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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

35 After Part IV

Insert:

Part IVA - Notification of acquisitions

Division 1 - Preliminary

Subdivision A - Simplified outline

51ABA Simplified outline of this Part

Certain acquisitions, including acquisitions of shares in the capital of a body corporate or of any assets of a person, are required to be notified to the Commission before they are put into effect if they are determined under Division 2.

Division 3 provides for persons to notify proposed acquisitions to the Commission (including acquisitions that are not required to be notified).

The Commission may determine that a notified acquisition may be put into effect if the Commission is satisfied it would not substantially lessen competition (Division 4).

If the Commission does not make such a determination, the notifying parties may ask the Commission to determine that the proposed acquisition would be of public benefit (Division 5).

Note: For the consequences of failing to notify the Commission of an acquisition, or for putting into effect an acquisition that the Commission has neither determined may be put into effect nor determined would be of public benefit, see Division 1A of Part IV.

Subdivision B - Acquisitions to which acquisitions provisions apply

51ABB Acquisitions to which acquisitions provisions apply

(1) Subject to section 51ABD, the acquisitions provisions apply to the following acquisitions:

(a) an acquisition by a corporation of shares in the capital of a body corporate;

(b) an acquisition by a corporation of any assets of a person;

(d) an acquisition of shares in the capital of a corporation;

(e) an acquisition of any assets of a corporation;

(f) an acquisition of anything, relating to a corporation, determined under paragraph (2)(a).

(2) The Minister may, by legislative instrument, determine:

(a) a thing for the purposes of paragraphs (1)(c) and (f); or

(b) a person or entity, in relation to an acquisition to which paragraph (1)(c) or (f) of this section applies, for the purposes of paragraph 51ABI(3)(c).

51ABC Acquisition of units in unit trusts and interests in managed investment schemes

(1) The acquisitions provisions apply to the acquisition of units in a unit trust:

(a) as if:

(i) the trust were a body corporate; and

(ii) units in the trust were shares in the capital of the body corporate; and

(b) with such other modifications as are determined under paragraph (3)(a) for the purposes of this paragraph in relation to the trust.

Note: For when a reference to a corporation includes a reference to the unit trust, see paragraph 51ABZZK(2)(c) or (3)(c).

(2) The acquisitions provisions apply to the acquisition of an interest in a managed investment scheme (within the meaning of the Corporations Act 2001):

(a) as if:

(i) the scheme were a body corporate; and

(ii) interests in the scheme were shares in the capital of the body corporate; and

(b) as if the body corporate were a corporation if the following person is a corporation:

(i) if the scheme is a registered scheme (within the meaning of that Act) - the scheme's responsible entity (within the meaning of that Act);

(ii) if the scheme is not a registered scheme - the holder of the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and

(c) with such other modifications as are determined under paragraph (3)(b) for the purposes of this paragraph in relation to the scheme.

(3) The Minister may, by legislative instrument, determine:

(a) modifications of the acquisitions provisions for the purposes of paragraph (1)(b) in relation to a unit trust; or

(b) modifications of the acquisitions provisions for the purposes of paragraph (2)(c) in relation to a managed investment scheme.

51ABD Internal restructures and reorganisations

(1) The acquisitions provisions do not apply to an acquisition that is, or is part of, a restructure or reorganisation of a group of persons who are related:

(a) in the ways referred to in section 4A (related bodies corporate); or

(b) by means of trust or partnership.

(2) Paragraph (1)(a) applies as if:

(a) the Commonwealth, a State or a Territory were a body corporate; and

(b) each authority of the Commonwealth, a State or a Territory were a subsidiary of the Commonwealth, the State or the Territory.

(3) However, for the purposes of paragraph (1)(a), subsection (2) does not affect when an authority of the Commonwealth, a State or a Territory is related to another authority of the Commonwealth, the State or the Territory.

Subdivision C - Definitions relating to acquisitions and notifications

51ABE When acquisitions are stayed

(1) An acquisition to which any of the following subsections applies is stayed .

(2) This subsection applies to an acquisition that:

(a) is required to be notified; but

(b) is not a notified acquisition.

Note: For when an acquisition is required to be notified , see Division 2.

(3) This subsection applies to a notified acquisition if the most recent notification of the acquisition has not been finally considered.

Note: For when a notification has been finally considered , see section 51ABF.

(4) This subsection applies to a notified acquisition if:

(a) the most recent determination under subsection 51ABZE(1) in respect of a notification of the acquisition is a determination that the acquisition must not be put into effect; and

(b) since making that determination, the Commission has not made a determination under paragraph 51ABZW(1)(a) in respect of the notification.

(5) This subsection applies to a notified acquisition if the most recent notification of the acquisition is stale.

Note: For when a notification is stale , see section 51ABG.

51ABF When notifications have been finally considered

(1) A notification of an acquisition has been finally considered if:

(a) the Commission has made a determination under subsection 51ABZE(1) in respect of the notification; and

(b) the determination made under subsection 51ABZE(1) is no longer subject to review; and

(c) if the determination made under subsection 51ABZE(1) includes conditions, or is a determination that the acquisition must not be put into effect:

(i) in the case of a determination that includes conditions - a public benefit application in relation to the notification has not been made; or

(ii) in the case of a determination that the acquisition must not be put into effect - a public benefit application in relation to the notification has not been made, and the period during which such an application could be made has ended; or

(iii) in any case - a public benefit application in relation to the notification has been made, and the Commission has decided under section 51ABZV to cease considering the application; or

(iv) in any case - a public benefit application in relation to the notification has been made, the Commission has made a determination under subsection 51ABZW(1) in respect of the application, and the determination made under subsection 51ABZW(1) is no longer subject to review.

Note: A notification has not been finally considered if:

(a) it does not have an effective notification date; or

(b) the Commission has decided to cease considering the notification under section 51ABZD.

(2) An acquisition determination is no longer subject to review if:

(a) both:

(i) an application has not been made under subsection 100C(1) for review of the determination; and

(ii) the period during which such an application could be made has ended; or

(b) an application has been made under subsection 100C(1) for review of the determination, and:

(i) the application has been withdrawn under subsection 100E(1) and the period during which a participant may apply for reinstatement of the application under subsection 100E(2) has ended without an application for reinstatement being made; or

(ii) the Tribunal has dismissed the application; or

(iii) the Tribunal has made a determination on the review under paragraph 100N(1)(a).

51ABG When notifications become stale

A notification of an acquisition becomes stale 12 months after the time (if any) at which the Commission:

(a) unless paragraph (b) of this section applies - makes a determination under paragraph 51ABZE(1)(a) in respect of the notification; or

(b) if the Commission makes a determination under paragraph 51ABZW(1)(a) in respect of a public benefit application that relates to the notification - makes that determination.

51ABH When notified acquisitions are subject to conditions

Putting a notified acquisition into effect is subject to a condition if:

(a) both:

(i) the most recent determination in respect of a notification of the acquisition under subsection 51ABZE(1) includes that condition; and

(ii) since making that determination, the Commission has not made a determination under paragraph 51ABZW(1)(a) in respect of the notification; or

(b) both:

(i) the most recent determination in respect of a notification of the acquisition under subsection 51ABZW(1) includes that condition; and

(ii) since making that determination, the Commission has not made a determination under subsection 51ABZE(1) in respect of a notification of the acquisition.

51ABI Parties to acquisitions

(1) Each of the following is a party to an acquisition of shares in the capital of a body corporate, any assets of a person or a thing determined under subsection 51ABB(2):

(a) the person (a principal party to the acquisition) who acquires the shares, assets or determined thing;

(b) without limiting paragraph (a) - a person that is a party to a contract, arrangement or understanding pursuant to which the acquisition takes place.

(2) To avoid doubt, a reference to a party or principal party to an acquisition that has not been put into effect is a reference to a person that would be a party or principal party to the acquisition if the acquisition were put into effect.

(3) The target :

(a) of an acquisition of shares in the capital of a body corporate - is the body corporate; and

(b) of an acquisition of any assets of a person - is the person; and

(c) of an acquisition to which subparagraph 51ABB(1)(c) or (f) applies - is the person or entity determined under paragraph 51ABB(2)(b) for the purposes of this paragraph in relation to the acquisition.

Subdivision D - Other definitions

51ABJ Meaning of Chapter 6 entity

(1) A Chapter 6 entity is:

(a) a listed company (within the meaning of the Corporations Act 2001); or

(b) an unlisted company with more than 50 members (within the meaning of that Act); or

(2) In determining whether a company has more than 50 members for the purposes of paragraph (1)(b), count joint holders of a particular parcel of shares as 1 person.

(3) A reference in sections 603, 604 and 605A of the Corporations Act 2001 to Chapter 6 of that Act is taken to include a reference to:

(a) subsections (1) and (2) of this section; and

(b) Subdivision B of Division 2 of this Part; and

51ABK Meaning of business day

For the purposes of this Part, a business day is a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(d) a day occurring between:

(i) 23 December in any year; and

(ii) the following 10 January.

Subdivision E - Other provisions

51ABL Conditional contracts, arrangements and understandings

For the purposes of the acquisitions provisions, if:

(a) a person enters into a contract, arrangement or understanding pursuant to which the person will acquire:

(i) shares in the capital of a body corporate; or

(ii) any assets of another person; or

(iii) a thing determined under paragraph 51ABB(2)(a); and

(b) the provisions of the contract, arrangement or understanding pursuant to which the acquisition is to take place do not become binding on the person until one or more conditions are met;

the person does not acquire shares, assets or a determined thing under the provisions unless and until the provisions become binding.

51ABM Changes in joint ownership

(1) This section applies to joint holders of a particular parcel of shares in the capital of a body corporate.

(2) For the purposes of the acquisitions provisions, one of those persons is taken to acquire those shares if the person begins to hold the shares alone.

