Engage early with the Australian Competition & Consumer Commission (ACCC). The earlier the engagement, the more opportunities the parties to a merger or acquisition have to address issues before these become blockers to the proposed transaction. The ACCC has recently criticised lawyers for not properly identifying competition issues so that these may be addressed early in a transaction.
Be comprehensive in the information that is provided to the ACCC, whether under the informal merger review process or the merger authorisation process. Providing comprehensive information will limit delays in the ACCC’s processes.
In the case of transactions involving an offshore counterpart, remember that approval may also be required under the Foreign Acquisitions and Takeovers Act (FATA); and that in assessing national interest under FATA, the Australian Treasurer will also consider the competition issues arising from a transaction.
Data matters. If you have a transaction which involves the transfer of significant amounts of data (whether personal information or otherwise), consider whether it will cause concerns for the ACCC from a competition perspective or, if the transaction requires approval under FATA, also from a national security perspective.