ACCC waiver applications - A new pathway for M&A from January 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 part of our two-part series, we explore the draft waiver process.

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. However, as we explore in more detail in part 2 of this series, without adjustments to the proposed process, these benefits may fall short of their full potential impact.

Key takeaways for businesses

The notification waiver is designed to ease regulatory requirements in cases where transactions pose minimal competition risks.  Despite this, applicants must still meet stringent disclosure requirements, including comprehensive market analysis and providing detailed transaction documentation.  To improve the likelihood of a successful waiver application, early engagement with ANZSIC classifications, relevant market data, and cross-border filing strategies will be essential.

What the waiver form requires

The application form sets out nine mandatory information categories:

• Parties – All acquirers, targets, and connected entities.
• Acquisition Summary – Non-confidential overview, ANZSIC industry codes, and goods/services descriptions.
• Transaction Details – Type of acquisition (horizontal, vertical, conglomerate, or business input), rationale, consideration, value, and cross-border filings.
• Thresholds – Whether notification thresholds are met, are not met, or may be met, with supporting reasons.
• Classes of Acquisition – Assessment against classes prescribed in the CCA.
• Relevant Goods/Services – Market definition, geographic reach, and competitors.
• Market Share Data – Revenue and share estimates for each supplier in the defined market.
• Transaction Documents – Key transaction documents (SPAs, HOAs, ancillary agreements).
• Declaration – Signed confirmation from authorised representatives of each principal party.

Bottom line

While the waiver pathway offers greater flexibility, businesses should prepare for significant upfront work to support applications.

In part 2, 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 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.