51ABN Acquisition of assets

(1) The acquisitions provisions apply in relation to any of the following that is not an asset in the same way as they apply in relation to an asset:

(a) any kind of property;

(b) a legal or equitable right that is not property;

(i) part of, or an interest in, an asset referred to in paragraph (a) or (b); or

(ii) goodwill or an interest in it; or

(iii) an interest in an asset of a partnership; or

(iv) an interest in a partnership that is not covered by subparagraph (iii).

(2) For the purposes of the acquisitions provisions, the reference in paragraph 4(4)(b) to an acquisition of an asset in the ordinary course of business is taken not to apply if the asset is:

(a) land, or an interest in land; or

(b) a patent, or an interest in a patent.

Division 2 - Acquisitions that are required to be notified

Subdivision A - Acquisitions that are required to be notified

51ABO When acquisitions are required to be notified

Subject to Subdivisions B and C, an acquisition is required to be notified if it:

(a) occurs in circumstances determined under subsection 51ABP(1) for the purposes of this paragraph in relation to the acquisition; or

(b) is in a class of acquisitions determined under subsection 51ABQ(1) for the purposes of this paragraph.

Note 1: An acquisition is required to be notified only if it is an acquisition to which this Division applies. For the acquisitions to which this Division applies, see Subdivision B of Division 1.

Note 2: See also subsection 51ABS(5).

51ABP Notification thresholds

(1) The Minister may, by legislative instrument, determine circumstances for the purposes of paragraph 51ABO(a) in relation to an acquisition.

(2) The circumstances must be determined wholly or partly by reference to the acquisition meeting a specified threshold.

(3) Without limiting subsection (2) of this section, the specified threshold may be a threshold relating to:

(a) the value of an acquisition or of a contract, arrangement or understanding; or

(b) the turnover of a person, a business or part of a business; or

(d) any assets of a person.

(4) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition .

51ABQ Classes of acquisitions

(1) The Minister may, by legislative instrument, determine a class of acquisitions for the purposes of paragraph 51ABO(b).

(2) Without limiting subsection (1) of this section, the Minister may determine a class of acquisitions under that subsection wholly or partly by reference to:

(a) a party, or a class of parties, to an acquisition or to a contract, arrangement or understanding; or

(b) an asset or a class of assets; or

(d) a market or a class of markets; or

(e) an industry or a class of industries; or

(f) another acquisition, or a class of acquisitions.

(3) In making an instrument under subsection (1), the Minister must consider all of the following:

(a) the likely effect of making the instrument on:

(i) the interests of consumers; and

(ii) promoting competition; and

(iii) the public interest;

(b) the likely regulatory impact of requiring the class of acquisitions to which the determination relates to be notified;

(4) In making an instrument under subsection (1) of this section, the Minister may consider any reports or advice of the Commission (including any reports given under subparagraph 51ABR(2)(a)(ii)).

Note: For consultation requirements, see section 17 of the Legislation Act 2003.

(5) An instrument made under subsection (1) must not be expressed to commence earlier than the 30th day after the instrument is registered under the Legislation Act 2003.

(6) This subsection repeals an instrument made under subsection (1) on the fifth anniversary of the registration of the instrument under the Legislation Act 2003, unless the instrument is repealed earlier.

(7) To avoid doubt, an instrument made under subsection (1) does not affect the meaning of substantially lessening competition .

51ABR Classes of acquisitions - Commission reports

(1) Before making an instrument under subsection 51ABQ(1), the Minister may ask the Commission to analyse the matters in paragraphs 51ABQ(3)(a) to (c) in relation to the instrument.

(2) If the Minister does so:

(a) the Commission must:

(i) analyse the matters; and

(ii) give to the Minister a written report of its analysis; and

(b) the Minister must cause the report to be published on the Department's website; and

(3) This section does not limit:

(a) subsection 51ABQ(4) of this Act; or

(b) section 17 of the Legislation Act 2003 (consultation requirements).

Subdivision B - Provisions relating to particular kinds of acquisitions

51ABS Acquisitions that do not result in control

(1) Subject to subsection (5), an acquisition by a person of shares in the capital of a body corporate is not required to be notified if:

(a) immediately after the acquisition is put into effect, the person does not control (within the meaning of section 50AA of the Corporations Act 2001) the body corporate; or

(b) the person controlled the body corporate immediately before the acquisition was put into effect.

(2) For the purposes of subsection (1) of this section:

(a) despite subsection 50AA(3) of the Corporations Act 2001, the person is taken to control the body corporate if the first person and one or more associates (within the meaning of Chapter 6 of that Act) jointly have the capacity referred to in subsection 50AA(3) of that Act in relation to the body corporate; and

(b) disregard subsection 50AA(4) of that Act if the person is a special purpose vehicle; and

(c) disregard paragraph 50AA(4)(b) of that Act to the extent it applies to a legal obligation the person has as a subsidiary of someone that is a body corporate.

(3) For the purposes of subsection (1) of this section, disregard the effects of a scheme if it would be reasonable to conclude that the purpose of the person, or one of the persons, who enters into or carries out the scheme or any part of the scheme is to enable that subsection to apply to an acquisition.

Note: See section 4F (references to purpose).

(4) For the purposes of subsection (3), a scheme is:

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or

Ministerial determinations

(5) Despite subsection (1), an acquisition of shares in the capital of a body corporate is required to be notified if:

(a) paragraph (1)(a) or (b) applies to the acquisition; and

(b) the acquisition is in a class of acquisitions determined under subsection (6).

(6) For the purposes of paragraph (5)(b), the Minister may, by legislative instrument, determine a class of acquisitions of shares in the capital of bodies corporate.

(7) Without limiting subsection (6), the Minister may determine a class of acquisitions under that subsection wholly or partly by reference to:

(a) the size of an interest in a body corporate; or

(b) the nature of a person's control of a body corporate.

51ABT Acquisitions of shares in the capital of Chapter 6 entities

(1) An acquisition of shares in the capital of a body corporate is not required to be notified if:

(a) the body corporate is a Chapter 6 entity; and

(b) the acquisition does not result in someone's voting power (within the meaning of the Corporations Act 2001) in the body corporate increasing:

(i) from 20% or below to more than 20%; or

(ii) from a starting point that is above 20% and below 100%.

(2) For the purposes of paragraph (1)(b), if:

(a) a person enters into a contract, arrangement or understanding pursuant to which the person will acquire shares in the capital of a Chapter 6 entity; and

(b) the provisions of the contract, arrangement or understanding pursuant to which the acquisition is to take place do not become binding on the person until one or more conditions are met;

then, in working out someone's voting power, treat the person as not acquiring a relevant interest (within the meaning of the Corporations Act 2001) in the shares under the provisions unless and until the provisions become binding.

Subdivision C - Waivers

51ABU Notification waiver applications

(1) A person may apply to the Commission for a determination that an acquisition is not required to be notified.

(2) The application must be made in accordance with any requirements determined under subsection (3).

(3) For the purposes of subsection (2), the Minister may, by legislative instrument, determine requirements for making a notification waiver application.

(4) Without limiting subsection (3), the requirements may include the payment of a fee.

(5) If the application is made in accordance with subsection (2), it is a notification waiver application in relation to the acquisition.

51ABV Waivers

(1) If a notification waiver application in relation to an acquisition is made, the Commission may, in writing, determine:

(a) that the acquisition is not required to be notified; or

(b) not to make the determination applied for.

(2) In making a determination under subsection (1), the Commission must:

(a) comply with any requirements determined under subsection (3); and

(b) subject to paragraph (a) of this subsection, have regard to:

(i) the object of this Act; and

(ii) the interests of consumers; and

(iii) if circumstances are determined under subsection 51ABP(1) - the likelihood that, if the acquisition were put into effect, those circumstances would apply; and

(iv) the likelihood that the acquisition would, if put into effect, have the effect mentioned in paragraph 51ABZE(2)(c).

(3) The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (2)(a) of this section.

(4) Without limiting subsection (3), an instrument made under that subsection may:

(a) determine a requirement that, in specified circumstances, the Commission must not make the determination applied for; or

(b) provide for review by the Tribunal of decisions made under subsection (1).

(5) The Commission must give:

(a) written notice of the determination under subsection (1); and

(b) a written explanation of why it made the determination;

to the applicant.

(6) If the Commission makes a determination under paragraph (1)(a) in respect of the application, the acquisition is not required to be notified .

Division 3 - Notification of acquisitions

Subdivision A - Notification of acquisitions

51ABW Notifications of acquisitions

(1) This section applies if the Commission is notified, in accordance with subsection 51ABX(1), of a proposed acquisition (whether or not the acquisition is required to be notified, and whether or not a previous notification of the acquisition has been made).

Note: For the acquisitions to which this section applies, see Subdivision B of Division 1.

(2) The acquisition is a notified acquisition .

(3) The principal party that makes the notification, or each of the principal parties that jointly make the notification, is a notifying party of the notification.

(4) Subject to paragraph 51ABZ(1)(a), subsection 51ABZA(5) and subparagraph 51ABZB(2)(a)(i), the effective notification date of the notification is the day the notification is made.

(5) The Commission must give the notifying party, or at least one of the notifying parties, written notice:

(a) that the Commission has received the notification; and

(b) of the effective notification date.

51ABX Requirements for notifications

(1) A notification of a proposed acquisition is made in accordance with this subsection if:

(a) the notification is made in writing; and

(b) the notification is accompanied by the fee (if any) determined under subsection (2) for the purposes of this paragraph in relation to the notification; and

(i) if there is only one principal party to the acquisition - the principal party; or

(ii) otherwise - all of the principal parties jointly; and

(d) any of the following subparagraphs apply when the notification is made:

(i) the acquisition is to take place pursuant to a contract, arrangement or understanding that has been entered into;

(ii) the proposed contract, arrangement or understanding pursuant to which the acquisition is to take place has not been entered into, but all of the proposed parties to the contract, arrangement or understanding pursuant intend to enter into it;

(iii) the acquisition is to be a takeover acquisition in relation to a takeover bid and subsection (4) applies;

(iv) the acquisition is to take place pursuant to a proposed arrangement between a Part 5.1 body and its creditors or any class of them, or between a Part 5.1 body and its members or any class of them, under Part 5.1 of the Corporations Act 2001, and the arrangement has been publicly proposed by the Part 5.1 body.

