From 1 January 2026, Australia will become a mandatory and suspensory merger control regime. Businesses must notify the Australian Competition and Consumer Commission (ACCC) of acquisitions that meet specified thresholds and cannot complete these acquisitions without approval. To streamline approval for low-risk deals, a waiver notification process has been established.
What is a notification waiver?
A notification waiver is an ACCC decision that an acquisition does not need to be reported, even if it meets the notification thresholds established under the Competition and Consumer Act 2010 (Cth) (CCA) and the Competition and Consumer (Notification of Acquisitions) Determination (Determination). This process provides a quick and inexpensive way for acquisitions unlikely to affect competition or harm consumers to proceed without being in breach of notification obligations.
Importantly, the waiver process is not an alternative for all transactions, particularly those that raise competition issues. It should also not be considered a first step in the clearance process where there are overlaps that will require more detailed consideration. Waivers are appropriate for straightforward acquisitions that can be assessed quickly based on upfront information, without further investigation or third-party consultation.
When might a waiver be appropriate?
The ACCC has indicated that a waiver may be considered where there is:
- no or minimal competitive overlap, combined with very low market share (e.g., ~5%) and many alternative suppliers
- no vertical or conglomerate concerns, or both parties have very low market shares
- No complex scenarios, such as:
- potential loss of future competition (nascent competitors or likely entrants)
- high market concentration or vigorous competitor status
- failing firm situations
- complicated multi-segment markets
- no risk of consumer harm
- no need for third-party inquiries
- asset acquisitions where assets are not scarce and rivals can easily obtain similar assets
Waiver information requirements
The information requirements for a waiver application are still substantial and include details of:
- the Parties to the acquisition and the goods, services and industries involved
- acquisition and transaction information, including type of acquisition (horizontal, vertical, conglomerate, business input), commercial rationale, consideration, transaction value, related filings in other jurisdictions
- the threshold met and any exemptions
- the effect on competition, including for each relevant good/service with horizontal or vertical overlap, description and geographic supply areas, key suppliers in Australia, relevant market definitions and reasons, market share estimates for each party and key competitors (based on revenue for the last 12 months and including any underlying data in machine-readable format).
Final or most recent transaction documents, a list of related agreements, and a declaration by an authorised person confirming the accuracy and completeness of the application must also be included for the application to be valid.
Process and timelines
Waiver applications will be assessed from 12 January 2026 with an application fee of AUD$8,300 per acquisition. Applications are submitted online and the process is public with determinations published on the acquisitions register.
The ACCC is required to make its decision within 25 business days. If a decision is not made, the ACCC must not grant the waiver. Where the parties meet the notification thresholds, the principal party will be required to re-notify the transaction under a Phase 1 review.
Importantly, waivers do not provide statutory protection, cannot cure stale acquisitions (previously notified but not completed within 12 months) and are not available for transactions outside the definition of “acquisition” under the CCA.
Key takeaways
Whether the new merger control regime applies should be assessed early. Taking the correct approach will be critical in meeting deal timelines. If thresholds are met, an assessment will need to be made as to whether the transaction is truly low risk from a competition law perspective to determine if a waiver is appropriate.
Information is still required to be robust and insufficient information may lead to refusal. It will be important to plan for contingencies in deal completion timing and assess the extent to which statutory notification is required by the parties as conditions to completion.
The waiver process will assist with streamlining truly no risk transactions. Any acquisition that raises any element of competition assessment will need to be considered carefully to ensure that a waiver is the most appropriate avenue under the mandatory merger control regime.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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