With foreign investment scrutiny intensifying, merger clearance becoming more complex, and enforcement actions on the rise, Australia’s regulators are leaving no deal untouched.
2025 has sent the strongest signals yet that regulatory sign-off isn’t just a box-tick exercise, it can make or break a deal, or at the very least delay it. The Foreign Investment Review Board (FIRB) is asking more questions. The Australian Competition and Consumer Commission (ACCC) is leaning into competition theory with renewed vigour. The Australian Securities and Investment Commission (ASIC) is cracking down on disclosure standards and market conduct. And the Takeovers Panel? It’s weighing in more frequently, and not always predictably.
For anyone navigating M&A in Australia, the question isn’t just “can we get the deal done?” It’s “who needs to say yes, how long will they take and what will they ask?”
Below, we comment on the key trends and flashpoints from each of the major regulators shaping M&A in 2025.
Foreign investment under the microscope
Foreign investment remains a political and strategic issue, especially in sectors like critical minerals, energy, infrastructure and data heavy sectors. While FIRB has long been active in these areas, we’re now seeing:
- Longer review periods, even for seemingly straightforward deals;
- Heightened national interest scrutiny, including on lower-value deals that would previously have flown under the radar; and
- Increased use of conditions, especially around data access, governance, and local management control.
Foreign investors need to engage early and show a credible local presence. Budget time and cost for a detailed FIRB strategy and prepare counterparties for it early. Consider drafting conditions end dates with automatic extensions linked to FIRB requests for extension.
Competitive theories meet deal realities
The ACCC’s stance on mergers is tougher and more transparent than ever. It has:
- Published a revised merger guideline that gives it more discretion to oppose deals; and
- Adopted a less quantitative, more theoretical approach to market power and entrenchment;
- Prepared for a mandatory merger control regime to commence 1 January 2026.
Don’t underestimate vertical or conglomerate effects. Clearance is no longer a sure thing, and risk allocation in transaction documents needs to reflect this. If your deal is potentially going to settle after 1 January 2026, you may need to apply for approval from 1 July 2025 to ensure no unexpected delays. This applies even if you signed in 2025.
Disclosure, conduct and clean hands
ASIC’s attention is firmly on:
- Improper use of confidential information during deals (particularly where directors have conflicts);
- Market disclosure in the lead-up to significant transactions; and
- Misleading or deficient bidder and target statements.
Its recent civil enforcement activity shows that ASIC is no longer just issuing warnings, it’s litigating.
Timing matters – announcing without disclosing all material information can trigger regulatory scrutiny from both ASIC and the ASX.
Takeovers Panel: Back in the spotlight
The Panel is seeing a resurgence, with several recent decisions reshaping expectations around:
- Control transactions dressed up as capital raisings;
- Creeping acquisitions via underwriting; and
- Truth in takeovers, especially where bidders or major shareholders change tack post-announcement.
While the Panel remains a commercial forum, it’s increasingly focused on market integrity, fairness and proper information. Procedural missteps, even technical ones, are more likely to attract scrutiny.
If you’re pushing the envelope on control or influence, be prepared to front the Panel. Procedural fairness, transparency and genuine engagement are key.
Know the signals before you deal
Regulators are no longer just gatekeepers, they’re active participants in how deals are shaped, timed, and disclosed. For dealmakers, this means:
- Regulatory strategy is deal strategy;
- Transaction documents must allocate risk clearly around approvals, timing and investigations; and
- Early engagement (both internally and with regulators) can be the difference between deal or no deal.
Next steps
Our team of specialised mergers and acquisitions lawyers offer assistance for all corporate transactions. We provide support in commencing a sale and legal advice on all aspects of regulatory approval requirements and advise on a range of legal solutions.
If you are considering an acquisition, please get in touch with us so we can discuss a regulatory strategy, bespoke to you and your deal.