(2) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (1)(b) in relation to the notification.

(3) To avoid doubt, the notification is taken not to be made before the fee (if any) required by paragraph (1)(b) is paid.

(4) For the purposes of subparagraph (1)(d)(iii), this subsection applies if:

(a) the bid has been publicly proposed; or

(b) the bid has been made; or

(i) that the bid will be a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 will apply; and

(ii) to make a request under paragraph 51ABZZL(1)(d) of this Act in relation to the acquisition.

Notifications may cover multiple acquisitions

(5) If a proposal to put an acquisition into effect includes a proposal to put another acquisition into effect:

(a) the proposed acquisitions may be notified in a single notification; and

(b) the acquisitions provisions apply in relation to such a notification as if:

(i) those acquisitions together constituted a single acquisition; and

(ii) each party to those acquisitions were a party to that single acquisition; and

(iii) each principal party to those acquisitions were a principal party to that single acquisition.

Multiple notifying parties

(6) If there is more than one notifying party of a notification of an acquisition:

(a) a reference in this Part (other than this Subdivision) to giving a notice to the notifying party of the notification of the acquisition is taken to be a reference to giving a notice to any of those notifying parties; and

(b) a reference in this Part (other than this Subdivision) to the notifying party of the notification of the acquisition doing a thing (such as giving additional information or documents or making a request or application) is taken to be a reference to all of those notifying parties doing that thing jointly.

Subdivision B - Powers of the Commission in response to incomplete and misleading notifications and changes of fact

51ABY Notifications that are materially incomplete or misleading

(1) The Commission may decide, in writing, that a notification of an acquisition should be taken not to have an effective notification date, if:

(a) the notification is not subject to phase 2 review; and

(b) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and

(2) This subsection applies to the notification if it:

(a) is materially incomplete; or

(b) is materially misleading; or

(3) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (2) applies to the notification.

(4) In considering whether subsection (2) applies to the notification, the Commission may have regard to:

(a) the extent to which the notification is in the form determined under paragraph (5)(a) for the purposes of this paragraph in relation to the notification; or

(b) the extent to which the notification includes, or is accompanied by, any information or document determined under paragraph (5)(b) for the purposes of this paragraph in relation to the notification; or

(c) any additional information or documents given to the Commission as mentioned in section 51ABZA in response to any previous determination under subsection (1) of this section in relation to the notification; or

(d) any change of fact:

(i) of which the Commission becomes aware after the notification is made; and

(ii) that is material to the Commission making a determination under Division 4 in respect of the notification.

(5) The Minister may, in writing, determine:

(a) a form for the purposes of paragraph (4)(a) in relation to the notification; or

(b) information or documents for the purposes of paragraph (4)(b) in relation to the notification.

(6) A determination under subsection (5) may require the notification to specify any goodwill protection provisions of the contract pursuant to which the acquisition would take place.

(7) A determination made under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument.

(8) To avoid doubt, subsection (2) can apply to the notification after the notification is made (for example, because of a change of fact) even if subsection (2) did not apply to the notification when the notification was made.

51ABZ Notifications that are materially incomplete or misleading - consequences of Commission's decisions

(1) If the Commission makes a decision under subsection 51ABY(1) in relation to a notification of an acquisition:

(a) the notification is taken never to have had an effective notification date ; and

(b) the Commission must give to the notifying party of the notification of the acquisition written notice of:

(i) the decision; and

(ii) the grounds on which the Commission is satisfied that subsection 51ABY(2) applies to the notification.

Note: For review of the decision, see section 51ABZZG.

(2) The Commission must not make a determination under subsection 51ABZE(1) in respect of the notification if, because of a decision made under subsection 51ABY(1), the notification does not have an effective notification date.

51ABZA Notifications that are incomplete or misleading - providing additional information and documents

(1) This section applies in relation to a notification of an acquisition if:

(a) because of a decision made under subsection 51ABY(1), the notification does not have an effective notification date; and

(b) the notifying party of the notification gives the Commission additional information or documents in response to the decision.

(2) The additional information or documents are given in accordance with this subsection if:

(a) in the case of information - the information is given in writing; and

(b) the information or documents are accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the information or documents and the notification of the acquisition.

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.

(4) To avoid doubt, the additional information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.

(5) The effective notification date of the notification of the acquisition is the day the additional information or documents are given.

(6) The Commission must give the notifying party written notice of the effective notification date.

51ABZB Material changes of fact

(1) This section applies in relation to a notification of an acquisition if:

(a) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and

(b) the Commission becomes aware of a change of fact.

(2) If the Commission is satisfied that the change of fact is material to the Commission making a determination under subsection 51ABZE(1) in respect of the notification, the Commission may, in writing:

(a) if the notification is not subject to phase 2 review:

(i) decide that the effective notification date of the notification is the date on which the Commission becomes aware of the change of fact; or

(ii) decide that the phase 1 determination period for the notification is extended by the period mentioned in subsection (3); or

(b) if the notification is subject to phase 2 review - decide that the phase 2 determination period for the notification is extended by the period mentioned in subsection (3).

(3) For the purposes of subparagraph (2)(a)(ii) or paragraph (2)(b), the extension is for the period:

(a) starting on the day the Commission makes the decision under that subparagraph or paragraph; and

(b) including:

(i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZC(2); and

(ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with that subsection.

(4) A decision under subsection (2) must be made within a reasonable period after the Commission becomes aware of the change of fact.

(5) If the Commission makes a decision under subsection (2), the Commission must give written notice of the decision to the notifying party of the notification.

Note: For review of the decision, see section 51ABZZG.

(6) If the Commission extends the phase 1 determination period for the notification under subparagraph (2)(a)(ii) of this section, the period mentioned in paragraph 51ABZZE(3)(a) in relation to making a determination under subsection 51ABZE(1) in respect of the notification is extended by the same number of days.

(7) If the Commission extends the phase 2 determination period for the notification under paragraph (2)(b) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:

(a) the 25 business days mentioned in section 51ABZK is increased by the number of days of the extension;

(b) the period mentioned in paragraph 51ABZZE(3)(b) is extended by the same number of days.

51ABZC Material changes of fact - providing additional information and documents

(1) This section applies in relation to a notification of an acquisition if:

(a) the Commission has made a decision under subparagraph 51ABZB(2)(a)(ii) or paragraph 51ABZB(2)(b) in relation to the notification because of a material change of fact; and

(b) the notifying party of the notification gives the Commission information or documents in response to the decision.

(2) The information or documents are given in accordance with this subsection if:

(a) in the case of information - the information is given in writing; and

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.

(4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.

Subdivision C - When Commission may cease considering notifications

51ABZD When Commission may cease considering notifications

(1) This section applies to a notification of an acquisition if the Commission has not made a determination in respect of the notification under subsection 51ABZE(1).

(2) The Commission must decide, in writing, to cease considering the notification if requested to do so, in writing, by the notifying party of the notification.

(3) The Commission may also decide to cease considering the notification if the Commission is satisfied that the parties to the acquisition no longer intend to put the acquisition into effect.

(4) Subsections (2) and (3) do not limit each other.

(5) If the Commission decides under subsection (2) or (3) to cease considering the notification:

(a) the Commission must give written notice of the decision to the notifying party of the notification; and

(b) Subdivision B of this Division, and Division 4, do not apply to the notification.

Note: An effect of the decision is that the acquisition must not be put into effect (see section 45AY, subsection 51ABE(3) and section 51ABF).

(6) To avoid doubt, a decision under subsection (2) or (3) of this section does not have the effect that the acquisition ceases to be a notified acquisition .

Division 4 - Commission consideration of acquisitions: substantial lessening of competition

Subdivision A - Commission consideration of acquisitions

51ABZE Commission consideration of acquisitions

(1) If the Commission is notified of a proposed acquisition in accordance with subsection 51ABX(1), the Commission may, in writing, determine:

(a) that the acquisition may be put into effect; or

(b) that the acquisition must not be put into effect.

Note: The determination may include:

(a) conditions (see section 51ABZF); or

(b) declarations relating to goodwill protection provisions (see section 51ABZG).

(2) The Commission must not determine that the acquisition must not be put into effect unless:

(a) the notification is subject to phase 2 review; and

(b) the Commission has given a notice of competition concerns in relation to the notification in accordance with section 51ABZK; and

(c) the Commission is satisfied that the acquisition, if put into effect, would, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.

(3) In considering whether to determine that the acquisition may be put into effect or must not be put into effect, the Commission must have regard to:

(a) the object of this Act; and

(b) all relevant matters, including the interests of consumers.

(4) The Commission must give:

(a) written notice of the determination under subsection (1); and

(b) a written statement of the Commission's reasons for making the determination;

to the notifying party of the notification of the acquisition.

Note 1: If the Commission determines that the acquisition must not be put into effect, the notifying party may apply to the Commission under Division 5 for a determination that the acquisition would be of public benefit.

Note 2: For review of a determination made under subsection (1), see Division 1B of Part IX.

(5) For the purposes of this Act (other than this Division, Subdivision B of Division 6 and paragraph 51ABZZM(2)(a)), the determination is taken to be made when the Commission includes a copy of it on the acquisitions register.

51ABZF Conditions

(1) A determination made under paragraph 51ABZE(1)(a) in respect of a notification of an acquisition may include conditions.

Example: A condition that a specified person must give an undertaking to the Commission for the purposes of section 87B and comply with the undertaking.

Note: If the determination includes conditions, the notifying party of the notification may apply to the Commission under Division 5 for a determination that the acquisition would be of public benefit.

(2) The Commission must not include conditions in the determination unless the Commission is satisfied that, disregarding any conditions the Commission could include, the acquisition, if put into effect, could, in all the circumstances, have the effect of substantially lessening competition in any market.

