under subsection 51ABV(3) of the CCA, provides for determining a general case notification waiver application (these are notification waiver applications other than those covered by sections 6-5 or 6-6, surprise hostile takeovers and voluntary transfers under the FSTR Act). If the Commission has not decided to grant or not grant the notification waiver by the end of the 25th business day from the day after the notification waiver application was received by the Commission then, on the first business day after this, the Commission must make a determination to not grant the notification waiver. This maximum timeframe is intended to support timely and efficient determinations of notification waiver applications and provide certainty to notification waiver applicants.

Commission determination of notification waiver applications: surprise hostile takeovers

The publication of details of a notification waiver application on the acquisitions register may unduly impact the ability to make a surprise hostile takeover bid where on-market acquisitions commence immediately after a bid is made public. To accommodate these kinds of takeover bids, a bidder proposing to acquire shares in a Chapter 6 entity through a bid that has not been made public may request that the notification waiver application be kept confidential for a period. Section 6-5 is intended to give effect to this.

Section 6-5 provides for determining a notification waiver application made in relation to a surprise hostile takeover acquisition. For this provision to apply, subsection 6-5(1) requires that the acquisition and body corporate must satisfy paragraph 51ABZZL(1)(a), (b) and (c) of the CCA; the application includes a request that section 6-5 apply; and the request satisfies subsection 6-5(2).

For a request to satisfy subsection 6-5(2), the request needs to state the information set out in paragraphs 51ABZZL(2)(a) and (b) of the CCA. Namely, that the body corporate is a Chapter 6 entity and the acquisition is a takeover acquisition in relation to a proposed takeover bid, and that the bidder (within the meaning of the Corporations Act) will, if the Commission makes a determination to grant the notification waiver, give a bidder’s statement (within the meaning of the Corporations Act) to the Commission and the acquisition target no later than 5 business days after the day on which the Commission gives the applicant the written notice and explanation required by subsection 51ABV(5) of the CCA. Additionally, the bidder will, after the proposed bid has been made public, notify the Commission, in writing, that the bid has been made public within 1 business day of the bid having been publicly proposed, or if that is not practicable, as soon as practicable after that day.

Subsection 6-5(3) provides that, despite the requirement in paragraphs 5-2(1)(a) and 5‑2(2)(aa) (as added by this Amendment Determination), the Commission must not include information or documents on the acquisitions register for a notification waiver application regarding a surprise hostile takeover before receiving the bidder’s statement for the acquisition. Once the bidder’s statement is received, the Commission must include, on the acquisitions register, the information required by paragraph 5-2(1)(a) within 2 business days or, if that is not practicable, as soon as practicable after that day.

Subsection 6-5(4) provides that if the Commission has not made a determination in relation to a notification waiver application for a surprise hostile takeover by the end of the 25th business day from the day after the application is received, the Commission must make a determination to refuse the notification waiver on the first business day after the period ends. As with the general case, set out in section 6-4, this maximum timeframe is intended to support timely and efficient determinations of notification waiver applications and provide certainty to notification waiver applicants.

Subsection 6-5(5) provides that the Commission may, at any time within 15 business days from the day after a notification waiver application for a surprise hostile takeover is received, determine that the provisions for dealing with a notification waiver application for a surprise hostile takeover do not apply. The Commission may only make this decision if satisfied that a matter set out in paragraphs 51ABZZL(5)(c), (d) or (e) applies in relation to the acquisition. Subsection 6-5(6) requires the Commission to give the applicant written notice of this decision and provides that section 6-5 is taken to have never applied to the notification waiver application.

Commission determination of notification waiver applications: voluntary transfers under the FSTR Act

The intent for section 6-6 is to extend the availability of confidential reviews of certain voluntary transfers to notification waiver applications.

Section 6-6 provides for determining a notification waiver application made in relation to an acquisition that is the result of a voluntary transfer under the FSTR Act. For this provision to apply, subsection 6-6(1) provides that the notification waiver application must relate to an acquisition that satisfies paragraphs 51ABZZQ(1)(a) and (b) of the CCA.

