EXPLANATORY STATEMENT
Issued by authority of the Assistant Minister for Productivity, Competition, Charities and Treasury
Competition and Consumer Act 2010
Competition and Consumer (Notification of Acquisitions—Forms) Determination 2025
The Competition and Consumer (Notification of Acquisitions—Forms) Determination 2025 (the Forms Determination) is a legislative instrument made under the Competition and Consumer Act 2010 (the CCA).
Subsection 51ABY(5) of the CCA provides that the Minister may determine a form in relation to a notification. It also provides that the Minister may determine information or documents to be included in or accompanied by a notification.
Subsection 51ABZQ(5) of the CCA provides that the Minister may determine a form in relation to a public benefit application. It also provides that the Minister may determine information or documents to be included in or accompanied by such an application.
The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (the Mergers Act) introduced a new merger control system in the CCA. This new system requires certain acquisitions of shares or assets to be notified to the Australian Competition and Consumer Commission (the Commission) for assessment prior to completion.
Part 6 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (the Determination) supported the new system by determining the notification and public benefit application forms and the information and documents required to accompany such forms. The Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 repeals Part 6 of the Determination.
The purpose of the Forms Determination is to remake Part 6 of the Determination in similar terms in a separate instrument.
The Forms Determination is a legislative instrument for the purposes of the Legislation Act 2003. In accordance with subsection 44(2) of the Legislation Act 2003, the Forms Determination is not subject to disallowance (see subsections 51ABY(7) and 51ABZQ(6) of the CCA).
No consultation has been undertaken on the Forms Determination as it is remakes Part 6 of the Determination, which was subject to consultation, and is otherwise minor and machinery in nature.
The CCA specifies no conditions that need to be satisfied before the power to make the Forms Determination may be exercised.
The Forms Determination commences immediately after Schedule 2 to the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 commences.
Details of the Forms Determination 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—Forms) Determination 2025
Part 1 – Preliminary
Section 1-1 – Name
This section provides that the name of the instrument is the Competition and Consumer (Notification of Acquisitions—Forms) Determination 2025 (the Forms Determination).
Section 1-2 – Commencement
This section provides that the Forms Determination commences immediately after Schedule 2 to the Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 commences.
Section 1-3 – Authority
This section provides that the Forms Determination is made under the Competition and Consumer Act 2010 (the CCA).
Section 1-4 – Interpretation
This section provides that the Forms Determination incorporates, and is to be read together with, the Competition and Consumer (Notification of Acquisitions) Determination 2025 (the Determination).
Note 1 to this section directs the reader to the definitions contained in the Determination. The effect of this section is that the definitions contained in, and context and purpose of, the Determination apply to this instrument as if this instrument were part of that instrument.
Note 2 to this section explains that the structure and numbering of the remaining parts of this instrument adopt the structure and numbering from the Determination to assist the reader in reading the two instruments together.
Part 6 – Forms and manner of determining applications
Division 1 – Determination of forms, information and documents, and manner for determining applications
Section 6-1 – Notification of proposed acquisition
Under section 51ABY of the CCA, the Minister may determine a form in relation to a notification. The Minister may also determine information or documents to be included in or accompany said notification (see paragraphs 51ABY(5)(a) and (b) of the CCA). The extent to which the notification is in that form, or includes or is accompanied by such information, are matters to which the Australian Competition and Consumer Commission (the Commission) may have regard. The Commission is to have regard to those matters in considering whether the notification is materially incomplete, materially misleading, or contains information that is false in a material particular (see subsection 51ABY(2) and paragraphs 51ABY(4)(a) and (b) of the CCA).
This section determines the forms to be used by the notifying party, and determines the information and documents required to accompany the forms. There is a short form and a long form (at Divisions 2 and 3 to Part 6 of the Forms Determination). These ensure that an applicant provides relevant information to facilitate the Commission in carrying out an efficient and effective review of an acquisition.
Merger parties will be able to submit a ‘simple’ shorter notification form for acquisitions that are less likely to raise competition concerns, and a more detailed longer notification form for others.
