Background on the notification waiver
From 1 January 2026, Australia’s new mandatory merger notification regime comes into force. Parties cannot complete notifiable mergers until 14 days after the Australian Competition Consumer Commission (ACCC) makes a decision to clear the transaction – unless a waiver is obtained. The waiver process allows parties to apply to the ACCC to waive this notification requirement for acquisitions that are unlikely to meet the notification thresholds or that do not raise competition risks that require further investigation.
Treasury has now released its final version of the waiver notification form. At the same time, the ACCC released its Waiver Notification Form and Guidance as well as Interim Guidance on waiver notifications.
Notification waiver process
The ACCC explains that waivers are intended to provide a fast and efficient pathway for transactions that do not raise any plausible competition risks. The ACCC considers that applications should be capable of being assessed on the face of the waiver application, without iterative information requests or third‑party consultation. Unlike the pre‑assessment process, the ACCC does not expect to engage substantively with applicants. If the ACCC decides it cannot grant a waiver on the information provided, it may refuse to grant the waiver and the parties will need to notify. Parties do not need to engage with the ACCC prior to submitting a waiver application (unlike a short form notification, where the ACCC expects a minimum two-week pre-notification engagement period).
Another development is that only decisions to grant waivers are published – not applications. The ACCC must make a decision within 25 business days of receiving the application; if no decision is made within 25 business days, the ACCC must not grant the waiver. Once a decision is made, the ACCC will give the applicant written notice of the determination, including its reasons, and must publish its determination on the Acquisitions Register within one business day.
Parties that use the notification waiver mechanism need to pay a fee of $8,300 (compared with $56,800 for a short form filing).
When a waiver may be appropriate
In deciding a waiver application, the ACCC must have regard to four mandatory factors:
the object of the Competition and Consumer Act 2010 (Cth) (CCA), namely enhancing the welfare of Australians through the promotion of competition and fair trading and the provision for consumer protection;
the interests of consumers;
the likelihood that, if the acquisition were effected, the notification thresholds would apply;
the likelihood that the acquisition would, if effected, have the effect or be likely to have the effect of substantially lessening competition in any market.
The ACCC also identifies the following non-exhaustive circumstances in which a waiver notification may be appropriate:
There is no or very limited competitive overlap, market definition is clear (or the decision can be made without reaching a view on market definition) and market concentration is low. For example, where the acquisition would result in a low combined market share (such as 5%) across the narrowest plausible markets in which the businesses supply the same goods or services and there are many alternative suppliers available.
There are no vertical or conglomerate issues or, where there are vertical or conglomerate considerations, both the market concentration and market shares of each of the merger parties in the relevant market(s) are low (for example, market shares of less than 5%).
There are no complex scenarios or legal issues, such as:
a potential loss of future competition, such as where the target is a potential new entrant (or is a nascent competitor with the potential to expand) in the acquirer’s market, or the acquirer might be a potential entrant or nascent competitor in the target’s market (such as an overseas company that would be likely, absent the acquisition, to enter the Australian market in which the target operates)
market concentration is already significant or high
the target appears to be a vigorous and effective competitor
a failing firm scenario, or
complicated market definitions or the merger parties operate across multiple segments.
There is unlikely to be risk of harm to consumers as a result of the acquisition.
There are no issues that are likely to warrant consultation by the ACCC and/or inquiries with third parties.
Waiver application versus short form application
While the final waiver application form has been refined as compared to the version subject to consultation, the changes are limited. The main substantive changes are that parties no longer need to submit copies of foreign regulatory filings, while parties now only need to provide details of the relevant goods or services where the acquisition would create an actual or potential horizontal or vertical overlap between the parties.
Parties are still required to provide information on:
the acquisition, including a description of the goods or services supplied by the parties and the commercial rationale
market definitions, accompanied by a statement of reasons and information on key suppliers
estimated Australian revenue and market shares for the prior 12-month period
transaction documents.
While the form requirements are detailed, they are less burdensome than the requirements under the ACCC’s short form application. We note the following key differences:
Parties are not required to provide information on relevant past transactions.
The information required in connection with relevant goods and services is broader in the short form, including because the definition of ‘relevant goods or services’ has been narrowed in the waiver context to exclude information on goods or services in adjacent markets.
Parties are only required to provide 12 months of Australian revenue and market share, as compared to three years of data for the short form. However, the waiver form only requires market shares based on revenue, as opposed to the short form which also requires market shares based on volume and capacity.
Parties are not required to provide competitor or customer contact information.
Parties are not required to provide information on goodwill protection provisions or provide audited financial reports, income statements or organisation charts.
The fee for a waiver application is $8,300, as compared to $56,800 for a short form application.
What does this mean for merger parties?
We expect this process will be used frequently where there are no or very limited overlaps and the target has limited revenues in Australia, However, merger parties and practitioners will need to be pragmatic when considering whether the waiver process is appropriate for their transaction. If the ACCC determines it cannot grant a notification waiver, parties will need to pivot quickly and submit a notification (assuming transaction thresholds are met). This will have significant implications for transaction timing and deal planning. Parties will need to consider carefully whether a waiver application is appropriate in their particular circumstances early in the transaction process.
Australia’s new merger reforms have commenced and mark the most significant overhaul of Australia’s merger control framework in decades.
What’s next?
On 1 December 2025, the Australian Government announced that the new asset thresholds and control thresholds will commence on 1 April 2026. This delay gives businesses time to prepare for these aspects. The core merger control regime commences as planned on 1 January 2026. The final provisions are expected to be registered on the Federal Register of Legislation in mid-December 2025.
We will publish more detailed updates as further information becomes available.