(3) In considering whether to include conditions in the determination, the Commission:

(a) must have regard to all relevant matters; and

(b) may have regard to:

(i) the effect on the interests of consumers that compliance with the conditions would have, or be likely to have; or

(ii) without limiting subparagraph (i) of this paragraph - any consumer benefits that would result, or be likely to result from compliance with the conditions.

(4) To avoid doubt, a reference in this Act to a determination made under paragraph 51ABZE(1)(a) includes a reference to any conditions included in it.

51ABZG Goodwill protection provisions

(1) The Commission may declare, in a determination made under subsection 51ABZE(1) in respect of a notification of an acquisition, that paragraph 51(2)(e) does not apply to a goodwill protection provision of the contract pursuant to which the acquisition is to take place.

(2) The Commission must not include a declaration under subsection (1) of this section in relation to a provision of the contract unless the Commission is satisfied that the provision is not necessary for the protection of the purchaser in respect of the goodwill of the business.

(3) To avoid doubt, if the Commission does not include a declaration under subsection (1) in relation to a provision of the contract, the fact that the Commission does not include that declaration does not:

(a) affect the application of any other provision of this Act in relation to the provision; or

(b) limit the powers of the Commission or a court in relation to the provision of the contract, including the ability of the Commission to recognise or claim that paragraph 51(2)(e) does not apply to the provision.

(4) To avoid doubt, a reference in this Act to a determination made under subsection 51ABZE(1) includes a reference to any declarations included in it under subsection (1) of this section.

Subdivision B - Substantial lessening of competition

51ABZH Substantial lessening of competition

(1) This section applies to the Commission considering, for the purposes of this Part, whether an acquisition, if put into effect, would or could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.

Note: For lessening of competition , see section 4G.

(2) The Commission must have regard to all relevant matters.

(3) Without limiting subsection (2), the Commission may have regard to any of the following matters:

(a) the contract, arrangement or understanding, or proposed contract, arrangement or understanding, pursuant to which the acquisition is to take place;

(b) the commercial relationships of the parties to the acquisition (and, if any of the parties is a body corporate, of a body corporate that is related to that party).

(4) For the purposes of this Part, the acquisition may have the effect or be likely to have the effect of substantially lessening competition in a market if the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of creating, strengthening or entrenching a substantial degree of power in the market.

(5) Subsections 46(3) to (8) have effect for the purposes of this Part as if:

(a) a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this Part; and

(b) a reference in those subsections to a market were a reference to a market (within the meaning of this Part).

Note: Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.

Cumulative effects

(6) The Commission may treat the effect of the acquisition as being the combined effect of:

(a) the acquisition (the current acquisition ); and

(b) any one or more acquisitions:

(i) that are put into effect during the 3 years ending on the effective notification date of the notification of the current acquisition; and

(ii) the parties to which include any party to the current acquisition or, if a party to the current acquisition is a body corporate, include a body corporate that is related to that party; and

(iii) the targets of which are involved (directly or indirectly) in the supply or acquisition of the same goods or services or goods or services that are substitutable for, or otherwise competitive with, each other (disregarding any geographical factors or limitations).

(7) Subsection (6) does not limit the circumstances in which an acquisition would or could, if put in effect, have the effect, or be likely to have the effect, of substantially lessening competition for the purposes of this Part.

Effect outside this Part

(8) To avoid doubt, this Subdivision does not affect the meaning of substantially lessening competition outside this Part.

Subdivision C - Process for considering acquisitions

51ABZI Time for making determinations

Earliest time for making determinations

(1) The Commission must not make a determination under subsection 51ABZE(1) in respect of a notification of an acquisition earlier than 15 business days after the effective notification date of the notification.

Commission deemed to make determination at end of determination period

(2) The Commission is taken to determine under paragraph 51ABZE(1)(a), at the end of the determination period for a notification of an acquisition, that the acquisition may be put into effect, unless the Commission makes a determination under subsection 51ABZE(1) in respect of the notification before the end of that period.

Note: A determination the Commission is taken to make under this subsection does not include any conditions under subsection 51ABZF(1) or declarations under subsection 51ABZG(1).

Determination periods

(3) The determination period for a notification of an acquisition is:

(a) if the notification is not subject to phase 2 review - the phase 1 determination period for the notification; or

(b) if the notification is subject to phase 2 review - the phase 2 determination period for the notification.

(4) The phase 1 determination period for a notification of an acquisition that has an effective notification date:

(a) starts on the effective notification date; and

(b) subject to subparagraph 51ABZB(2)(a)(ii) and section 51ABZZE (extensions of determination periods), ends 30 business days after it starts.

(5) If a notification of an acquisition is subject to phase 2 review, the phase 2 determination period for the notification:

(a) starts immediately after the end of the phase 1 determination period for the notification; and

(b) subject to paragraph 51ABZB(2)(b), subsections 51ABZK(5), 51ABZL(4) and 51ABZN(2) and section 51ABZZE (extensions of determination periods), ends 90 business days after it starts.

Invalid determinations etc.

(6) Subsection (7) applies if:

(a) the Commission purports to make a determination in respect of a notification of an acquisition under subsection 51ABZE(1) before the end of the determination period; and

(b) the determination is invalid, or a court:

(i) sets the determination aside; or

(ii) remits the decision to make the determination back to the Commission to be remade.

(7) A reference in subsection (2) of this section to making a determination before the end of the determination period includes a reference to purportedly making a determination as mentioned in paragraph (6)(a).

Note: The effect of this subsection is that the invalidity etc. does not result in the Commission being taken to have made a determination under subsection (2) at the end of the determination period.

51ABZJ Phase 2 review - when notifications are subject to phase 2 review

(1) During the phase 1 determination period for a notification of an acquisition, the Commission may, in writing, decide that the notification is to be subject to phase 2 review, if:

(a) the Commission is satisfied that the acquisition to which the notification relates, if put into effect, could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market; and

(b) the Commission has not made a determination in respect of the notification under paragraph 51ABZE(1)(a).

Note: Deciding that the notification is to be subject to phase 2 review extends the time the Commission has to make a determination in respect of the notification under subsection 51ABZE(1) (see section 51ABZI).

(2) If the Commission decides that the notification is to be subject to phase 2 review:

(a) the notification is subject to phase 2 review ; and

(b) the Commission must give to the notifying party of the notification:

(i) written notice of the decision, including the matters specified under subsection (3); and

(ii) written notice of the day by which, under paragraph (d) of this subsection, the fee (if any) mentioned in paragraph (c) must be paid; and

(c) the Commission must not make a determination in respect of the notification of the acquisition under subsection 51ABZE(1) if the fee (if any) determined under paragraph (4)(a) of this section for the purposes of this paragraph in relation to the notification has not been paid; and

(d) if the fee (if any) mentioned in paragraph (c) of this subsection is not paid on or before the day determined under paragraph (4)(b) for the purposes of this paragraph in relation to the notification - the Commission is taken to decide under subsection 51ABZD(2) on that day to cease considering the notification (if the Commission has not already made a decision under section 51ABZD to cease considering the notification).

Note: See also section 51ABZK (Commission must give notice of competition concerns).

(3) The notice given under subparagraph (2)(b)(i) of this section must:

(a) identify the parties to the acquisition, and describe the economic activities in which they engage;

(b) explain the Commission's satisfaction, including specifying:

(i) the nature of the theory of harm that is the basis for the Commission's satisfaction; and

(ii) the matters the Commission intends to investigate before making a determination in respect of the notification under subsection 51ABZE(1).

(4) The Minister may, by legislative instrument, determine:

(a) a fee for the purposes of paragraph (2)(c) in relation to the notification; or

(b) a day for the purposes of paragraph (2)(d) in relation to the notification.

51ABZK Phase 2 review - notices of competition concerns

Notices of competition concerns

(1) Subject to subsection (2), the Commission must give the notifying party of a notification of an acquisition a written notice (a notice of competition concerns ) in accordance with subsections (3) and (4) if the notification is subject to phase 2 review.

(2) The Commission is not required to give a notice of competition concerns if the Commission makes a determination in respect of the notification of the acquisition under paragraph 51ABZE(1)(a) on or before the 25th business day after the start of the phase 2 determination period for the notification.

Contents of notices of competition concerns

(3) The notice of competition concerns must set out:

(a) the Commission's preliminary assessment of whether the acquisition, if put into effect, would have the effect, or be likely to have the effect, of substantially lessening competition in any market; and

(b) the grounds on which the Commission makes the assessment, referring to the evidence or other material on which those grounds are based.

When notices of competition concerns must be given

(4) The notice of competition concerns must be given:

(a) no later than the 25th business day after the start of the phase 2 determination period for the notification of the acquisition; or

(b) if it is not practicable to give the notice of competition concerns by that day - as soon as practicable after that 25th business day.

(5) If the Commission does not give the notice of competition concerns in relation to the notification of the acquisition before the end of the 25th business day mentioned in paragraph (4)(a), the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:

(a) if the notifying party of the notification agrees in writing to this paragraph applying in relation to the notification - the phase 2 determination period is extended by the number of business days to which subsection (6) of this section applies (not including a day occurring on or after the day, if any, on which the notifying party withdraws its agreement);

(b) in any case (but subject to subsection (7) of this section) - the 15 business days mentioned in subsections 51ABZZD(3) and (5) are reduced by the number of business days to which subsection (6) of this section applies;

(c) in any case - the period mentioned in paragraph 51ABZZE(3)(b) is extended by the number of business days to which subsection (6) of this section applies.

(6) This subsection applies to a business day if:

(a) the day occurs after the 25th business day after the start of the phase 2 determination period for the notification of the acquisition; and

(b) the Commission does not give the notice of competition concerns on or before the day.

(7) If the reduction under paragraph (5)(b) would be of more than 15 business days, subsections 51ABZZD(3) and (5) do not apply in relation to making the determination.