Section 6-2 – Public benefit application
Under paragraph 51ABZQ(5)(a) of the CCA, the Minister may determine a form in relation to a public benefit application. The Minister may also determine information or documents to be included in or accompany the application (see paragraph 51ABZQ(5)(b) of the CCA). The extent to which the application is in that form, or includes or is accompanied by such information, are matters to which the Commission may have regard (see paragraphs 51ABZQ(4)(a) and (b) of the CCA). The Commission is to have regard to those matters in considering whether the application is materially incomplete, materially misleading, or contains information that is false in a material particular (see subsections 51ABZQ(2) and (4) of the CCA).
This section determines the form to be used by the party making a public benefit application, and determines the information and documents required to accompany the form. There is only one form, at Division 4 of Part 6 of the Forms Determination. The form ensures that an applicant provides relevant information to facilitate the Commission in carrying out an efficient and effective review of whether an acquisition is of public benefit.
Division 2 – Notification of proposed acquisition: short form
Division 2 sets out the requirements for the short notification form.
Explanatory notes are included to remind the notifying party that they must give the Commission enough information to determine whether the acquisition may be put into effect or must not be put into effect. A notifying party should consider consulting with the Commission before making a notification. This is to discuss the scope and range of information and documents needed in the context of the particular proposed acquisition to which the notification relates. Guidance material about whether the short form or long form is likely to be appropriate for the notification of the acquisition, as well as further guidance on answering the questions in the forms, is also available on the Commission website.
All references to a ‘party to the acquisition’ in this Division are references to each notifying party of the acquisition, the target of the acquisition, and each connected entity of the notifying party and target unless the contrary intention is stated.
Item 1 – Parties to the acquisition
Item 1 of Division 2 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.
ABN has the meaning given by the A New Tax System (Australian Business Number) Act 1999.
ACN has the meaning given by the Corporations Act 2001.
Items 2 to 4 – Details of acquisition
Item 2 of Division 2 requires the notifying party to provide a non-confidential summary of the acquisition, which may be published on the acquisitions register.
Item 2(b) should be answered by providing relevant ANZSIC codes. Notifying parties may also answer item 2(d) by providing relevant ANZSIC codes.
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 Forms Determination was registered, this document was freely available on the Australian Bureau of Statistics’ website (http://www.abs.gov.au).
ANZSIC is used as a standard means of classifying business units into industry sectors. The notifying party can search the ANZSIC by keyword on the ABS website to find ANZSIC codes 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 notifying party should classify units to the lowest level of detail of the classification in addressing item 2(b) and may provide all relevant ANZSIC codes of the main industries in the which the parties to the acquisition supply the goods and services in addressing item 2(d).
Item 3 of Division 2 requires the notifying party to provide further details in relation to the acquisition. These include the commercial rationale for the acquisition and, if applicable, the transaction value calculated for the purposes of the transaction value test.
Item 4 of Division 2 requires details of the Australian revenue for each of three 12-month financial reporting periods before the day the notification is made for each party to the acquisition.
Item 5 – Past relevant acquisitions
Item 5 of Division 2 requires each notifying party to list any acquisitions put into effect by the parties during the three 12-month financial reporting periods prior to the notification being made, subject to some exclusions.
It should be noted that acquisitions that are exempt from the notification requirements under Subdivision B of Division 2 of Part IVA of the CCA (provisions relating to particular kinds of acquisitions that do not result in control or involve the acquisition of shares in the capital of Chapter 6 entities) should not be listed. Acquisitions that do not meet the circumstances in Division 1 of Part 2 of the Determination should also not be listed. For example, if the acquisition of the share or asset was not connected with Australia, the acquisition should not be listed. Acquisitions in the ordinary course of business are also not required to be listed under this question as they are not an ‘acquisition’ under the CCA (specifically, under paragraph 4(4)(b) and section 51ABN of the CCA).
Items 6 and 7 – Competitive effects of acquisition
Item 6 of Division 2 requires certain information in relation to each relevant good or service supplied or potentially supplied by the parties to the acquisition.
