Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (137 of 2024)

Schedule 1   Acquisitions

Part 2   Amendments commencing 1 July 2025

Division 1   Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

44   After section 81A

Insert:

81B Divestiture etc. if acquisition determinations made on false etc. information or conditions not complied with

(1) This section applies in relation to a notification of an acquisition if the Federal Court is satisfied that:

(a) as part of putting the acquisition into effect, a notifying party of the notification, or a related body corporate, acquired a thing (including a share in the capital of a body corporate, any assets of a person or a thing determined under paragraph 51ABB(2)(a)); and

(b) the Commission made an acquisition determination in respect of the notification; and

(c) apart from the determination, putting the acquisition into effect would have contravened Subdivision B of Division 1A of Part IV; and

(d) subsection (2) or (3) applies.

(2) This subsection applies if:

(a) the Commission made the determination on the basis of information that was false or misleading in a material particular; and

(b) the information was material to the Commission making the acquisition determination; and

(c) the information was given by:

(i) the notifying party of the notification; or

(ii) a related body corporate; and

(d) the Court or another court has found that the person who gave the information contravened section 45AZB of this Act or Part 7.4 of the Criminal Code by giving that information.

(3) This subsection applies if:

(a) putting the acquisition into effect is subject to a condition; and

(b) the condition is not complied with.

Divestiture

(4) The Federal Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of anything acquired as mentioned in paragraph (1)(a).

Declaration that acquisition void

(5) The Federal Court may, on the application of the Commission, by order, declare that the acquisition mentioned in paragraph (1)(a) is void as from the day on which it occurred.

(6) However, the Court may make an order under subsection (5) only if, in addition to the Court being satisfied of the matters in subsection (1), the Court, or another court, has found that the person (the vendor ) from whom the thing was acquired was involved in:

(a) the contravention mentioned in paragraph (2)(d); or

(b) the non-compliance mentioned in paragraph (3)(b).

(7) If the Court makes an order under subsection (5) in relation to the acquisition of a thing, then:

(a) the thing is taken not to have been disposed of by the vendor; and

(b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the thing.

Alternative to orders under subsections (4) and (5)

(8) If an application is made to the Court for an order under subsection (4) or (5) against a person, the Court may, instead of making an order of the kind mentioned in that subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of any other thing owned by the person.

When application for orders under this section must be made

(9) An application under subsection (4) or (5) may be made at any time within 3 years after the day on which the acquisition was put into effect.

Court may make orders even if not satisfied of all matters

(10) If an application for an order under subsection (4) or (5) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of:

(a) for an order under subsection (4) - the matters in subsection (1); and

(b) for an order under subsection (5) - the matters in subsections (1) and (6).