Subsection 6-6(2) provides that the Commission must not include information or documents on the acquisitions register for a notification waiver application made regarding a voluntary transfer under the FSTR Act that satisfies paragraphs 51ABZZQ(1)(a) and (b) before whichever of the following occurs:

•       The Commission makes a determination to grant the notification waiver. In this case, the information required by paragraph 5-2(1)(a) must be included on the acquisitions register within 1 business day after the determination is made or, if that is not practicable, as soon as practicable after that day.

•       The Commission makes a determination not to grant the notification waiver and then, subsequently, following notification of the acquisition, makes a final decision whether to put the acquisition into effect (pursuant to subsection 51ABZE of the CCA). In this case, the Commission must include the information required by paragraph 5-2(1)(a) on the acquisitions register within 1 business day after the determination made under subsection 51ABZE(1) or, if that is not practicable, as soon as practicable after that day.

A note below subsection 6-6(2) explains that if neither event mentioned in paragraphs (a) or (b) occurs, then no information or documents are to be published on the acquisitions register in relation to the application.

Subsection 6-6(3) is made for the purposes of subsection 51ABV(3) of the CCA, which allows the Minister to determine requirements that the Commission must have regard to when deciding whether to grant or refuse a notification waiver application. This subsection provides that, if the Commission has not made a determination in relation to a notification waiver application for an acquisition pursuant to voluntary transfer under the FSTR Act by the end of the 25th business day from the day after receipt of an application, the Commission must make a determination to refuse to grant the notification waiver on the first business day after the period ends.

Item 10

This item adds a new Division 5—Application for notification waiver to Part 6. This new Division sets out the requirements for the application for notification waiver form.

Explanatory notes are included to inform that guidance material for completing the form is available on the Commission’s website and that a notification waiver application must be accompanied by a fee determined under subsection 7-50(1).

Item 1 – Parties to the acquisition

All references to a ‘party to the acquisition’ in this Division are references to each principal party of the acquisition, the target of the acquisition, and each connected entity of the principal party and target, unless the contrary intention is stated.

This item requires that information about each party to the acquisition, such as party name, identifying number if applicable (for example, ABN, ACN or equivalent or unique identifier), and contact details be provided.

Items 2 and 3 – Details of acquisition

Item 2 requires the applicant to provide a non-confidential summary of the acquisition, which may be published on the acquisitions register.

Item 2(b) must be answered by providing relevant ANZSIC references. ANZSIC is the Australian and New Zealand Standard Industrial Classification (ANZSIC) 2006 (1292.0) published by the Australian Statistician. It is a standard classification developed for use in Australia and New Zealand.

At the time the Amendment Determination was registered, this document was freely available on the Australian Bureau of Statistics’ (ABS) website (www.abs.gov.au). ANZSIC is used as a standard means of classifying business units into industry sectors.

The applicant can search the ANZSIC by keyword on the ABS’ website to find ANZSIC references and their activity descriptions. General classification principles, methods and issues are outlined in the above document. The basic method for classifying units to categories in the ANZSIC is to classify each unit according to its predominant activity. The applicant should classify units to the lowest level of detail of the classification in addressing item 2(b).

Item 2(c) requires the applicant to describe the goods or services supplied by the parties to the acquisition. A business input acquisition is defined for the purposes of the form under item 3 as an acquisition in which a party is acquiring an asset that is an input into their business activities (such as land). Note 2 to item 2 explains that in answering paragraph 2(c) for a business input acquisition, the focus should be on the goods or services that will be supplied by the principal party, and each connected entity of the principal party, in reliance on the acquired business input. The note also clarifies the applicant is only required to provide a brief description of the goods or services supplied by the target in relation to a business input acquisition.

