Following updates made on 13 September 2025, applications to the Foreign Investment Review Board (FIRB), for foreign investment approval will now require parties to indicate whether their transaction will be notified to the Australian Competition and Consumer Commission (ACCC), and if not, to provide substantial detail about the competitive impact of the transaction. This requirement is consistent with an evolving interplay between FIRB and the ACCC and demonstrates the importance of foreign investors having early and well-informed views of potential competition risks associated with transactions in Australia.

Overview of ACCC and FIRB interaction

Although Australia's foreign investment framework is independent of the merger control regime administered by the ACCC, both require competition to be taken into consideration.

Applications under the foreign investment framework will now require parties to advise whether the transaction has been or will be notified to the ACCC.

For transactions involving foreign investors that are required to be notified to the ACCC (or where parties choose to voluntarily notify the ACCC of a transaction that is below the notification thresholds), a decision by the ACCC on a merger notification or a successful notification waiver application is required to satisfy the competition aspect of the assessment under the foreign investment framework.

Where transactions involving foreign investors are not required to be notified to the ACCC, FIRB may nevertheless refer such transactions to the ACCC for a competition assessment under the foreign investment framework.

Businesses retain the discretion to determine which application to submit first (i.e. whether to notify the transaction to the ACCC and then submit a foreign investment application or do this simultaneously).

Update to (competition) information requirements under FIRB framework

On 13 September 2025, FIRB updated its information requirements for foreign investors seeking approval for transactions via the online Foreign Investment Portal with respect to competition considerations and merger filings to the ACCC.

Transactions that give rise to a mandatory ACCC notification obligation

Aside from providing information relating to the effects on competition (which has been the case for some time), filing parties will now also need to provide the relevant ACCC matter ID number and/or decision letter from the ACCC. When parties intend to file with the ACCC but have not yet done so, they need to indicate in the portal when they intend to notify the ACCC of the transaction and once that occurs, provide FIRB with the ACCC matter ID number.

Transactions that do not give rise to a mandatory ACCC notification obligation

Even if a transaction does not give rise to a mandatory ACCC filing obligation, it will remain subject to the general prohibition against mergers and acquisitions that have the effect or likely effect of substantially lessening competition under section 50 of the Competition and Consumer Act 2010 (Cth).

The biggest change to FIRB's information requirements relate to transactions that do not give rise to a mandatory ACCC notification obligation and for which the filing parties do not intend to make a voluntary notification. In such cases, the information requirements regarding competition considerations that are requested as part of the FIRB process will require the provision of considerably more detail than has previously been the case.

Filing parties will now need to address the following questions as part of the FIRB application process:

1. Do the investor(s) (or any related entities) compete directly or indirectly with the target, or operate upstream or downstream in any of the proposed target’s supply chains?
2. For each relevant product or service (i.e. where the parties to the transaction overlap, have a vertical relationship or supply adjacent products or services) supplied or potentially supplied by the investors/parties to the transaction:
   a. describe the product or service and the geographic areas in Australia where it is supplied, and
   b. identify other key suppliers in Australia in the geographic areas identified above.
3. Outline the likely effect of the proposed action(s) on competition (such as market shares).
4. For each party (acquirer and target) to the transaction (including any connected entities carrying on business in Australia), provide the total Australian revenue for the past three 12-month financial reporting periods (in AUD$), detailing the months covered for each 12-month period (using this spreadsheet).

This information will be provided to the ACCC by FIRB to enable the ACCC to provide a competition assessment of the transaction, which is required as part of the FIRB process and a pre-requisite for FIRB approval.

For transactions that fall below the notification thresholds, Treasury has encouraged filing parties to provide sufficient information on the likely competition effects of these transactions in any FIRB applications to minimise the risk of delay.

Responding to the newly added questions will invariably require filing parties to consider technical competition law concepts, such as market definition, and to provide an assessment of competition in respect of any overlapping horizontal and vertical activities undertaken by the filing parties in Australia, including the provision of market share data.

Due to the potential implications of these questions and their bearing on the overall competition law risk profile of a transaction, filing parties should exercise care in the preparation of their responses, particularly in respect of transactions occurring as part of bolt on strategies or those in more sensitive sectors that typically attract more scrutiny from the ACCC.

There will be no impact on submissions which were lodged via the portal before 13 September 2025.

Continued interaction between FIRB and the ACCC

As has been the case, FIRB will continue to retain the ability to refer transactions to the ACCC for assessment if not already notified. The difference is that FIRB applications will now need to include more detailed information regarding competition matters.

The importance of considered and well-thought through responses in respect of competition matters cannot be understated due to the ACCC's newly acquired ability to impose conditions that may go beyond traditional enforceable undertakings on merger approvals under the new mandatory regime.

Treasury and the ACCC continue to develop the framework for interaction between Australia's foreign investment regime and the ACCC's new mandatory merger regime.

The takeaway: foreign investors need to ensure that they have early and well-informed views of any potential competition risks before approaching FIRB or the ACCC.