51ABZL Phase 2 review - submissions

(1) If the Commission gives the notifying party of a notification of an acquisition a notice of competition concerns in relation to the notification, the Commission:

(a) must give the notifying party a reasonable opportunity to make, during the period:

(i) starting on the day on which the Commission gives the notice of competition concerns; and

(ii) ending on the 25th business day after that day;

oral or written submissions to the Commission in relation to the matters set out in the notice of competition concerns; and

(b) subject to subsection (2) of this section, in making a determination under subsection 51ABZE(1) in respect of the notification of the acquisition, must not take into account submissions received, as mentioned in paragraph (a) of this subsection, after that period.

(2) For the purposes of paragraph (1)(b):

(a) the notifying party may, in writing, before the end of the period during which the notifying party may make submissions to the Commission in relation to the notice of competition concerns, request the Commission to extend the period; and

(b) if the notifying party does so, the Commission may, by written notice given to the notifying party, extend the period.

(3) To avoid doubt, the Commission may extend the period more than once.

(4) If the Commission extends the period, the following periods relating to making a determination under subsection 51ABZE(1) in respect of the notification are also extended by the same number of days:

(a) the phase 2 determination period for the notification;

(b) the period mentioned in paragraph 51ABZZE(3)(b).

51ABZM Phase 2 review - determinations that acquisition may be put into effect

Sections 51ABZK and 51ABZL do not limit the Commission's ability to make a determination in respect of a notification of an acquisition under paragraph 51ABZE(1)(a) at any time occurring before the end of the determination period for the notification.

51ABZN Phase 2 review - false or misleading information

(1) This section applies in relation to a notification of an acquisition if:

(a) the notification is subject to phase 2 review; and

(b) the Commission has not made a determination in respect of the notification under subsection 51ABZE(1).

(2) If the Commission is satisfied that subsection (3) of this section applies to the notification, the Commission may, in writing, decide that the phase 2 determination period for the notification is extended by the period:

(a) starting on the day the Commission makes the decision under this subsection; and

(b) including:

(i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZO(2); and

(ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with subsection 51ABZO(2).

(3) This subsection applies if:

(a) the notification:

(i) is materially misleading; or

(ii) contains information that is false in a material particular; or

(b) any information the notifying party gives to the Commission under an acquisitions provision in relation to the notification is false in a material particular.

(4) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (3) applies to the notification.

(5) If the Commission makes a decision under subsection (2), the Commission must give written notice of the decision to the notifying party of the notification.

Note: For review of a decision under subsection (2), see section 51ABZZG.

(6) If the Commission extends the phase 2 determination period for the notification under subsection (2) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZE(1) in respect of the notification:

(a) the 25 business days mentioned in section 51ABZK is increased by the number of days of the extension;

(b) the period mentioned in paragraph 51ABZZE(3)(b) is extended by the same number of days.

51ABZO Phase 2 review - false or misleading information: providing additional information and documents

(1) This section applies in relation to a notification of an acquisition if:

(a) the Commission has made a decision under subsection 51ABZN(2) in relation to the notification; and

(b) the notifying party of the notification gives the Commission information or documents in response to the decision.

(2) The information or documents are given in accordance with this subsection if:

(a) in the case of information - the information is given in writing; and

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the notification.

(4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.

Division 5 - Commission consideration of acquisitions: public benefit

Subdivision A - Public benefit applications

51ABZP Public benefit applications

(1) The notifying party of a notification of an acquisition may apply to the Commission for a determination that the acquisition would be of public benefit, if:

(a) both:

(i) the Commission has made a determination under paragraph 51ABZE(1)(a) in respect of the notification that includes conditions; and

(ii) the acquisition has not been put into effect; or

(b) the Commission has made a determination under paragraph 51ABZE(1)(b) in respect of the notification.

(2) The application must be:

(a) made no later than 21 days after the Commission makes the determination; and

(b) made in writing; and

(c) accompanied by the fee (if any) determined under subsection (3) for the purposes of this paragraph in relation to the application.

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(c) in relation to the application.

(4) To avoid doubt, the application is taken not to be made before the fee (if any) required by paragraph (2)(c) of this section is paid.

(5) If the application is made in accordance with subsection (2), it is a public benefit application in relation to the notification.

(6) Subject to paragraph 51ABZR(1)(a), subsection 51ABZS(5) and paragraph 51ABZT(2)(a), the effective application date of the application is the day the application is made.

(7) The Commission must give the notifying party written notice:

(a) that the Commission has received the application; and

(b) of the effective application date.

Subdivision B - Powers of the Commission in response to incomplete or misleading public benefit applications and changes of fact

51ABZQ Public benefit applications that are materially incomplete or misleading

(1) The Commission may decide, in writing, that a public benefit application in relation to a notification of an acquisition should be taken not to have an effective application date, if:

(a) the Commission has not made a determination in respect of the application under subsection 51ABZW(1); and

(b) the Commission is satisfied that subsection (2) of this section applies to the application.

(2) This subsection applies to the application if it:

(a) is materially incomplete; or

(b) is materially misleading; or

(3) The decision must be made within a reasonable period after the Commission begins to be satisfied that subsection (2) applies to the application.

(4) In considering whether subsection (2) applies to the public benefit application, the Commission may have regard to:

(a) the extent to which the application is made in the form determined under paragraph (5)(a) for the purposes of this paragraph in relation to the application; or

(b) the extent to which the application includes, or is accompanied by, any information or documents determined under paragraph (5)(b) for the purposes of this paragraph in relation to the application; or

(c) any additional information or documents given to the Commission as mentioned in section 51ABZS in response to any previous decision under subsection (1) of this section in relation to the application; or

(d) any change of fact:

(i) of which the Commission becomes aware after the notification is made; and

(ii) that is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application.

(5) The Minister may, in writing, determine:

(a) a form for the purposes of paragraph (4)(a) of this section in relation to the application; or

(b) information or documents for the purposes of paragraph (4)(b) of this section in relation to the application.

(6) A determination made under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument.

(7) To avoid doubt subsection (2) can apply to the application after the application is made (for example, because of a change of fact) even if subsection (2) did not apply to the application when the application was made.

51ABZR Public benefit applications that are materially incomplete or misleading - consequences of Commission's decisions

(1) If the Commission makes a decision under subsection 51ABZQ(1) in relation to a public benefit application in relation to a notification of an acquisition:

(a) the application is taken never to have had an effective application date ; and

(b) the Commission must give to the notifying party of the notification of the acquisition written notice:

(i) of the decision; and

(ii) the grounds on which the Commission is satisfied that subsection 51ABZQ(2) applies to the application.

Note: For review of the decision, see section 51ABZZG.

(2) The Commission must not make a determination under subsection 51ABZW(1) in respect of the application if, because of a decision made under subsection 51ABZQ(1), the application does not have an effective application date.

51ABZS Public benefit applications that are materially incomplete or misleading - providing additional information and documents

(1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:

(a) because of a decision made under subsection 51ABZQ(1), the application does not have an effective application date; and

(b) the notifying party of the notification gives the Commission additional information or documents in response to the decision.

(2) The additional information or documents are given in accordance with this subsection if:

(a) in the case of information - the information is given in writing; and

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the application.

(4) To avoid doubt, the additional information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.

(5) The effective application date of the public benefit application is the day the additional information or documents are given.

(6) The Commission must give the notifying party written notice of the effective application date.

51ABZT Material changes of fact

(1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:

(a) the Commission has not made a determination in respect of the application under subsection 51ABZW(1); and

(b) the Commission becomes aware of a change of fact.

(2) If the Commission is satisfied that the change is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application, the Commission may, in writing:

(a) decide that the effective application date of the application is the date on which the Commission becomes aware of the change of fact; or

(b) decide that the determination period for the application is extended by the period mentioned in subsection (3) of this section.

(3) For the purposes of paragraph (2)(b), the extension is for the period:

(a) starting on the day the Commission makes the decision under that paragraph; and

(b) including:

(i) each day on which the notifying party of the notification has not given to the Commission information or documents in response to the decision in accordance with subsection 51ABZU(2); and

(ii) the day (if any) on which the notifying party gives to the Commission information or documents in response to the decision in accordance with that subsection.

(4) The decision must be made within a reasonable period after the Commission becomes aware of the change of fact.

(5) If the Commission makes a decision under subsection (2) of this section, the Commission must give written notice of the decision to the notifying party of the notification.

Note: For review of the decision, see section 51ABZZG.

(6) If the Commission extends the determination period for the public benefit application under paragraph (2)(b) of this section, the following paragraphs apply in relation to making a determination under subsection 51ABZW(1) in respect of the application:

(a) the 20 business days mentioned in section 51ABZZA is increased by the same number of days as the extension;

(b) the period mentioned in paragraph 51ABZZE(3)(c) is extended by the same number of days.

51ABZU Material changes of fact - providing additional information and documents

(1) This section applies in relation to a public benefit application in relation to a notification of an acquisition if:

(a) the Commission has made a decision under paragraph 51ABZT(2)(b) in relation to the application because of a material change of fact; and

(b) the notifying party of the notification gives the Commission information or documents in response to the decision.

(2) The information or documents are given in accordance with this subsection if:

(a) in the case of information - the information is given in writing; and

(3) The Minister may, by legislative instrument, determine a fee for the purposes of paragraph (2)(b) in relation to the information or documents and the application.

(4) To avoid doubt, the information or documents are taken not to be given before the fee (if any) required by paragraph (2)(b) is paid.

Subdivision C - When Commission may cease considering public benefit applications

51ABZV When Commission may cease considering public benefit applications

(1) This section applies to a public benefit application in relation to a notification of an acquisition if the Commission has not made a determination in respect of the application under subsection 51ABZW(1).

(2) The Commission must decide, in writing, to cease considering the application if requested to do so, in writing, by the notifying party of the notification.

(3) The Commission may also decide, in writing, to cease considering the application if the Commission is satisfied that the parties to the acquisition no longer intend to put the acquisition into effect.

(4) Subsections (2) and (3) do not limit each other.

(5) If the Commission decides under subsection (2) or (3) to cease considering the application:

(a) the Commission must give written notice of its decision to the notifying party of the notification; and

(b) Subdivisions B, D and F do not apply to the application.

