Clifford Chance

Will the Harper-proposed merger authorisation reforms be the 'authorisation' of a less effective merger control regime?

18 August 2016

The Government is expected to shortly release exposure draft legislation implementing the Harper Review reforms which it supports. One of the key areas of reform will be in relation to the Australian antitrust merger control regime. The Government agrees with the Harper Review's recommendation to merge the currently separate merger authorisation and formal merger review processes, and vest the Australian Competition and Consumer Commission (ACCC) with first instance decision making powers. 

However, could there be an unintended and concerning consequence of this change – namely, the removal of an effective and, perhaps, the only practical, alternative review mechanism and constraint on the ACCC's decision making powers in the informal merger review process?

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