Note 1 to the item clarifies when a good or service is a relevant good or service in relation to an acquisition. It is ‘relevant’ if the parties to the acquisition supply, or potentially supply, goods or services that are the same as, or are substitutable for, the good or service in the same or a similar geographical area. It is also ‘relevant’ if the parties supply the good or service at different levels in the supply chain for that good or service. It is also ‘relevant’ if the parties supply other goods or services that are not in the same market or in the same supply chain as the good or service but are related in some other way to that good or service.
Note 2 of the item clarifies that in determining the relevant market definition or definitions, parties should choose the definition or definitions that are most appropriate for the good or service. Parties are to have regard to the definition or definitions where the acquisition is likely to result in the largest market share or largest increment in market share based on certain factors. These factors include the revenue, volume, or capacities of the parties.
Note 3 to the item clarifies that if the acquisition is an acquisition of vacant land – the relevant market definitions should have regard to the acquirer’s potential use of the land.
Item 7 of Division 2 requires, for each of the three 12-month financial reporting periods prior to the date the notification is made, estimated market shares for each of the parties to the acquisition, and other key suppliers.
The intention of these two items is to seek information from the parties to better allow the Commission to assess the competitive effects of the acquisition.
Item 8 – Competitor and customer contacts
Item 8 of Division 2 requires contact details for certain competitors and customers of each party to the acquisition for each relevant good or service supplied.
Item 9 – Additional information
Item 9 of Division 2 requires parties to identify the subparagraph of paragraph 51ABX(1)(d) of the CCA which applies to the notification of the proposed acquisition. It also requires information about goodwill protection provisions in the contract pursuant to which the acquisition would take place, whether the notifying party intends to request confidential review of a surprise hostile takeover, and a copy of the certificate of transfer if the acquisition (or part thereof) is a voluntary transfer of business within the meaning of the Financial Sector (Transfer and Restructure) Act 1999.
Items 10 to 12 – Documents required
Item 10 of Division 2 requires final or most recent versions of all transaction documents. Examples include the sale and purchase agreement, heads of agreement, offer documents, and any other agreements between the parties related to the acquisition.
Item 11 of Division 2 requires the most recent audited financial reports and income statements relating to the supply of relevant goods or services be provided for each party to the acquisition.
Item 12 of Division 2 requires an organisation chart or diagram showing the structure of ownership and control of the parties to the acquisition, both before and after the acquisition. This must also show related bodies corporate involved in the supply of the relevant goods or services.
Item 13 – Declaration
Item 13 of Division 2 requires an authorised person of each notifying party to declare that, to the best of their knowledge and belief, the information provided is true, correct and complete. They must all declare that complete copies of documents required by the form have been supplied, that all estimates are the best estimates based on the underlying facts, and that all opinions expressed are genuinely held.
Division 3 – Notification of proposed acquisition: long form
Division 3 sets out the requirements for the long notification form.
Explanatory notes are included to remind the notifying party that they must give the Commission enough information to determine whether the acquisition may be put into effect or must not be put into effect. A notifying party should consider consulting with the Commission before making a notification. This is to discuss the scope and range of information and documents needed in the context of the particular proposed acquisition to which the notification relates. Guidance material about whether the short form or long form is likely to be appropriate for the notification of the acquisition, as well as further guidance on answering the questions in the forms, is also available on the Commission website.
All references to a ‘party to the acquisition’ in this Division are references to each notifying party of the acquisition, the target of the acquisition, and each connected entity of the notifying party and target unless the contrary intention is stated.
Item 1 – Parties to the acquisition
Item 1 of Division 3 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 to 5 – Details of acquisition
Item 2 of Division 3 requires the notifying party to provide a non-confidential summary of the acquisition, which may be published on the acquisitions register.
Item 2(b) should be answered by providing relevant ANZSIC codes. Notifying parties may also answer item 2(d) by providing relevant ANZSIC codes.
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 Forms Determination was registered, this document was freely available on the Australian Bureau of Statistics’ website (http://www.abs.gov.au).