Item 3 requires the applicant to provide further details in relation to the acquisition, covering all of the following:

•       any further information that could not be provided in response to item 2 because it is confidential or could not be provided in a plain language summary;

•       the type of acquisition (with horizontal, vertical, conglomerate and business input acquisitions being identified as examples and a note below item 3 explaining what these types of acquisitions involve);

•       the commercial rationale for the acquisition;

•       the consideration received or receivable for all of the shares and assets being acquired as part of the contract etc. in Australian dollars;

•       the transaction value calculated by the parties to the acquisition when applying the transaction value tests (if applicable);

•       if the acquisition has, or will have, related filings in other countries, each foreign regulator that has been or will be notified (if applicable).

Items 4-10 – Information required

Item 4 requires the applicant to inform whether the acquisition meets any of the specified notification thresholds (namely the circumstances set out in sections 2-1, 2-2, 2-3 and 2-4), does not meet any specified threshold, or that the party is unsure whether any specified threshold is met. If the answer is yes, the party is directed to provide brief reasons why the threshold is met. If the answer is no or unsure, the party is directed to provide brief reasons why the threshold is not met or may not be met with reference to each specified threshold, together with supporting information and evidence.

Item 5 requires the applicant to answer yes, no, or unsure to whether the acquisition is in a class of acquisitions determined under subsection 51ABQ(1) of the CCA for the purposes of subparagraph 51ABO(b)(ii) of the CCA. Namely, classes listed in sections 3-1 and 3-2. If the answer is yes, the party is directed to provide brief reasons why the acquisition is of the determined class. If the answer is no or unsure, the party is directed to provide brief reasons why the acquisition is not or may not be in the determined class with reference to the determined class, together with supporting information and evidence.

Item 6 requires the applicant to answer yes, no, or unsure to whether the acquisition is for any other reason not required to be notified (such as if an exemption applies). The party is directed to provide brief reasons, together with supporting information and evidence.

Item 7 requires the applicant to provide the following for each relevant good or service supplied or potentially supplied by the parties to the acquisition, only where there would be actual or potential horizontal or vertical overlap between the parties post-acquisition:

•       describe the good or service and the geographic areas in Australia where it is supplied;

•       identify other key suppliers of the good or service in Australia; and

•       provide a relevant market definition or definitions, for the good or service, together with a statement of the parties’ reasons for identifying those definitions.

There are three notes below item 7.

•       Note 1 seeks to clarify when a good or service is a relevant good or service in relation to an acquisition.

•       Note 2 explains that if the acquisition is a business input acquisition – such as the acquisition of vacant land – relevant goods or services are the goods or services that will be supplied by the principal party (that is, the acquirer) and its connected entities using the business input.

•       Note 3 seeks to clarify how to determine the relevant market definition or definitions.

Item 8 requires that, for each relevant market definition as identified in question 7(c), the applicant must provide estimated market shares for each party to the acquisition and other key suppliers for the most recently completed 12-month financial reporting period prior to the date the application is submitted to the Commission. The question requires the applicant to provide the estimates in the following format:

•       Market definition;

•       Year;

•       Supplier;

•       Australian revenue (A$);

•       Market share (by revenue) (%).

The note to the item clarifies that the monetary figures must be stated in Australian dollars (A$), and if figures are provided in other currencies, those currencies must be clearly identified.

Item 9 requires the applicant to answer yes or no to whether they intend to make a request under paragraph 6-5(1)(b) (as added by this Amendment Determination) for the Commission to apply section 6-5 of that instrument (surprise hostile takeovers) to the application, for a confidential review. If the answer is yes, the party is directed to provide details of the statements to be made under subsection 6-5(2).

Item 10 requires the applicant to answer yes or no to whether the acquisition, or part of the acquisition, is a voluntary transfer of business (within the meaning of the FSTR Act). If the answer is yes, the party is directed to provide a copy of the certificate of transfer.

Item 11 – Documents required

This item requires the applicant to provide final or most recent versions of all transaction documents, such as the sale and purchase agreement, heads of agreement, offer documents, and a list of any other agreements between the parties related to the acquisition, including any supply or other ancillary agreements that are conditional on the acquisition.