Note 1: An effect of making the decision is that the acquisition might not be able to be put into effect (see section 45AY, subsection 51ABE(3) and section 51ABF).

Note 2: For review of a decision under subsection (3) of this section, see section 51ABZZG.

Subdivision D - Commission consideration of public benefit applications

51ABZW Determinations on public benefit applications

(1) If a public benefit application in relation to a notification of an acquisition is made, the Commission may, in writing, determine:

(a) that the acquisition would be of public benefit; or

(b) not to make the determination applied for.

Note: The determination may include conditions (see section 51ABZX).

(2) The Commission must not make a determination under paragraph (1)(a) unless the Commission is satisfied that, were the acquisition put into effect (and any conditions included in the determination under subsection 51ABZX(1) complied with):

(a) the acquisition would, in all the circumstances, result, or be likely to result, in a benefit to the public; and

(b) the benefit would, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.

(3) In considering whether to determine that the acquisition would be of public benefit or not to make the determination applied for, the Commission must have regard to:

(a) the object of this Act; and

(b) all relevant matters, including the interests of consumers.

(4) The Commission must give:

(a) written notice of the determination made under subsection (1); and

(b) a written statement of the Commission's reasons for making the determination;

to the notifying party of the notification of the acquisition.

Note: For review of a determination made under subsection (1), see Division 1B of Part IX.

(5) For the purposes of this Act (other than this Division and Subdivision B of Division 6), the determination is taken to be made when the Commission includes a copy of it on the acquisitions register.

51ABZX Conditions

(1) A determination made under paragraph 51ABZW(1)(a) may include conditions.

Example: A condition that a specified person must give an undertaking to the Commission for the purposes of section 87B and comply with the undertaking.

(2) In considering whether to include conditions in a determination, the Commission:

(a) must have regard to all relevant matters; and

(b) may have regard to:

(i) the effect on the interests of consumers that compliance with the conditions would have, or be likely to have; or

(ii) without limiting subparagraph (i) of this paragraph - any consumer benefits that would result, or be likely to result from compliance with the conditions.

Subdivision E - Public benefit

51ABZY Public benefit

(1) This section applies in relation to the Commission considering, for the purposes of this Part, whether, were an acquisition put into effect:

(a) the acquisition would, in all the circumstances, result, or be likely to result, in a benefit to the public; and

(b) the benefit would, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.

(2) The Commission must have regard to all relevant matters.

(3) Without limiting subsection (2), the Commission may have regard to the contract, arrangement or understanding, or proposed contract, arrangement or understanding, pursuant to which the acquisition is to take place.

Subdivision F - Process for considering public benefit applications

51ABZZ Time for making determinations in respect of public benefit applications

Commission deemed to make determination at end of determination period

(1) The Commission is taken to determine under paragraph 51ABZW(1)(b), at the end of the determination period for a public benefit application, not to make the determination applied for, unless the Commission makes a determination in respect of the application under subsection 51ABZW(1) before the end of that period.

Meaning of determination period

(2) If a public benefit application in relation to a notification of an acquisition has an effective application date, the determination period for the application:

(a) starts on the effective application date; and

(b) subject to paragraph 51ABZT(2)(b), subsections 51ABZZA(4) and 51ABZZB(4) and section 51ABZZE (extensions of determination periods) - ends 50 business days after it starts.

Invalid determinations etc.

(3) Subsection (4) of this section applies if:

(a) the Commission purports to make a determination in respect of a public benefit application under subsection 51ABZW(1) before the end of the determination period; and

(b) the determination is invalid, or a court:

(i) sets the determination aside; or

(ii) remits the decision to make the determination back to the Commission to be remade.

(4) A reference in subsection (1) of this section to making a determination before the end of the determination period includes a reference to purportedly making the determination as mentioned in paragraph (3)(a).

Note: The effect of this subsection is that the invalidity etc. does not result in the Commission being taken to have made a determination under subsection (1) at the end of the determination period.

51ABZZA Public benefit assessments

Public benefit assessments

(1) The Commission must give the notifying party of a notification of an acquisition a written notice (a public benefit assessment ) in accordance with subsections (2) and (3) if a public benefit application in relation to the notification has an effective application date.

Content of public benefit assessments

(2) The public benefit assessment must set out:

(a) the Commission's preliminary assessment of the benefits and detriments to the public that the Commission has identified could result, or be likely to result, from the acquisition, including an assessment of the significance of those benefits and detriments; and

(b) the grounds on which the Commission makes the assessment, referring to the evidence or other material on which those grounds are based.

When public benefit assessments must be given

(3) The Commission must give the public benefit assessment:

(a) no later than the 20th business day after the effective application date of the application; or

(b) if it is not practicable to give the public benefit assessment by that day - as soon as practicable after that 20th business day.

(4) If the Commission does not give the public benefit assessment before the end of the 20th business day mentioned in paragraph (3)(a), the following paragraphs apply in relation to making a determination under subsection 51ABZW(1) in respect of the public benefit application:

(a) if the notifying party of the notification of the acquisition agrees in writing to this paragraph applying in relation to the application - the determination period for the application is extended by the number of business days to which subsection (5) of this section applies (not including a day occurring on or after the day, if any, on which the notifying party withdraws its agreement);

(b) in any case (but subject to subsection (6) of this section) - the 15 business days mentioned in subsections 51ABZZD(3) and (5) are reduced by the number of business days to which subsection (5) of this section applies;

(c) in any case - the period mentioned in paragraph 51ABZZE(3)(c) is extended by the number of business days to which subsection (5) of this section applies.

(5) This subsection applies to a business day if:

(a) the day occurs after the 20th business day after the effective application date of the application; and

(b) the Commission does not give the public benefit assessment on or before the day.

(6) If the reduction under paragraph (4)(b) would be of more than 15 business days, subsections 51ABZZD(3) and (5) do not apply in relation to making the determination.

51ABZZB Public benefit assessments - submissions

(1) If the Commission gives the notifying party of a notification of an acquisition a public benefit assessment in respect of a public benefit application in relation to the notification, the Commission:

(a) must give the notifying party a reasonable opportunity to make, during the period:

(i) starting on the day the Commission gives the public benefit assessment; and

(ii) ending on the 15th business day after that day;

oral or written submissions to the Commission in relation to the matters set out in the public benefit assessment; and

(b) subject to subsection (2) of this section, in making a determination under subsection 51ABZW(1) in respect of the application, must not take into account submissions received, as mentioned in paragraph (a) of this subsection, after that period.

(2) For the purposes of subsection (1):

(a) the notifying party may, in writing, before the end of the period during which the notifying party may make submissions to the Commission in relation to the public benefit assessment, request the Commission to extend the period; and

(b) if the notifying party does so - the Commission may, by written notice given to the notifying party, extend the period.

(3) To avoid doubt, the Commission may extend the period more than once.

(4) If the Commission extends the period, the following periods relating to making a determination under subsection 51ABZW(1) in respect of the public benefit application are extended by the same number of days:

(a) the determination period for the public benefit application;

(b) the period mentioned in paragraph 51ABZZE(3)(c).

Division 6 - Miscellaneous

Subdivision A - Miscellaneous matters relating to Commission consideration of notifications

51ABZZC Commitments and undertakings

(1) In considering a notification of an acquisition under Division 4, the Commission must not have regard to a commitment or undertaking offered by a party to an acquisition:

(a) if the notification is not subject to phase 2 review - unless:

(i) the commitment or undertaking is offered no later than 20 business days after the effective notification date of the notification; or

(ii) subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the phase 1 determination period; or

(b) if the notification is subject to phase 2 review - unless:

(i) the commitment or undertaking is offered no later than the 60th business day occurring on or after the start of the phase 2 determination period; or

(ii) subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the phase 2 determination period.

(2) In considering a public benefit application in relation to a notification of an acquisition under Division 5, the Commission must not have regard to a commitment or undertaking offered by a party to an acquisition unless subsection 51ABZZE(3) applies to the commitment or undertaking in relation to the determination period for the public benefit application.

51ABZZD Information gathering

(1) This section applies in relation to the Commission making an acquisition determination in respect of a notification of an acquisition.

(2) Before making the acquisition determination, the Commission may do any of the following:

(a) give any persons who appear to the Commission to be interested a written notice inviting written submissions, to be made to the Commission within a specified period, in relation to the proposed acquisition;

(b) give any party to the acquisition a written notice requesting the party to give the Commission (orally or in writing), within a specified period, additional information relevant to making the determination;

(c) give a person a written notice requesting the person to give the Commission (orally or in writing), within a specified period, particular information relevant to making the determination;

(d) consult with such persons as the Commission believes to be reasonable and appropriate for the purposes of making the determination.

(3) The Commission must not give a request under paragraph (2)(b) or (c) on or after the start of the 15 business days mentioned in subsection (5) unless:

(a) the notifying party of the notification agrees in writing to the Commission making the request; or

(b) the request relates to information the Commission received before those 15 business days; or

(c) the determination is a determination under subsection 51ABZE(1) and the notification is not subject to phase 2 review.

(4) In making the acquisition determination, the Commission:

(a) must take into account any submissions or information received under paragraph (2)(a), (b) or (c) of this section within the period specified in the notice mentioned in that paragraph; and

(b) subject to subsection (5) may, but need not, take into account any submissions or information received after the end of those periods; and

(c) subject to subsection (5), must take into account any information obtained from consultations under paragraph (2)(d).

(5) The Commission must not take into account submissions or information received or obtained later than 15 business days before the end of:

(a) if the determination is a determination under subsection 51ABZE(1) and the notification is subject to phase 2 review - the phase 2 determination period for the notification; or

(b) if the determination is a determination under subsection 51ABZW(1) in respect of a public benefit application - the determination period in relation to the application.

Note: This subsection does not apply during the phase 1 determination period.

(6) Subsection (5) does not apply to information given in accordance with a request made as mentioned in subsection (3).

