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Recent Changes to the Australian Merger Control Regime - How the Changes Have Operated in Practice

Dave Poddar
[2009] UNSWLawJl 17; (2009) 32(1) University of New South Wales Law Journal 275

 

Introduction to article

'On 1 January 2007, significant changes to the Australian merger control regime were introduced. The substantive merger test under section 50 of the Trade Practices Act 1974 (Cth) (‘TPA’) and the voluntary nature of the regime remained unchanged. However, the procedural options for notifying and assessing mergers were increased, with parties now having three routes for seeking merger approval:

(a) informal (non-statutory) clearance from the Australian Competition and Consumer Commission (‘ACCC’);

(b) formal clearance from the ACCC under section 95AC of the TPA; or

(c) authorisation from the Australian Competition Tribunal (‘Tribunal’) under section 95AT of the TPA.

As the new merger control regime has been operating for over two years, sufficient time has now passed to be able to provide a degree of meaningful commentary on it. Accordingly, this paper will:

(a) outline the key features of the new merger notification regime;

(b) examine how it has operated in practice; and

(c) explore how proposed changes to merger legislation relating to ‘creeping acquisitions’ may impact the merger control regime.

The issues in this paper are primarily approached from a practitioner’s perspective, with a focus on the practical manner in which the new merger review regime has worked.'

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