The government has said at the highest levels that Australia’s merger control regime needs to change, but to what? In November 2023 the government’s Competition Review Taskforce released a consultation paper canvassing three options for Australia’s merger control process, one of which is a wholesale reform put forward by the ACCC.
The current regime, where merger parties can seek the ACCC’s informal view, seek a formal merger authorisation or a declaration from the Federal Court, has resulted in some less-than-ideal outcomes recently for the regulator.
In the ACCC’s blue sky proposal, the existing regime would be thrown out and entities subject to a mandatory, suspensory clearance regime, with the ACCC the decision maker (subject to review by the Competition Tribunal).
The Property Council is greatly concerned by the ACCC’s proposed reform package, having made its submission to the government in early 2024.
Our submission focused on the impacts to competition, productivity, distortion of the market and the bid process and increased regulatory costs and administration burden of the ACCC’s proposal.
We outlined, using the ACCC’s own data, 98-99 per cent of mergers are not contentious and are not opposed, the proposed new regime would create a new presumption that all mergers are considered damaging to competition and the economy until proven otherwise – reversing the onus of proof.
The Property Council is closely monitoring any developments, and will be engaging with government to make our case.
Following this review, if the Government chooses to reform the merger control process, then it must engage with the Property Council and industry immediately to ensure an appropriate notification waiver process is central to the development and implementation of a new regime.