(7) Subsections (4) and (5) of this section do not limit:

(a) section 51ABZL (submissions in response to notice of competition concerns); or

(b) section 51ABZZB (submissions in response to public benefit assessment).

51ABZZE Extensions of determination periods

(1) For the purposes of making an acquisition determination in respect of a notification of an acquisition, this section applies to any of the following periods (the determination period ):

(a) if the determination is a determination under subsection 51ABZE(1):

(i) the phase 1 determination period for the notification; or

(ii) the phase 2 determination period for the notification;

(b) if the determination is a determination under subsection 51ABZW(1) - the determination period for a public benefit application in relation to the notification.

(2) The Commission may, during the determination period, give the notifying party of the notification of the acquisition a written notice (the extension notice ) extending the determination period for a specified period, if any of the following paragraphs apply:

(a) all of the following subparagraphs apply:

(i) a party to the acquisition offers, in writing, to make a commitment or undertaking (including giving an undertaking for the purposes of section 87B) in connection with the making of the acquisition determination;

(ii) subsection (3) of this section applies to the commitment or undertaking;

(iii) the extension is of no more than 15 business days;

(b) all of the following subparagraphs apply:

(i) the Commission, before the end of the determination period, requests the notifying party, in writing, to give to the Commission, by a specified day, additional information relevant to making the acquisition determination;

(ii) the notifying party does not give the additional information to the Commission by the specified day;

(iii) the extension is of no more than the number of days occurring after the specified day on which the notifying party has not given the additional information to the Commission;

(i) before the end of the determination period, a party to the acquisition is served a notice (the section 155 notice ) under subsection 155(1) requiring the party to furnish information, produce documents or appear before the Commission relating to the making of the acquisition determination;

(ii) the Commission gives the extension notice 10 business days or more after the section 155 notice is served;

(iii) the extension is of no more than the number of business days in the period commencing 10 business days after the section 155 notice is served and ending on the day on which the party furnishes the information, produces the documents or appears before the Commission;

(d) both:

(i) before the end of the determination period, the notifying party requests the Commission, in writing, to extend the period by a specified number of days; and

(ii) the extension is of no more than that number of days.

Note: An extension under paragraph (c) of this subsection is reviewable under section 51ABZZG.

(3) This subsection applies to a commitment or undertaking that is offered during the following period:

(a) if subparagraph (1)(a)(i) applies - the period:

(i) starting at the start of the determination period; and

(ii) ending 20 business days after it starts;

(b) if subparagraph (1)(a)(ii) applies - the period:

(i) starting on the 50th business day occurring on or after the start of the determination period; and

(ii) ending on the 60th business day occurring on or after the start of the determination period;

(i) starting at the start of the determination period; and

(ii) ending 35 business days after it starts.

(4) However, if the determination period is extended under paragraph (2)(b), (c) or (d) by a number of days, subsection (3) applies, in relation to a commitment or undertaking offered after that extension, as if the period mentioned in subsection (3) were extended by the same number of days.

51ABZZF Consequences of setting aside or remitting acquisition determinations

Determinations under subsection 51ABZE(1)

(1) If a court sets aside a determination made under subsection 51ABZE(1) in respect of a notification of an acquisition, Division 4 applies in relation to the notification with the following modifications:

(a) paragraphs 51ABZE(2)(a) and (b) and sections 51ABZJ to 51ABZO (phase 2 review) do not apply;

(b) the phase 1 determination period for the notification is taken to start on the day the court sets aside the determination.

(2) If a court remits a decision to make a determination under subsection 51ABZE(1) in respect of a notification of an acquisition back to the Commission to be made again, Division 4 applies in relation to the notification with the following modifications:

(a) paragraphs 51ABZE(2)(a) and (b) and sections 51ABZJ to 51ABZO (phase 2 review) do not apply;

(b) the phase 1 determination period for the notification is taken to start on the day the court remits the decision.

Determinations under subsection 51ABZW(1)

(3) If a court sets aside a determination made under subsection 51ABZW(1) in respect of a public benefit application, Division 5 applies in relation to the application with the following modification: the determination period for the application is taken to start on the day the court sets aside the determination.

(4) If a court remits a decision to make a determination under subsection 51ABZW(1) in respect of a public benefit application back to the Commission to be made again, Division 5 applies in relation to the application with the following modification: the determination period for the application is taken to start on the day the court remits the decision.

51ABZZG Internal review of decisions

(1) This section applies to any of the following decisions (a reviewable decision ):

(a) a decision under subsection 51ABY(1), 51ABZB(2), 51ABZD(3) or 51ABZN(2) in respect of a notification of an acquisition;

(b) a decision under subsection 51ABZQ(1), 51ABZT(2) or 51ABZV(3) in respect of a public benefit application in relation to a notification of an acquisition;

(c) a decision under paragraph 51ABZZE(2)(c) to extend a period in relation to making an acquisition determination in respect of a notification of an acquisition.

Applications for internal review

(2) The notifying party of the notification may apply in writing to the Commission for review (an internal review ) of the reviewable decision, if the decision was made by a delegate of the Commission who was not a member of the Commission.

(3) An application for an internal review must be made within 7 days after the day on which the decision was made.

Reconsideration by Commission

(4) Within 7 days after receiving an application under subsection (3) for internal review, the Commission must:

(a) review the decision; and

(b) affirm, vary or revoke the decision; and

(5) The Commission must, within 1 business day after the day it makes a decision under subsection (4), give the notifying party a written statement of the Commission's reasons for the decision.

(6) If the Commission's functions under subsections (4) and (5) are performed by a delegate of the Commission, the delegate who makes the decision under subsection (4):

(a) must not have been involved in making the original reviewable decision; and

(b) must hold a position or perform duties of a higher level than the delegate who made the original reviewable decision.

Review by the Tribunal

(7) The notifying party may apply under Division 1A of Part IX to the Tribunal for review of the following decisions relating to the notification of the acquisition:

(a) a reviewable decision made by the Commission itself, or by a delegate of the Commission who was a member of the Commission; or

(b) an internal review decision made under subsection (4).

Subdivision B - Acquisitions register

51ABZZH Acquisitions register

(1) The Commission must keep a register under this subsection.

(2) The acquisitions register must be made available for public inspection on the internet.

(3) The Commission may correct or update information or documents on the acquisitions register.

51ABZZI Contents of acquisitions register

(1) The acquisitions register must include, for each notified acquisition:

(a) the details, of each notification of the acquisition, determined under paragraph (6)(a) for the purposes of this paragraph; and

(b) a copy of each acquisition determination (if any) made in respect of the notification, and a statement of the Commission's reasons for making the determination; and

(c) if a notification of the acquisition is subject to phase 2 review - a copy of the notice given under subparagraph 51ABZJ(2)(b)(i) in relation to the notification.

(2) The register must also include any other information or documents, relating to the operation of the acquisitions provisions, determined under paragraph (6)(b) of this section.

(3) Details to which paragraph (1)(a) applies must be included on the acquisitions register within 1 business day after the effective notification date of the notification.

(4) Information or documents to which paragraph (1)(b) or (c) applies must be included on the acquisitions register within 1 business day after the day the relevant determination or decision is made.

(5) Information or documents to which subsection (2) applies must be included on the acquisitions register by the time determined under paragraph (6)(c) for the purposes of this subsection in relation to the information or documents.

(6) The Minister may, by legislative instrument, determine:

(a) details of a notification for the purposes of paragraph (1)(a); or

(b) information or documents for the purposes of subsection (2); or

(7) Without limiting paragraph (6)(c), a determination made under that paragraph:

(a) may determine a time by reference to a decision of the Commission in relation to the information or documents; and

(b) may provide for review of such a decision.

Subdivision C - Partnerships and trusts

51ABZZJ Treatment of partnerships

(1) The acquisitions provisions apply to a partnership as if it were a person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the partnership by the acquisitions provisions is imposed on each partner instead, but may be discharged by any of the partners.

(3) An offence against the acquisitions provisions that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:

(a) did the relevant act or made the relevant omission; or

(b) aided, abetted, counselled or procured the relevant act or omission; or

(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

(4) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

(5) A reference in the acquisitions provisions to a corporation is taken to include a reference to the partnership if all of the partners are corporations.

(6) For the purposes of the acquisitions provisions, a change in the composition of a partnership does not affect the continuity of the partnership.

51ABZZK Treatment of unit trusts

(1) The acquisitions provisions apply to a unit trust as if it were a person, but with the changes set out in this section.

Trusts with a single trustee

(2) If the unit trust has a single trustee:

(a) an obligation that would otherwise be imposed on the trust by the acquisitions provisions is imposed on the trustee instead; and

(b) an offence against the acquisitions provisions that would otherwise have been committed by the trust is taken to have been committed by the trustee; and

(c) a reference in the acquisitions provisions to a corporation is taken to include a reference to the trust if the trustee is a corporation.

Trusts with multiple trustees

(3) If the unit trust has 2 or more trustees:

(a) an obligation that would otherwise be imposed on the trust by the acquisitions provisions is imposed on each trustee instead, but may be discharged by any of the trustees; and

(b) an offence against the acquisitions provisions that would otherwise have been committed by the trust is taken to have been committed by each trustee of the trust, at the time the contravention was committed, who:

(i) did the relevant act or made the relevant omission; or

(ii) aided, abetted, counselled or procured the relevant act or omission; or

(iii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee); and

(c) a reference in the acquisitions provisions to a corporation is taken to include a reference to the unit trust if all of the trustees are corporations.

Contraventions of civil penalty provisions

(4) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

Subdivision D - Surprise hostile takeovers

51ABZZL Surprise hostile takeovers

(1) Subject to subsection (6), this section applies in relation to a notification of an acquisition of shares in the capital of a body corporate if:

(a) the body corporate is a Chapter 6 entity; and

(b) the acquisition is a takeover acquisition in relation to a proposed takeover bid; and

(d) when the notifying party makes the notification of the acquisition, the notifying party requests the Commission, in writing, to apply this section to the notification.

