PE deals in the spotlight - Five things you need to know about navigating the new ACCC merger regime

From 1 January 2026, it will be mandatory for private equity firms with Australian revenue that exceeds $200 million to notify the Australian Competition and Consumer Commission (ACCC) of any acquisition involving a target with Australian revenue of $50 million or more, or where the global transaction value exceeds $250 million. For PE firms with Australian revenue exceeding $500 million, deals will be notifiable if the target has as little as $10 million in Australian revenue.

Now is the time to get prepared for the new regime, and we discuss below the five actions that should be top of your to do list.

1. Plan your ACCC engagement strategy for any deal that will not complete by 31 December 2025

Although the mandatory filing requirement does not commence until 1 January 2026, it is possible to take steps now to avoid potential delays for transactions signed this year but completing in 2026 by:

• obtaining informal merger clearance under the current ACCC regime (noting that the ACCC has indicated that if an application is submitted after early October 2025, there may not be sufficient time to obtain clearance under the informal regime); or
• voluntarily submitting a filing under the new mandatory regime, which is an option that has been available since 1 July 2025.

Either approach will give the parties 12 months to complete the deal from the date that ACCC clearance is obtained without having to re-notify under the new regime. In addition to those deals currently being negotiated, make sure you also consider any that have already signed but may not complete by 31 December 2025.

2. Pay attention to roll-up acquisitions

A key driver behind the merger reforms was ACCC concern that companies (including PE players) were engaging in multiple roll-up or "serial" acquisitions to consolidate a number of smaller businesses in a particular sector, and were not seeking prior merger clearance for these deals.

The new regime addresses this by including additional filing thresholds that require a firm with Australian revenue exceeding $200 million to notify the acquisition of a business with revenue below $50 million if, in the last three years, it has also acquired other businesses that supply the same or substitutable goods or services in Australia, and the revenue of all the businesses exceeds $50 million (or as little as $10 million if the acquirer's Australian revenue exceeds $500 million). Only very small targets with revenue of less than $2 million are exempt from the calculation of the accumulated revenue.

Given the breadth of these thresholds, it is important to ensure you maintain detailed records of all acquisitions involving targets with any Australian revenue, including what that revenue is, the date of the acquisition and the sector(s) in which the business operates in Australia. This will also apply to deals completed prior to 1 January 2026.

3. Consider notification strategy for competitive bid processes

Historically it has been possible for bidders to secure ACCC merger clearance on a confidential pre-assessment basis in parallel with progressing diligence and the negotiation of transaction documents, which permitted a "clean" bid in a competitive sale process. That will not be an option under the new regime, which requires the parties to have entered into transaction documents prior to notification (or at least to have a clear intention to do so). The new regime will also involve notified transactions being recorded on a public register, which would often not be desirable in a competitive process. It should, however, be possible to commence pre-notification engagement with the ACCC ahead of binding bids, so acquirers should give consideration to the best way to satisfy vendors of their clearance prospects through this process.

For vendors, this may have implications for transaction timing, decisions around exclusivity and risk assessment of bidders. In some instances, it may be appropriate to consider whether the protection of a reverse break-fee is needed in the event that ACCC clearance is not ultimately obtained, given the loss of competitive tension through the public nature of the review.

4. Plan for higher costs

All notifiable transactions will now attract ACCC filing fees, starting at $56,800 for a "Phase 1" notification, but with an additional fee payable for those deals that go to "Phase 2", ranging from $475,000 (for transactions valued at $50 million or less), $855,000 (for transactions valued between $50 million and $1 billion) and $1,595,000 (for transactions valued at more than $1 billion).

For "no issue" deals with no overlaps between the target and the PE firm's existing portfolio companies, the filing fees represent an additional transaction cost. There will also be higher legal fees associated with completing the mandatory notification forms and providing greater volumes of documents and market share data to the ACCC upfront than has previously been the case.

For those deals where the ACCC is more likely to identify a potential competition concern, the significance of the Phase 2 fees means that there will be substantial value in early engagement with the ACCC through the pre-notification process to anticipate potential concerns and seek to address them upfront rather than waiting for third parties to raise complaints during the Phase 1 review, which is only 30 business days and does not provide much time to resolve issues ahead of Phase 2.

5. Take care with non-competes and pre-integration planning

The new regime puts a spotlight on the use of non-competes and other restraints intended to protect the goodwill being acquired in the deal. The ACCC will have the power to determine that a particular restraint provision is not entitled to the protection of the "goodwill exception" to cartel conduct under the Australian Competition and Consumer Act. Acquirers should only seek those restraints that they genuinely require and will need to be prepared to justify those during the merger review.

Further, parties risk heavy penalties if they put into effect a notifiable acquisition without ACCC approval. While awaiting ACCC clearance, "gun-jumping" risks will need to continue to be managed when engaging in integration planning activities where it is possible that the buyer might otherwise obtain effective control of the target prior to completion. In particular, consider what guidance needs to be provided to executives involved in integration discussions and Day 1 readiness. It is expected that the ACCC will enforce these prohibitions vigorously to ensure that parties comply with the new law.