ANZSIC is used as a standard means of classifying business units into industry sectors. The notifying party can search the ANZSIC by keyword on the ABS website to find ANZSIC codes 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 notifying party should classify units to the lowest level of detail of the classification in addressing item 2(b) and may provide all relevant ANZSIC codes of the main industries in the which the parties to the acquisition supply the goods and services in addressing item 2(d).
Item 3 of Division 3 requires the notifying party to provide further details in relation to the acquisition, such as the commercial rationale for the acquisition and, if applicable, the transaction value calculated for the purposes of the transaction value test.
Item 4 of Division 3 requires the notifying party to describe any existing or proposed commercial relationships between the parties to the acquisition that relate to the supply of relevant goods and services.
The note to the item clarifies when a good or service is a relevant good or service in relation to an acquisition. It is ‘relevant’ if the parties to the acquisition supply, or potentially supply, goods or services that are the same as, or are substitutable for, the good or service in the same or a similar geographical area. It is also ‘relevant’ if the parties supply the good or service at different levels in the supply chain for that good or service. It is also ‘relevant’ if the parties supply other goods or services that are not in the same market or in the same supply chain as the good or service but are related in some other way to that good or service.
Item 5 of Division 3 requires details of the Australian revenue for each of three 12-month financial reporting periods before the day the notification is made for each party to the acquisition.
Item 6 – Past relevant acquisitions
Item 6 of Division 3 requires each notifying party to list any acquisitions put into effect by the parties during the three 12-month financial reporting periods prior to the notification being made, subject to some exclusions.
It should be noted that acquisitions that are exempt from the notification requirements under Subdivision B of Division 2 of Part IVA of the CCA (provisions relating to particular kinds of acquisitions that do not result in control or involve the acquisition of shares in the capital of Chapter 6 entities) should not be listed. Acquisitions that do not meet the circumstances in Division 1 of Part 2 of the Determination should also not be listed. For example, if the acquisition of the share or asset was not connected with Australia, the acquisition should not be listed. Acquisitions in the ordinary course of business are also not required to be listed under this question as they are not an ‘acquisition’ under the CCA (specifically, under paragraph 4(4)(b) and section 51ABN of the CCA).
Items 7 and 8 – Competitive effects of acquisition
Item 7 of Division 3 requires certain information in relation to each relevant good or service supplied or potentially supplied by the parties to the acquisition.
Note 1 to the item clarifies that in determining the relevant market definition or definitions, parties should choose the definition or definitions that are most appropriate for the good or service. In doing this, parties must have regard to the definition or definitions where the acquisition is likely to result in the largest market share or largest increment in market share based on the revenue, volume or capacities of the parties.
Note 2 to the item clarifies that if the acquisition is an acquisition of vacant land – the relevant market definitions should have regard to the acquirer’s potential use of the land.
Item 8 of Division 3 requires, for each of the three 12-month financial reporting periods prior to the date the notification is made, estimated market shares for each party to the acquisition and other key suppliers.
Items 9 to 11 – Barriers to entry
Item 9 of Division 3 requires the notifying party to identify suppliers, if and where material, who have started to supply relevant products or services during the three 12‑month financial reporting periods prior to the date this notification is made, and any such supplier expected to enter the market in the near future.
The note to the item clarifies that a supplier in a market is material if they hold a material share or role in the relevant market. Typically, this will include suppliers with a market share of 5 per cent or more.
Item 10 of Division 3 requires the notifying party to identify suppliers, if and where material, who have stopped supplying relevant products or services during the three 12‑month financial reporting periods prior to the date the notification is made.
Item 11 of Division 3 requires the notifying party to describe factors influencing entry into the market for the supply of the relevant goods or services.
If the notifying party submits that there are low barriers to entry in relation to the relevant products or services, they should provide information and evidence supporting these statements.
Items 12 – Data
Item 12 of Division 3 requires the notifying party to identify any third-party datasets or reports used by the parties to the acquisition to estimate or analyse a party’s own and competitors’ market shares in the supply of the relevant goods or services. Examples include materials produced by industry bodies, research organisations, government or non-government organisations (public or otherwise).
Item 13 – Competitor and customer contacts
Item 13 of Division 3 requires contact details for certain competitors and customers of each party to the acquisition for each relevant good or service supplied.
