Australia: A Competition/Antitrust Overview

Australian competition and consumer law is undergoing a period of intense and dynamic change, affecting merger clearance, enforcement risks and consumer protection.

Australia’s New Merger Regime is Mandatory as of 1 January 2026

In 2024–25, Australia undertook the most significant rewrite of its merger laws in 50 years. From 1 January 2026, the new framework is mandatory for all deals that satisfy notification thresholds, following a six-month period when it operated on a voluntary basis alongside the previous informal process.

The move to the new framework has significant implications, including:

• the revenue and transaction value thresholds are low, including for global deals with even a relatively limited connection to Australia, and apply to a very wide range of transactions beyond standard M&A;
• the risks of non-notification are severe, with transactions being automatically treated as void (though this may be narrowed by legislative change in 2026);
• substantial filing fees apply;
• merger parties must now build into their timelines the mandatory clearance timeframes required for the Australian Competition and Consumer Commission (ACCC) process;
• the process is public with a public register of all notified transactions (and waivers); and
• there are significant changes in review rights, with a shift from a judicial enforcement model to the ACCC as administrative decision-maker, subject to limited merits review in the Australian Competition Tribunal.

The new rules will expand the number of deals caught and the level of work and cost required for clearing most transactions, including Australian aspects of global deals. The process itself will involve a different and new model of engagement with the ACCC, including a more automated process with greater upfront demands for data and evidence.

Many aspects of the new regime were still being refined even in the last weeks of 2025, and further changes are expected in 2026 ahead of a scheduled review of the notification thresholds after 12 months, and a more comprehensive statutory review after three years.

Increasing Public Merger Reviews Under the Old Framework

Before the new merger regime commenced, complex deals were already attracting heightened scrutiny. In 2024–25, the ACCC conducted a decade-high number of Phase I public reviews, though far fewer progressed to Phase II – showing that increased scrutiny did not necessarily mean longer processes or negative outcomes. Of 11 Phase II matters, none were opposed; two were withdrawn, four cleared, and five cleared with remedies.

The ACCC is also widening its focus beyond traditional unilateral, co-ordinated and vertical concerns to issues such as data access, nascent and potential competition, ecosystems and multi-sided markets. These emerging theories of harm, informed by market inquiries and investigations, could feature more prominently in future merger assessments.

The ACCC Still Prefers Structural Remedies, But Will Consider Behavioural Solutions When Appropriate

In 2024–25, the ACCC cleared six mergers on the basis of divestiture remedies, one on the basis of a quasi-structural remedy with some behavioural aspects (in Sigma/Chemist Warehouse), and one with a more extensive and longer-term behavioural undertaking (in Qube/MIRRAT).

In practice, merger parties need to work hard to convince the ACCC that a deal should be cleared based on behavioural remedies. Indeed, the ACCC’s Interim Process Guidelines for the new merger framework state that the ACCC “generally has a strong preference for structural remedies” but note that it will test all remedies on their likely effectiveness, including issues of administrability, monitoring and compliance costs.

In practice, the new merger process also creates a more time-compressed and rigid framework for negotiating remedies, especially in complex transactions; so parties are advised to deal with these issues early in pre-notification discussions where possible, to increase the prospect of the ACCC accepting a remedy proposal.

Consumer Protection Enforcement Remains a Priority

Australia has a combined competition and consumer regulatory regime, with the ACCC responsible for enforcement of both antitrust and consumer protection law.

Court enforcement by the ACCC in the last 12 months remained steady as compared to 2024. The ACCC commenced three competition law actions last year, one of which was commenced by consent. This reflects a continued downward trend in the number of competition enforcement litigations in recent years, despite the fact that cartel conduct and anti-competitive conduct remain enduring priorities for the ACCC.

Consumer protection enforcement again dominated the ACCC’s activity, with ten actions commenced in the past year. The ongoing cost-of-living crisis and the protection of vulnerable consumers have shaped the ACCC’s case selection, driving a focus on widespread consumer harms, including pricing conduct and misleading marketing. Matters frequently involved priority areas such as digital consumer issues, environmental claims, product safety for young children and consumer guarantees, particularly for high-value goods.

Penalties continued to rise in 2025. Optus agreed to a AUD100 million penalty (plus consumer remediation) for unconscionable conduct towards First Nations Australians, while BlueScope received a AUD57.5 million penalty for attempted price-fixing in the largest civil cartel penalty ever imposed in Australia.

Private Litigation Filling Void Left by Lack of ACCC Action

Australia’s unilateral market power prohibition was reframed in 2017 to introduce an “effects test” and remove other perceived limitations on enforcement, in a move widely seen to lower the threshold for prosecution. However, this has not corresponded to an increase in cases commenced by the ACCC under Section 46 of the Competition and Consumer Act 2010; the ACCC has brought only two cases since 2017, the most recent case commenced in May 2022.

Private litigation has continued to fill the void left by the lack of ACCC unilateral market power enforcement. Four cases have been brought by private litigants under Section 46 in 2025, including a further class action against Google in relation to its ad tech services (Riverine Grazier v Google), litigation against Australia’s largest home improvement retailer (Woodman Beenleigh v Bunnings), and litigation commenced by Employment Hero against SEEK Limited. A range of other dominance cases have been settled or discontinued, raising the question of whether private litigation is being used as a tool to effect commercial negotiations.

The highest profile development in 2025 was the Federal Court of Australia’s decisions in the Epic cases, involving Epic’s claims against Apple and Google, as well as follow-on class actions (with conduct that largely reflected similar cases brought by Epic in the United States and raised with regulators in the EU). The Federal Court found Google and Apple engaged in a misuse of market power in breach of Section 46 by restricting the use of alternative app distribution methods and in-app payment methods on Apple or Android mobile devices. Similar findings were made in the two class actions.

The next phase of the Epic saga will be the determination of remedies, in the first half of 2026. This will force Australian courts to wrestle for the first time with a number of complex questions involving the approach to damages and pricing in dominance cases. This will present an important precedent for a string of other Section 46 cases involving pricing that remain before the courts.

Significant Reforms Expected in 2026

We expect to see a number of areas of law reform in 2026.

• The Australian government has indicated its intention to introduce an unfair trading practices prohibition in 2026, which will include a general prohibition on practices that manipulate consumer decision-making and cause harm. The prohibition will be directed at conduct such as subscription traps, hidden fees, dark patterns and dynamic or drip pricing practices. The combination of a new “unfairness” test with Australia’s existing and broad provisions governing both misleading or deceptive conduct, unconscionable conduct and unfair contracts, means that we will have one of the broadest general consumer protection standards globally.
• Consultation has also been completed on a ban on non-compete clauses and separate stand-alone prohibitions for no-poach and wage-fixing agreements. Currently, most employment-related agreements are exempted from Australia’s cartel laws. The government is considering its response, and we can expect to see draft legislation in 2026.

What Does It All Mean for 2026?

We face a period of fast-moving and disruptive change in Australia, with new merger laws and potentially significant expansions of other areas of our competition and consumer laws.

All of this is occurring against the backdrop of the ACCC continuing to play a significant role across swathes of the economy and with a more complex litigation environment featuring growth in private enforcement under the unilateral power prohibition, activist litigation and class actions.