The introduction of the Treasury Laws Amendment (Strengthening Accountability for Tax Adviser Misconduct and Other Measures) Bill 2026 (Bill) earlier this month signals Parliament’s intention to address some of the core issues raised by market participants during the first six months of the new merger regime’s operation.

The Bill proposes to amend the much discussed ‘automatic voiding’ mechanism as well as clarifying the circumstances in which parties will be treated as associates for the purposes of joint control and introducing the ability to seek an extension of existing approvals from the ACCC to put an acquisition into effect.

These changes are intended to provide greater clarity and certainty for the business community and their advisors.

Voidable rather than void

Currently, if there is no applicable exemption and an acquisition satisfies one or more of the financial thresholds, that acquisition is automatically deemed ‘void’ if it is put into effect without first obtaining ACCC approval.

Stakeholders expressed concern that the automatic voiding mechanism could create commercial uncertainty, particularly for third parties that had relied on the fact that the transaction had been completed.

Where the above circumstances apply, amendments introduced by the Bill will mean that the transaction is not automatically deemed to be void but rather voidable and potentially subject to court declaration that it is void on application from the ACCC. Importantly the amendment is limited to notifiable acquisitions that have not been notified and put into effect. Automatic voiding will continue to apply where:

• the acquisition has been notified but has not been finally considered; and
• the ACCC has determined that the notified acquisition must not be put into effect and the ACCC has not subsequently determined that the acquisition is of net public benefit; and the acquisition has been notified, and the most recent notification is stale.

The amendments allow for the ACCC to make an application to the Federal Court (Court) within a six-year period, seeking a declaration that an acquisition that should have been notified but was not, is void and is taken to have always been void. In determining such an application, the Court is not required to assess the substantive competition merits of the acquisition. Rather, it may only consider whether making a declaration that an acquisition is void would be ‘undesirable to do so’ in the circumstances, including where it would cause significant harm to third parties or be impracticable to unwind the acquisition.

The Court may also, on the application of the ACCC, make such other orders it considers desirable to deal with a non-notified acquisition (including divestiture of shares or assets, and orders relating to the transfer of title to assets and amendments to registers of title).

The Bill also amends existing provisions such that any party can apply with leave of the Court for orders to deal with the consequences of automatic voiding outside of the six-year limitation period. This provides flexibility to address issues arising from a void acquisition that may only become apparent years later, while preserving the six-year limitation period as the default position.

The ACCC may seek interlocutory and final injunctions while investigating a transaction or pursuing a voiding application. Standing to seek such a declaration is limited to the ACCC.

The reforms to the automatic deemed provision will only affect acquisitions completed after the Bill comes into effect (that is, it does not have retrospective operation).

The reforms should not however, be viewed as a relaxation of the notification requirements. While non-notified acquisitions will no longer be automatically void, they remain ‘stayed’ and, if put into effect, could attract significant penalties. This is intended to incentivise parties to acquisitions to comply with their obligations under the mandatory and suspensory merger control regime by notifying their acquisition if required to do so.

A possible extension for delays

The Bill introduces a practical mechanism designed to address a likely challenge in merger transactions: approvals that risk becoming stale because certain delays have resulted in the transaction not being put into effect within the statutory 12-month period from approval.

The proposed amendments will allow notifying parties to apply to the ACCC for an extension of the period within which an approved acquisition may be put into effect by up to six months where there are reasonable delays. The mechanism will be available to acquisitions approved in the 12 months preceding the commencement of the amendments.

The Bill does not propose a statutory limit on the number of extensions that may be granted.

In determining whether an extension is appropriate, the ACCC may consider a range of factors, including whether there are reasonable explanations for the delay, whether market conditions have materially changed since the approval was granted, and whether the circumstances warrant a fresh notification.

The introduction of an extension mechanism may reduce regulatory burden, time and costs by avoiding the need for transaction parties to restart the formal notification process where, for example, completion is delayed due to factors outside their control.

Clarifying where parties have joint control

Subject to certain minority interest acquisitions, an exemption to the notification requirement under the new merger regime applies where the acquisition does not result in a change in control.

Under the existing regime, concerns arose that parties could be treated as exercising joint control merely because they satisfied the broad statutory definition of an associate. In some circumstances, this created the prospect of an acquisition being characterised as conferring joint control despite the acquirer holding only a minority interest.

The Bill will bring the definition of control within the Competition and Consumer Act and also narrow the meaning of ‘associate’ for the purpose of an acquisition to situations where a person, together with one or more associates ‘jointly’ have the practical capacity to determine the outcome of decisions relating to the target entity’s financial and operating policies. The Bill also introduces express exceptions that would not, by themselves, result in a person being an ‘associated’:

• minority shareholder protection rights;
• dividend-policy agreements;
• arm’s-length financing agreements;
• arm’s-length standard shareholder or member agreements about governance processes;
• rights to dispose of securities; and
• professional advisory relationships, financial product dealings, takeover bid offers, and proxy/representative appointments.

In doing so, the amendments seek to ensure that acquisitions are not inadvertently captured where they are unlikely to confer competitively significant influence over the target, including where parties enter into ordinary minority shareholder arrangements that do not provide the capacity for practical influence or joint control.

Even where the revised joint control test means a transaction is not notifiable, separate voting power thresholds may still trigger a notification obligation.

What is next?

Subject to the Bill passing Parliament and receiving Royal Assent, the amendments are expected to commence on 1 October 2026. We will continue to monitor the Bill’s progress and provide updates on any further developments as the reforms move through Parliament.

This article was written by Simon Ellis, Partner, and Kate Crawford, Law Graduate.