Items 14 and 15 – Additional information
Item 14 of Division 3 requires parties to identify the subparagraph of paragraph 51ABX(1)(d) of the CCA which applies to the notification of the proposed acquisition. It also requires information about goodwill protection provisions in the contract pursuant to which the acquisition would take place, whether the notifying party intends to request confidential review of a surprise hostile takeover, and a copy of the certificate of transfer if the acquisition (or part thereof) is a voluntary transfer of business within the meaning of the Financial Sector (Transfer and Restructure) Act 1999.
Item 15 of Division 3 requires the notifying party to provide any other information or documents that they consider to be relevant to, or may assist, the Commission’s assessment of the acquisition.
Items 16 to 21 – Documents required
Item 16 of Division 3 requires final or most recent versions of all transaction documents. Examples include the sale and purchase agreement, heads of agreement, offer documents, and any other agreements between the parties related to the acquisition.
Item 17 of Division 3 requires the most recent audited financial reports and income statements relating to the supply of relevant goods or services be provided for each party to the acquisition.
Item 18 of Division 3 requires an organisation chart or diagram showing the structure of ownership and control of the parties to the acquisition, both before and after the acquisition. This must also show related bodies corporate involved in the supply of the relevant goods or services.
Item 19 of Division 3 requires certain documents relating to the proposed acquisition in the possession, power or control of each of the parties that were prepared by or for, or received by, the Board or Board Committee (or equivalent body) or the shareholders’ meeting of the party within the 2 years prior to the date the notification is made. It should be noted that material dealing with a subject matter unrelated to the acquisition which has been separately considered by the Board or Board Committee need not be produced.
Item 20 of Division 3 requires certain documents (including, but not limited to, reports, presentations, studies, internal analyses, industry/market reports or analysis, including customer research and pricing studies) in the possession, power or control of each of the parties that were prepared, received or published within the 2 years prior to the date the notification is made.
Item 21 of Division 3 requires the notifying party to identify the documents provided in response to items 16 to 20 of Division 3 that the parties consider to most comprehensively support the responses given in this notification.
Items 22 to 24 – Appendices
Item 22 of Division 3 requires additional questions to be answered if the acquisition is a horizontal acquisition. A note to the item clarifies that an acquisition is a horizontal acquisition if the parties to the acquisition are suppliers or buyers, or potential suppliers or buyers, of the same or similar goods or services in a market.
Item 23 of Division 3 requires additional questions to be answered if the acquisition is a vertical acquisition. A note to the item clarifies that an acquisition is a vertical acquisition if the parties to the acquisition engage, or potentially engage, in activities in relation to goods or services at different functional levels (upstream or downstream) of the same vertical supply chain. For example, a manufacturer of a product, such as a processor of raw milk, and a retail or wholesale distributor of the processed product operate on the same vertical supply chain for that product. An electricity generator and an electricity retailer operate on the same vertical supply chain for electricity.
Item 24 of Division 3 requires additional questions to be answered if the acquisition is a conglomerate acquisition. Notes to the item clarify that an acquisition is a conglomerate acquisition if the parties to the acquisition are actual or potential suppliers or buyers of adjacent goods or services. A good or service is adjacent if they are not in the same market or in the same supply chain, but are related in another way. For example, goods targeting similar customers or that may be purchased or supplied together.
Item 25 – Declaration
Item 25 of Division 3 requires an authorised person of each notifying party to complete a declaration.
Appendix A – Horizontal acquisitions
A1 of Appendix A to Division 3 requires a description of how competition works for each relevant good or service where the parties overlap.
Appendix B – Vertical acquisitions
B1 of Appendix B to Division 3 requires information and evidence on whether the merged entity would have the ability and incentive to engage in input or customer foreclosure post-acquisition.
B2 of Appendix B to Division 3 requires details including components of gross profit margins and average upstream and average downstream prices for a relevant fiscal period.
Appendix C – Conglomerate acquisitions
C1 of Appendix C to Division 3 requires information and evidence on whether the merged entity would be in a position post-acquisition to foreclose competitors.
