ACCC waiver application process consultation - A new pathway for M&A from 2026

Australia’s new merger regime is coming fast – and with it, a draft waiver process that could reshape how deals get done.  In this two-part series, we break down what business need to know now to stay ahead of the ACCC’s evolving expectations. 

As we highlighted in our March 2025 alert, Australia’s merger clearance framework is set to commence on 1 January 2026.

On 3 September 2025, Treasury released its long-awaited Exposure Draft Instrument setting out the ACCC’s proposed mandatory notification waiver form that will apply to the new ACCC mandatory notification regime, set to take effect from 1 January 2026. While the waiver form remains in draft, it provides a preliminary framework for businesses seeking an exemption from full notification requirements. The final version of the waiver form is expected to be released in Q4 2025, giving stakeholders time to prepare for the new process.

From 1 January 2026, businesses undertaking mergers and acquisitions may be able to seek a waiver from the ACCC instead of completing a full mandatory notification.

In this first article in our two-part series, we explored the waiver application process. In this second part, we highlight key areas Treasury should consider following the consultation on the draft waiver application process. We’ll also share our recommendations for refining the framework to better address competition concerns – without unnecessarily hindering M&A activity in Australia, which in some cases could ironically reduce competition.

Why it matters

The new waiver regime is designed to streamline the assessment process for transactions that are unlikely to raise competition concerns, while still requiring applicants to submit detailed supporting information. This approach could offer a faster and lower-cost alternative to the standard merger notification process.

While we support the objective of streamlining competition oversight, the current proposal risks imposing disproportionate costs, administrative burdens, and confidentiality concerns on transactions that pose no genuine competition issues.

More specifically:

• The absence of a standing exemption certificate (EC) regime, creating unnecessary duplication of applications and costs for corporate groups undertaking multiple acquisitions.
• The loss of confidentiality resulting from mandatory public disclosure of waiver applications prior to deal completion, and the myriad of adverse impacts this may result in.
• The disproportionate information burden, which substantively mirrors the notification requirements of a short form notification in some respects.
• The requirement to disclose complete transaction documents (final or most recent) for waiver purposes, which is unnecessary and raises confidentiality concerns.

We recommend adjustments to ensure that the waiver regime is proportionate, efficient, and does not inadvertently harm competition, investment or deal certainty.

Absence of standing exemption certificates

Unlike the FIRB regime, there is no current ability to obtain a standing exemption certificate (EC) to cover multiple transactions by a corporate group over a period. The absence of such a mechanism may impose significant duplicative costs on groups that operate across multiple subsectors and routinely undertake bolt-on acquisitions.

Benefits of a ECs include:

• Regulatory efficiency: reduces repetitive filings for routine, low-risk transactions.
• Commercial certainty: gives businesses confidence to execute strategic acquisitions quickly.
• Better data: ACCC still receives periodic reports, but without being bogged down in low-risk cases.

Like FIRB’s approach, the ACCC could define categories of acquisitions that are eligible, subject to upfront review, for example:

• Industry scope: Applied to acquisitions in industries the ACCC has assessed as low‑risk for competition concerns (e.g. highly fragmented sectors).
• Transaction size threshold: Limited to acquisitions below a defined transaction value (or combined turnover/revenue threshold) but above the de minimis exemption, to avoid trivial filings.

In addition, the ACCC could consider:

• Conditions of use: Even when exempt, the holder could be required to submit a short‑form notice post-completion (or quarterly summary) so the ACCC maintains visibility.
• Register of certificates: Public register of exemption certificates (with non-confidential details) could be maintained.
• Revocation power: ACCC could give itself the power to revoke a certificate if acquisitions under it begin to raise competition concerns.

Loss of confidentiality

The ACCC proposal to publish details of waiver applications (including party names and potentially price/transaction details) prior to deal completion raises serious concerns.

While the ACCC’s objective is to promote transparency, requiring mandatory pre-completion disclosure carries a real risk of deterring efficient deals and reinforcing the dominance of existing market players. In some markets, it could actually dampen competition by deterring M&A activity that could otherwise strengthen emerging rivals.

Instead of improving transparency and oversight, premature disclosure could harden market positions:

• Larger incumbents with more resources can use the information to block or undermine challengers’ deals.
• Smaller or mid-tier competitors may be deterred from pursuing acquisitions that would help them grow into effective rivals.
• Market structure may become more static, entrenching dominant players, rather than dynamic with new entrants scaling up through mergers.
• Additionally, early disclosure provides competitors with advance notice of sensitive transactions, potentially compromising commercial confidentiality.  It may also jeopardise deals that are still subject to other conditions precedent, creating uncertainty and undermining deal viability.  In some cases, it could lead to the publication of misleading information – particularly when consideration is deferred – further complicating the transaction landscape and distorting market perceptions.

In respect of companies listed on the ASX, early-stage deals may be kept confidential under the carve-outs in LR 3.1A if:

1. the information concerns an incomplete proposal or negotiation
2. it remains confidential, and
3. a reasonable person would not expect disclosure.

But mandatory public disclosure of waiver applications could also undermine limb (2) — confidentiality. Once confidentiality is lost, the company can no longer rely on LR 3.1A to withhold disclosure. That means even an early-stage deal could force an immediate market announcement, well before board approvals or binding documentation.

There is a case for the draft process to be amended so that publication of waiver applications would be restricted unless the ACCC considers the transaction poses competition concerns, and in those instances withhold price/consideration details until after completion.

Disproportionate information burden

The waiver application requires detailed information including party descriptions, ANZSIC codes, industry context, vertical/horizontal classification, market definitions, market shares, and machine-readable data. The types of information required for a waiver application is, based on the draft form, substantively similar in many respects to a full notification – under a short form notification – undermining, to some extent, the purpose of a waiver.

A compromise that balances the need for information against the imposition of providing it, is to amend the draft process to scale information requirements based on transaction risk and size. For low-risk transactions, limit requirements to high-level descriptions without detailed market share data.

Mandatory transaction document disclosure

The waiver application requires applicants to provide final or most recent versions of all transaction documents. This is arguably disproportionate for waiver applications, where the regulator is not actively reviewing substantive competition risks. It also raises confidentiality concerns and increases administrative costs.

These concerns and costs can be mitigated by limiting documentation requirements to a summary term sheet, with full documents required only for substantive notifications.

Why Sparke Helmore

The ACCC is re-writing the rules. If M&A is on your radar, now is the time to rethink your strategy. Get in touch with our senior team to future-proof your deal pipeline.