Item 12 - Declaration

This item requires than an authorised person of the applicant for the notification waiver must complete the declaration set out in the form, including their name and position. If the applicant is not the principal party to the acquisition, or if there is more than one principal party, a separate declaration must be completed for the applicant and each principal party.

Item 11

Section 10-7 provides that Parts 5 and 6 of the Principal Determination (as amended by the Amendment Determination) apply to notifications and applications made on or after 1 January 2026.

Schedule 3 – Amendments relating to Tribunal review

Acquisition determinations by the Commission of notifications and public benefit applications may be reviewed by the Australian Competition Tribunal, as can certain other internal decisions if they have undergone an internal review or are otherwise subject to Tribunal review under section 51ABZZG of the CCA.

While there is provision in section 51ABV for the Minister to provide for Tribunal review of notification waiver determinations by the Commission, this Determination does not provide for Tribunal review for notification waiver determinations. This is appropriate to ensure efficient and effective administration of Australia’s merger control regime, and to provide certainty and reduce costs for businesses and the community, particularly due to the commercially time-sensitive nature of acquisitions. By default, it is the overarching expectation that acquisitions that meet the circumstances set by the Minister are required to be notified. The nature of a notification waiver determination is preliminary or procedural. A decision not to grant a notification waiver would mean the acquisition would have to be notified if it meets the notification thresholds and is not otherwise exempt, and a determination by the Commission on the notification is reviewable.

Item 1

Section 1-3 sets out the authority the Principal Determination is made under. There are several notes under section 1-3, each of which specifies a head of power for various sections of the Principal Determination. This item adds some text to note 7, reflecting that the amendments made by Item 5 below in relation to fees for Tribunal review are empowered by subsection 112(2) of the CCA.

Items 2-4

Section 7-21 sets out requirements for applying for Tribunal review of an acquisition determination under s 100C of the CCA. Under subsection 7-21(2), a notifying party who applies must meet the requirements in subsections (3) and (4), while any other person who makes an application must meet the requirements in subsections (3) and (5). There is only one requirement in subsection (5), so for readability these items restructure the provision to incorporate it within subsection (2).

Item 2 incorporates the requirement in subsection (5) into subsection (2). Item 4 then repeals subsection (5) (including the note). Item 3 replicates the repealed note under subsection (2).

Item 5

This item provides for fees that must be paid for Tribunal review by inserting section 7-23.

Under the CCA, a person may apply for Tribunal review of an internal decision (under Division 1A) or an acquisition determination (under Division 1B). New subsection 7-23(2) sets a fee of $0 for applications for a review of an internal decision as the government does not seek to charge fees for these reviews.

New subsection 7-23(3) provides the application fee for review of an acquisition determination. The application fee is 0.12 per cent of the acquisition’s transaction value (capped at $2.95 million). Transaction value is calculated by the greater of the market values of all the shares or assets being acquired, and the consideration received for the acquisition. Linking the fee to transaction value reduces the risk of fees being a deterrent to seeking Tribunal review. The cap of $2.95 million will be indexed via the GDP price deflator in section 7-1 (see items 55 and 57 in Schedule 1 to the Amendment Determination).

New subsection 7-23(4) provides that the application fee for review of an acquisition determination does not apply in any of the following circumstances:

•       The transaction value is less than $50 million;

•       The applicant is a small business entity;

•       The applicant is a small or medium registered entity under section 205-25 of the Australian Charities and Not-for-profits Commission Act 2012 (which means the applicant is registered under that Act and has less than $3 million in revenue);

•       The applicant is a consumer association or consumer interest group.

The phrase ‘consumer association or consumer interest group’ is not a new term. It was used in the Mergers Act (see section 100S of the CCA) and exists within the National Electricity Law under state legislation (see for example section 16 of the Schedule to the National Electricity (South Australia) Act 1996).

