Australia’s new merger control framework introduces a more structured and transparent process for merger notifications and reviews. A key feature of the reforms is the creation of a public acquisitions register, designed to improve visibility of merger and acquisition activity and strengthen confidence in the regulatory system.

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While greater transparency is a positive development, many businesses are rightly asking: What happens to confidential information provided during a merger review?  

The reforms seek to carefully balance these competing considerations, to ensure confidential information remains confidential.

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1. What is the Acquisitions Register?

The Acquisitions Register lists mergers and acquisitions notified to the regulator, providing market participants with clearer insights into transaction activity. This is a significant shift from previous practice, where details of many transactions were not publicly visible unless they reached a late stage of review.

This new visibility is intended to give stakeholders more confidence in how mergers and acquisitions are assessed and determined by the Australian Competition and Consumer Commission (ACCC) .

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2. Content of the Acquisitions Register

The Acquisitions Register will contain the following:

• Details of the notified acquisition: including the names of the notifying party and target, their ABN or ACN, a non-confidential description of the acquisition, and the relevant ANZSIC (industry) codes.
• Key dates: such as the effective notification date, the end of the determination period, the current phase of the assessment, consultation timeframes, and any extensions granted.
• For waiver applications:  a description of the acquisition and a summary of the reasons for the regulator’s waiver decision.
• For public benefit applications:  a description of the claimed public benefits and detriments supporting the application.
• Determinations and reasons: the ACCC’s formal determination of the notified acquisition and its reasons for making that determination.
• Phase review decisions: the ACCC’s decision (if any) that the notification is subject to phase 2 review.
• Notices of Competition Concerns: (where relevant), a public summary of the regulator’s concerns about the potential competitive effects of the notified acquisition.
• Public Benefit Assessments: (where relevant), a public summary of the regulator’s assessment of claimed public benefits.

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3. Protecting Confidential Information

The regulator recognises that merger and acquisition reviews may involve disclosure of commercially sensitive material to the ACCC, including forward strategies, pricing, supply arrangements and customer contracts. Disclosure of this information publicly could disadvantage businesses and distort competition.

To safeguard against this, while headline details of a notified acquisition will be published on the Acquisition Register, confidential information will not be disclosed without the consent of the parties. The regulator is also bound by statutory confidentiality obligations and will only disclose confidential information in limited circumstances, such as with consent or where required by law.

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4. How to Make a Confidentiality Claim

Businesses wishing to protect confidential information should take a structured approach when lodging documentation in relation to a notified acquisition:

• Clearly identify confidential material: mark specific passages, tables or appendices as confidential, rather than marking entire documents where possible.
• Provide a redacted version: submit a clean copy with the confidential content removed, so it can be published without further amendment.
• State reasons for the claim: outline why the material is confidential, for example, if it contains business or trade secrets or personal information.
• Confirm treatment with the regulator: engage early to ensure there is no ambiguity about what information may be published.

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5. Types of Information Commonly Treated as Confidential

Confidentiality claims will more likely be accepted by the ACCC for:

• Detailed financial data, forecasts or valuations.
• Pricing information, customer contracts, or supplier agreements.
• Internal strategy documents, including business plans and expansion models.
• Sensitive transaction terms, such as non-public deal consideration.
• Third-party information provided under obligation.

By contrast, basic transaction details (such as the names of the parties and a short description of the transaction) will usually be published, even where confidentiality is sought.

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6. Striking the Right Balance

This approach reflects a deliberate balance:

• Transparency: providing public visibility of merger and acquisition activity to strengthen market confidence and accountability.
• Confidentiality: ensuring businesses remain comfortable engaging fully and openly in the review process without fear of confidential information being made public.

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7. What This Means for Businesses

For businesses planning transactions that require notification under the new merger control regime the reforms bring important practical implications:

• Timing of notification: because notified acquisition details will be published promptly on the Acquisition Register, parties need to carefully consider the timing of notification in relation to broader deal announcements and market strategy. This timing needs to be weighed against set timelines under the regime.  
• Public visibility: transaction details will be publicly accessible much earlier in the process than before. Businesses should align their internal and external communications with the anticipated timing of publication on the Acquisition Register.
• Confidentiality management: confidential information should be identified early, with redacted versions prepared in advance to avoid delays.
• Transaction planning: deal teams should factor in the possibility of phase reviews, public consultation, and publication of regulator concerns when developing transaction timelines.
• Regulatory engagement: early and transparent engagement with the regulator on confidentiality claims will be key to ensuring sensitive material remains protected.

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8. Final Thoughts

The reforms to Australia’s merger control landscape mean that proposed merger and acquisition transactions that meet the applicable thresholds for notification are likely to become public much earlier than transaction parties are currently accustomed to by virtue of notified transactions being published on the Acquisition Register. At the time a notification is lodged, the parties must be clear what information they request the ACCC treat as confidential. Accordingly, acquisition planning, processes and timelines will need to adapt to this new level of transparency and regulatory engagement, with early strategic consideration of confidentiality and stakeholder communications becoming increasingly critical for transactions where the new merger control regime will apply.    

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Sierra Legal is actively monitoring the merger reforms and their practical implications. We are advising clients on how best to navigate the evolving reforms, manage confidentiality of business information, and align transaction strategy with regulatory requirements. For tailored legal and strategic guidance, please contact our team.

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