Australia has a mandatory notification regime both for acquisitions of Australian land, entities and assets by foreign persons and for acquisitions and mergers that are of a size that may have adverse effects on competition in Australia. Both notification regimes are subject to certain monetary thresholds.
Understanding whether Foreign Investment Review Board (FIRB) approval, Australian Competition and Consumer Commission (ACCC) clearance, or both are required is an important consideration when structuring and timing an acquisition in Australia.
When is FIRB approval required in Australia?
The Australian Foreign Acquisitions and Takeovers Act 1975 regulates foreign acquisition of Australian land, entities and assets. The Federal Treasury and the Australian Taxation Office administer the regime and are advised by the Foreign Investment Review Board (FIRB).
Prior to foreign persons acquiring Australian land, securities in entities, or assets above certain monetary thresholds, they are required to receive no-objection notifications from Treasury. This is colloquially referred to as “FIRB approval”.
The monetary thresholds are based on the type of asset being acquired and its significance to national security or the national interest. Thresholds also differ based on the origin of the investor due to certain Free Trade Agreements.
Investors that are foreign governments or have foreign government involvement require FIRB approval for all acquisitions, regardless of monetary value.
Which Australian assets are most restricted for foreign investors?
The most restricted assets in Australia are residential land assets. There is currently a general prohibition on acquisitions of established dwellings in Australia by foreign investors, with very limited exceptions. Most applications for established residential assets in Australia will be rejected.
Other sensitive assets include:
national security land;
national security businesses;
media businesses;
mining tenements; and
undeveloped commercial land.
These each generally carry a $0 monetary threshold, meaning actions in these areas may require FIRB approval regardless of the value of the proposed acquisition.
“National security” in this context typically means that the acquisition involves defence or defence-related products or services, as well as critical infrastructure.
Applying for FIRB approval
Applications are made through the Foreign Investment Portal and can be made by an investor directly or by an adviser.
Application fees are dependent on the value of the acquisition. For example, acquisitions of AUD$50 million or less attract an AUD$15,600 fee and acquisitions of AUD$100 million or less attract an AUD$31,300 fee, unless the acquisition is of agricultural or residential land, which have higher fees relative to acquisition value.
FIRB approvals typically take between four and six weeks. However, the timeframe for approval depends on a number of factors, including the nature of the investor, the asset being acquired and whether the proposed transaction raises national interest or national security considerations.
What happens if a foreign investor does not comply with FIRB requirements?
Non-compliance with Australia’s foreign investment regime can attract significant penalties, including monetary fines and forced divestment. More serious contraventions may also carry terms of imprisonment as a maximum penalty.
When is ACCC merger clearance required in Australia?
Competition law in Australia is administered by the Australian Competition and Consumer Commission (ACCC).
Under the Australian Competition and Consumer Act 2010 (Act), acquisitions are prohibited where they would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
Prior to 1 January 2026, transaction parties could voluntarily notify a transaction to the ACCC and obtain either in-principle advice, on a non-binding basis, that their transaction would not breach the Act, or a merger authorisation that authorised the transaction and provided immunity from prosecution under the relevant provisions of the Act.
Since 1 January 2026, a new mandatory notification regime has applied. Transacting parties are now required to notify a transaction to the ACCC where certain monetary thresholds are met.
The ACCC reviews the transaction and its likely effects on markets in Australia and may approve the proposed transaction, with or without conditions, or reject it.
The ACCC merger notification thresholds
The most common monetary threshold is where the merger parties have combined Australian revenue of at least AUD$200 million and either:
the target’s Australian revenue is at least AUD$50 million; or
the global transaction value is at least AUD$250 million.
There are additional thresholds applying to acquisitions by very large entities of smaller targets, as well as separate cumulative thresholds for creeping or serial acquisitions.
Accordingly, parties considering an Australian acquisition should assess the ACCC notification requirements early in the transaction process rather than relying solely on the size of the immediate acquisition.
What happens after an acquisition is notified to the ACCC?
If a transaction is required to be notified to the ACCC, the review generally takes place in two parts.
Phase 1 ACCC review
Phase 1 includes publication of details of the notification on the acquisitions register and a 15-business-day period for third parties to comment on the proposed acquisition.
Phase 1 reviews typically take approximately six weeks in total.
Phase 2 ACCC review
If, during Phase 1, the ACCC considers that the acquisition could be likely to substantially lessen competition, it may require a Phase 2 assessment.
Phase 2 involves a more in-depth assessment of the acquisition by the ACCC. It is intended that only a relatively small number of matters will require a Phase 2 assessment.
A Phase 2 assessment can take up to an additional 12 weeks.
The application fee for a Phase 1 notification is AUD$56,800.
If a Phase 2 assessment is required, the fee ranges from AUD$475,000 for transactions valued at AUD$50 million or less.
Parties may also apply for a notification waiver.
A waiver provides a streamlined application process aimed at acquisitions that do not raise material risks to competition or consumers. Notification waiver applications cost AUD$8,300.
The timeframe for granting a notification waiver is typically 25 business days, or approximately five weeks.
All transactions notified to the ACCC, including waiver applications, are included in a public register.
How the new Australian merger regime operates in practice
While the mandatory merger notification regime has not been in place for long, many transactions have been successfully dealt with through waiver applications and the large majority of transactions notified to the ACCC have only required a Phase 1 assessment.
This highlights the importance of considering the potential competition implications of a proposed transaction at an early stage so the appropriate notification pathway can be incorporated into transaction planning.
What if an acquisition falls below the ACCC notification thresholds?
Transactions that fall below the mandatory notification thresholds are still subject to the provisions of the Act prohibiting acquisitions that would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
Parties to a transaction that falls below the mandatory thresholds can therefore still voluntarily notify their acquisition to the ACCC for clearance where competition concerns may arise.
Penalties for breaching Australian competition laws
Non-compliance with Australian competition laws can attract significant consequences, including monetary penalties and forced divestment. More serious contraventions may carry terms of imprisonment as a maximum penalty.
Do you need FIRB approval, ACCC clearance or both?
FIRB and ACCC requirements address different regulatory considerations and can both apply to the same transaction.
Foreign investors and parties to mergers or acquisitions involving Australian businesses or assets should therefore consider both regimes at an early stage of the transaction. FIRB and ACCC approval requirements can have a material impact on transaction structure, conditions precedent, regulatory risk and the timing of completion.
For advice on the FIRB and ACCC implications of a proposed acquisition, merger or investment in Australia, please contact Brett Cowell, Director, or Thomas Hill, Senior Associate, in Cowell Clarke’s Corporate Team. Our team can assist with assessing notification requirements, transaction structuring and navigating the relevant regulatory approval processes.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.