The Albanese government has released draft legislation of its proposed reforms to Australia’s merger laws.
First announced in April, the sweeping reforms would introduce a prohibition on merger transactions proceeding without first receiving a determination from the Australian Competition and Consumer Commission (ACCC).
In a statement on Wednesday, Treasurer Jim Chalmers explained the draft legislation sets out the legal framework for the new system which will commence from 1 January 2026, subject to its passage through Parliament.
“Our laws will simplify and speed up the process for mergers that are in the national interest and give the regulator stronger powers to identify and scrutinise transactions that pose a risk to competition, consumers and the economy,” he said.
“These changes will make it easier for the majority of mergers to be approved quickly, so the ACCC can focus on the minority that give rise to competition concerns.”
He added the draft legislation delivers necessary reforms to empower the consumer watchdog to help protect Australian consumers from anti‑competitive mergers.
“Improving competition will mean higher quality choices for consumers and fairer prices and will boost innovation, productivity and dynamism in our economy,” Chalmers said.
Submissions on the draft legislation are open until 13 August 2024.
The ACCC welcomed the start of the consultation, noting the reforms are crucial in achieving a simplified merger control framework that prevents harmful anti-competitive transactions.
“We welcome the opportunity the government has provided for consultation with the wider community to ensure these reforms achieve their intended policy objectives,” ACCC chair Gina Cass-Gottlieb said.
“Simplification is one of the key aims the Treasurer highlighted in designing the new merger reform. We are keen to ensure the new framework does not add complexity.”
She observed, in addition, that the government has advised it will consult separately on the notification thresholds that will decide which mergers need to be notified to the ACCC.
“We note having the right thresholds for proposed mergers to be reviewed by the ACCC will be key to the effectiveness of the proposed new regime and its ability to achieve the government’s policy objectives of preventing mergers that pose a risk to competition, consumers and the economy,” Cass-Gottlieb said.
“The new merger regime needs to strike the right balance between ensuring that potentially anti-competitive mergers are scrutinised and where necessary, prevented, while minimising regulatory burden for acquisitions that do not have anti-competitive effects.”
Previously, the consumer watchdog highlighted research by the Treasury’s competition taskforce that an estimated 1,000–1,500 mergers occur in Australia each year. However, only about 330 are notified to the ACCC under the existing voluntary merger regime.
For Cass-Gottlieb, it remains vital that the new merger regime “addresses the deficiencies of current merger laws in allowing too many mergers to escape the competition regulator’s scrutiny”.
With the draft legislation, the government also announced the appointment of Andrea Gomes da Silva as an independent expert adviser.
In the role, Gomes da Silva will advise Treasury and the ACCC on implementing the new merger control system effectively, including advice on ACCC capabilities, practice, systems and resourcing, and delivering the government’s reforms through a risk‑based approach to merger review.
She has previously served on the Competition and Markets Authority (CMA) in the UK for over six years and brings extensive experience as a competition lawyer.
“Ms Gomes da Silva’s expertise and independent views will provide valuable insights on important policy design and implementation issues relating to the reforms,” Cass-Gottlieb said.
“Ms Gomes da Silva’s advice will assist Australia transition to the new merger control regime, in line with international best practice.”
“We look forward to drawing on Ms Gomes da Silva’s international perspective and her experiences, including during her leadership role at the UK competition regulator during a time of complex and significant change.”
Furthermore, she confirmed the ACCC will renew and expand its Performance Consultative Committee to advise on the ACCC’s merger review functions as well as the broad range of the ACCC’s responsibilities.
The committee consists of numerous stakeholders, including legal, business, and consumer representatives.
“The committee will provide feedback on ACCC initiatives and a forum for exchange of perspectives on key issues,” Cass-Gottlieb said.
Membership of the committee is yet to be announced.