In relation to the provisions on Tribunal fees, the intent is that an association or body (whether incorporated or unincorporated) receives a fee waiver if it is a consumer association or consumer interest group. A consumer association or consumer interest group is an association or body that represents, advocates for, and promotes the rights and interests of consumers, including end consumers of particular goods or services and consumers more generally.

The Tribunal also has the discretion to waive any application fee if it determines that the applicant does not have the capacity to pay based on the applicant’s income, expenses, liabilities, and assets.

New subsections 7-23(5) and (6) set the time the application fee must be paid. The fee must be paid at the time the application is made. Not paying the fee does not mean the application is not valid, but under subsection (6) the Tribunal does not have to consider the application until the fee is paid.

New subsections 7-23(7), (8) and (9) allow the Tribunal the discretion to specify that only one fee is payable in relation to multiple applications where:

•       The applicant is the same (or it is reasonable to treat the applications as relating to the same applicant); and

•       The applications may be conveniently heard at the same time.

If the two applications would have had different applications fees, the Tribunal must set the higher fee under new subsection 7-23(9).

New subsection 7-23(10) provides circumstances where an application fee must be fully or partially refunded. These are outlined in Table 1 below.

Table 1: Circumstances where a Tribunal application fee must be refunded

Schedule 4

Schedule 4 to the Amendment Determination repeals the definition of quasi-land right in section 1-4 of the Principal Determination and substitutes a new definition – the only change being to update the cross-reference to the definition of ‘forestry operations’ in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) from subsection 40(2) to section 42A. This change is consequential to amendments to the EPBC Act which will move the definition of ‘forestry operations’ to section 42A. The relevant amendments to the EPBC Act will commence on a day fixed by proclamation or the day after the end of a 12-month period after Royal Assent.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 (the Amendment Determination) is a legislative instrument made under the Competition and Consumer Act 2010 (the CCA). It supports the new merger control regime under the CCA by making the following changes to the Competition and Consumer (Notification of Acquisitions) Determination 2025 (the Principal Determination):

•       Creates new threshold tests for asset acquisitions, and takes a reformulated approach to acquisitions of all, or substantially all, of the assets of a business.

•       Sets notification requirements for certain classes of acquisitions that otherwise do not result in control.

•       Provides that both of the above changes start from 1 April 2026.

•       Adds two additional types of acquisitions that are to be disregarded for the serial acquisitions test.

•       Makes changes to expand the various exemptions for land acquisitions.

•       Makes changes to expand the various exemptions for financial market acquisitions.

•       Specifies details of the process for making a notification waiver application, including setting out the application form.

•       Removes the non-disallowable forms relating to applying for a notification and applying for public benefit consideration.

•       Sets the fees for applying for Australian Competition Tribunal review.

Human rights implications

The Amendment Determination engages the right to protection from arbitrary or unlawful interference with privacy under article 17 of the International Covenant on Civil and Political Rights (ICCPR), and the right to a fair trial and fair hearing under articles 9 and 14 of the ICCPR.

Right to Privacy

The Amendment Determination engages the right to protection from unlawful or arbitrary interference with privacy under Article 17 of the ICCPR because it requires notifying parties to submit forms, information and documents that may include personal information when making a notification waiver application to the Commission.

The right in Article 17 may be subject to permissible limitations, where these limitations are authorised by law and are not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The UN Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

The amendments are necessary as they help to ensure the Commission has the required information to undertake its functions and powers under the new merger control regime to determine whether acquisitions should be given a waiver from the requirement to notify the Commission.

These new provisions are appropriate as to the extent the Commission receives personal information as part of their functions and powers, it will handle that information in accordance with its obligations under the Privacy Act 1998 including under Australian Privacy Principle 3 to not collect personal information unless it is reasonably necessary for, or directly related to, one or more of the Commission’s functions or activities.

Accordingly, any interference with privacy under the Amendment Determination is lawful, necessary, and proportionate, and is therefore consistent with Article 17 of the ICCPR.

Conclusion

The Amendment Determination is compatible with human rights as to the extent human rights issues are engaged, such engagement is necessary and proportionate to the intended policy outcome.