(2) A request made under paragraph (1)(d) must state:

(a) that the bidder (within the meaning of the Corporations Act 2001) for the proposed takeover bid intends that the bid will be a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 will apply; and

(b) that the bidder has not:

(i) entered into an agreement with the board of the target (within the meaning of that Act) in relation to the proposed bid; or

(ii) obtained the board's support for the proposed bid; and

(i) does not decide that the notification is to be subject to phase 2 review; and

(ii) makes a determination under paragraph 51ABZE(1)(a) of this Act in respect of the notification;

the bidder will give a bidder's statement (within the meaning of the Corporations Act 2001) to the target within 1 business day after the day the Commission gives the notifying party written notice of the determination under subsection 51ABZE(4) of this Act.

(3) The Commission must not include information or documents on the acquisitions register in relation to the notification before the 17th business day after the effective notification date of the notification.

(4) Furthermore, the Commission must not include information or documents on the acquisitions register in relation to the notification at all if, before that 17th business day, the Commission decides under section 51ABZD to cease considering the notification.

Commission may determine that this section does not apply

(5) The Commission may, at any time occurring:

(a) after the notifying party makes the request under paragraph (1)(d); and

(b) on or before the 15th business day after the effective notification date of the notification;

determine, in writing, that this section does not apply to the notification, if the Commission is satisfied that:

(c) the bid is not, or is not likely to be, a bid to which paragraphs (c) and (d) of item 2 of the table in section 611 of the Corporations Act 2001 apply; or

(d) the bidder has done, or intends to do, any of the things mentioned in subparagraph (2)(b)(i) or (ii) of this section; or

(e) it is not likely that the bidder will give a bidder's statement as mentioned in paragraph (2)(c).

(6) If the Commission makes a determination under subsection (5):

(a) this section is taken never to have applied in relation to the notification; and

(b) the Commission must give to the notifying party written notice of the determination.

51ABZZM Acquisitions not stayed during period in which application for review may be made

(1) This section applies to a notification of an acquisition if:

(a) the Commission makes a determination in respect of the notification under paragraph 51ABZE(1)(a); and

(b) section 51ABZZL applies to the acquisition immediately before the Commission makes the determination.

(2) Despite subsection 51ABE(3), the acquisition is not stayed during the period:

(a) starting when the determination is made; and

(b) ending:

(i) if no application is made under subsection 100C(1) for review of the determination - at the end of the period during which such an application could be made; or

(ii) if such an application is made - when the bidder (within the meaning of the Corporations Act 2001) for the takeover bid becomes aware that the application has been made.

(3) Also, the acquisition is not stayed at the time it is put into effect, to the extent the acquisition results from an on-market transaction (within the meaning of the Corporations Act 2001) that occurs so soon after the bidder becomes aware that the application has been made that it is not reasonably possible for the bidder to prevent the transaction from occurring.

(4) For the purposes of subsections (2) and (3), the bidder is taken to be aware that an application has been made if the bidder ought reasonably to be aware of it.

Voting rights

(5) To the extent the acquisition is put into effect at a time at which, because of subsection (2) or (3), the acquisition is not stayed, the bidder is not entitled to exercise the voting rights attached to any of the shares.

(6) Subsection (5) ceases to apply:

(a) if no application is made under subsection 100C(1) for review of the determination - at the end of the period during which such an application could be made; or

(b) if such an application is made - at the earliest time (if any) at which:

(i) the notification has been finally considered; and

(ii) subsection 51ABE(4) does not apply to the acquisition.

51ABZZN ASIC's power to exempt and modify

(1) ASIC may, in writing:

(a) exempt a person from subsection 51ABZZM(5); or

(b) declare that subsection 51ABZZM(5) applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

(2) In deciding whether to give the exemption or declaration, ASIC must consider the purposes of Chapter 6 of the Corporations Act 2001, set out in section 602 of that Act.

(3) The exemption or declaration may:

(a) apply to all persons, specified persons, or a specified class of person; and

(b) relate to all bid class securities, specified bid class securities or a specified class of bid class securities; and

(4) An instrument made under subsection (1) of this section is a notifiable instrument if it applies only to:

(a) a specified person (other than a person specified by membership of a class); or

(b) a specified person (other than a person specified by membership of a class) and persons associated with that specified person.

Otherwise, it is a legislative instrument.

(5) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court (within the meaning of the Corporations Act 2001) may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.

(6) An exemption or declaration given under subsection (2) applies in relation to shares after the relevant acquisition determination is no longer subject to review.

(7) Subject to subsection (8) of this section, Subdivision A of Division 2 of Part 6.10 of the Corporations Act 2001 applies in relation to a decision of ASIC under subsection (1) of this section in the same way as that Subdivision applies in relation to a decision of ASIC under section 655A of that Act.

Note: That Subdivision allows the Takeovers Panel to review decisions of ASIC.

(8) For the purposes of subsection (7) of this section, treat a reference, in Subdivision A of Division 2 of Part 6.10 of the Corporations Act 2001, to Chapter 6 of that Act as including a reference to this Subdivision.

51ABZZO ASIC's power to exempt and modify - notice of decision and review rights

(1) Subject to subsection (2), ASIC must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by a decision under section 51ABZZN a notice, in writing or otherwise:

(a) of the making of the decision; and

(b) of the person's right to have the decision reviewed by the Takeovers Panel under section 656A of the Corporations Act 2001 (see subsection 51ABZZN(7) of this Act).

(2) Subsection (1) does not require ASIC to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if ASIC determines that giving notice to the person or persons is not warranted, having regard to:

(a) the cost of giving notice to the person or persons; and

(b) the way in which the interests of the person or persons are affected by the decision.

(3) A failure to comply with this section does not affect the validity of the decision.

51ABZZP Person must cease to hold shares

(1) If:

(a) the Commission makes a determination under paragraph 51ABZE(1)(a) in respect of a notification of an acquisition; and

(b) the acquisition is put into effect to any extent at a time at which, because of subsection 51ABZZM(2) or (3), the acquisition is not stayed; and

(d) either:

(i) on the review, the Tribunal determines that the acquisition must not be put into effect; or

(ii) the result of the review is that the acquisition is subject to a condition to which it would not have been subject apart from the review, that condition was not complied with and the non-compliance occurred before the Tribunal makes its determination on the review;

then, within 12 months after the Tribunal makes that determination, the person must cease to hold the shares.

(2) ASIC may extend the period within which the person must cease to hold the shares under subsection (1) if the person applies for the extension before the end of the period.

(3) ASIC must not extend the period more than once.

(4) Any voting rights attached to the shares cannot be exercised while the person continues to hold the shares.

(5) If, at the end of the 12 months (or extended period), the person still holds the shares, the person commits an offence for each day while that situation continues.

Penalty: 20 penalty units.

(6) An offence based on subsection (5) is an offence of strict liability.

Note: For strict liability , see section 6.1 of the Criminal Code.

(7) A contravention of this section does not affect the validity of any transaction.

(8) Furthermore, if voting rights are exercised in contravention of subsection (4), the meeting or the resolution on which the voting rights were exercised will be invalid on that ground only if:

(a) the Court (within the meaning of the Corporations Act 2001) is of the opinion that:

(i) a substantial injustice has been caused or may be caused; and

(ii) the injustice cannot be remedied by any order of the Court; and

(b) the Court declares the meeting or resolution invalid.

Subdivision E - Voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999

51ABZZQ Certain voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999

(1) This section applies to a notification of an acquisition if:

(a) the acquisition is, or is part of, a voluntary transfer of business (within the meaning of the Financial Sector (Transfer and Restructure) Act 1999); and

(b) the certificate of transfer (within the meaning of that Act) states that the voluntary transfer of business is necessary:

(i) to promote financial system stability in Australia; or

(ii) if the transferring body (within the meaning of that Act) is an ADI (within the meaning of that Act) - to protect the interests of depositors of the transferring body; or

(iii) if the transferring body is a life insurance company (within the meaning of that Act) - to protect the interests of policy owners or prospective policy owners of the transferring body.

(2) If this section applies to the notification:

(a) subsection 51ABZI(1) (earliest time for making determinations) does not apply in relation to the notification; and

(b) the Commission must not include information or documents on the acquisitions register in relation to the notification unless and until the Commission makes a determination under subsection 51ABZE(1) in respect of the notification.

Subdivision F - Miscellaneous

51ABZZR Delegation by Commission

(1) The Commission may, in writing, delegate any or all of the Commission's functions or powers under an acquisitions provision to a member of the staff of the Commission who is an SES employee or an acting SES employee.

(2) The Commission may delegate a function or power to a person under subsection (1) only if the Commission is satisfied that the person has appropriate qualifications, training or experience to perform the function or exercise the power.

(3) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Commission.

51ABZZS Delegation by Minister

(1) The Minister may, in writing, delegate any or all of the Minister's functions or powers under an acquisitions provision to:

(a) in any case - an SES employee or acting SES employee in the Department; or

(b) in the case of the Minister's power under subsection 51ABY(5) or 51ABZQ(5):

(i) the Commission; or

(ii) a member of the Commission; or

(iii) a member of the staff of the Commission who is an SES employee or an acting SES employee.

(2) Subsection (1) does not apply to the Minister's power under subsection 51ABB(2), 51ABC(3), 51ABP(1), 51ABQ(1) or 51ABS(6).

(3) The Minister may delegate a function or power to a person under subsection (1) only if the Minister is satisfied that the person has appropriate qualifications, training or experience to perform the function or exercise the power.

(4) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister.

51ABZZT Fees

A fee determined under this Part must not be such as to amount to taxation.

51ABZZU Review of the operation of this Part etc.

(1) The Minister must cause a review to be conducted of the operation of:

(a) Division 1A of Part IV; and

(b) this Part; and

(2) The persons who conduct the review must:

(a) commence it no earlier than 1 December 2028; and

(b) complete it, and give the Minister a written report of the review, no later than 31 December 2029.

(3) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Chapter 4 - Provisions relating to particular industries, payment surcharges etc.

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