Division 4 – Application for public benefit determination: form
Division 4 sets out the requirements for the public benefit application.
All references to a ‘party to the acquisition’ in this Division are references to each notifying party of the acquisition, the target of the acquisition, and each connected entity of the notifying party and target unless the contrary intention is stated.
Item 1 – Parties to the acquisition
Item 1 of Division 4 requires that information about each party to the acquisition, such as party name, identifying number if applicable (for example, ABN, ACN or international equivalent) and contact details, be provided.
Item 2 – Summary of public benefits and detriments
Item 2 of Division 4 requires the notifying party to provide a non-confidential summary of the public benefits and detriments likely to result from the acquisition.
Items 3 to 4 – Public benefits
Item 3 of Division 4 requires the notifying party to identify any public benefits that it considers would be likely to result from the acquisition.
Item 4 of Division 4 requires the notifying party to provide further details to support the public benefits identified in response to item 3. These details include information and evidence (for example data, if available). Item 4 lists the matters which the information and evidence should relate to.
Item 5 – Public detriments
Item 5 of Division 4 requires the notifying party to identify any public detriments, other than harm to competition, that would be likely to result from the acquisition. Identifiable public detriments are only those known, or reasonably ascertainable, by the notifying party. Additionally, item 5 requires the notifying party to provide with the identification of public detriments a description of their scale including estimates (if available).
Item 6 – Weighing public benefits and detriments
Item 6 of Division 4 requires the notifying party to provide detailed reasons explaining why the acquisition would be likely to result in a benefit to the public that outweighs the likely result of a detriment to the public. These detailed reasons are to be provided in consideration of all the circumstances.
Item 7 – Contact details for interested parties
Item 7 of Division 4 requires the notifying party to provide contact details for any known, or reasonably ascertainable, persons and class of persons (for example, a representative body). These persons are those additional to the parties already identified in the notification. These persons are only those that are likely to be impacted by or may have an interest in commenting on the public benefits and detriments that would be likely to result from the acquisition. Details are to include, to the extent possible, a specific contact person, full details, and a direct telephone number. An example of this would be John Smith (john.smith@xyz.com, not info@xyz.com) and John Smith’s direct telephone number (not a general contact number).
Items 8 and 9 – Additional information and documents required
Item 8 of Division 4 requires the notifying party to provide any other information or documents relevant to the Commission’s consideration of the public benefit application. The additional information or documents that must be provided are those that the notifying party considers to be relevant to, or may assist, the Commission’s consideration of the application.
Item 9(a) of Division 4 requires the notifying party provide to the Commission all transaction documents not previously provided. These must be the final or most recent versions of the documents. The documents could include sale and purchase agreements, heads of agreement, and any other agreements between the parties related to the acquisition. The term ‘any other agreements’ includes supply or other ancillary agreement that are conditional on the acquisition.
Item 9(b) of Division 4 requires the notifying party also provide to the Commission any updated versions of any such transaction documents previously supplied to the Commission.
Item 10 – Declaration
Item 10 of Division 4 requires an authorised person of each notifying party of the acquisition to complete a declaration.
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—Forms) 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—Forms) Determination 2025 (the Forms Determination) is a legislative instrument made under the Competition and Consumer Act 2010 (the CCA). The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (the Mergers Act) introduced a new merger control system in the CCA. This new system requires certain acquisitions of shares or assets to be notified to the Australian Competition and Consumer Commission (the Commission) for assessment prior to completion.
Part 6 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (the Determination) supported the new system by determining the notification and public benefit application forms and the information and documents required to accompany such forms. The Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No. 1) Determination 2025 repeals Part 6 of the Determination. The purpose of the Forms Determination is to remake Part 6 of the Determination in similar terms.
Human rights implications
The Forms 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).
Right to Privacy
The Forms 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 notifying a proposed acquisition or making a public benefit 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 system to determine whether acquisitions would, or be likely to, substantially lessen competition in Australian markets.
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 Forms Determination is lawful, necessary, and proportionate, and is therefore consistent with Article 17 of the ICCPR.
Conclusion
The Forms 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.