On 3 September 2025, Treasury released its long-awaited Exposure Draft Instrument setting out the ACCC’s mandatory notification waiver form that will apply to the new ACCC mandatory notification regime. The Exposure Draft is open for consultation until 16 September 2025.
Why are waivers significant?
Parties will be required under the new regime to notify the ACCC of transactions which meet specified notification thresholds and that don’t benefit from an exemption – or risk their transactions being automatically void. However, from 1 January 2026, the ACCC can grant a waiver from the requirement to notify, which will provide certainty to parties that their transaction can validly proceed.
Applying for a notification waiver is voluntary. It will allow businesses to seek relief from the notification requirement where it is unlikely that their relevant acquisition would raise competition issues requiring further investigation, even if the transaction meets the notification thresholds.
The application fee for a notification waiver is $8,300 and the process is intended to expedite the ACCC’s consideration of straightforward transactions. A key benefit is the comparatively lower time and cost burden for businesses, as well as the potential to free up ACCC resources for assessing otherwise notified transactions.
As we have outlined in a previous alert, the ACCC will not consider wholly speculative transactions. However, parties may choose to engage upfront with the ACCC with a view to facilitating assessments of waiver applications they propose to make.
What’s in the proposed form?
The Exposure Draft contains several requirements for inclusion in the proposed waiver application form:
- Party details: information about each of the principal parties, targets, and their connected entities, including party name, ABN/ACN or equivalent identifiers, and contact information.
- Summary of the transaction: a plain language, non-confidential summary of the transaction. This includes a description of the parties and the goods and services each supplies, the industries in which these goods and services are supplied, ANZSIC references, and a description of the subject and structure of the transaction.
- Details of the transaction: the applicant is invited to provide any further information relevant to the transaction summary, the type of acquisition, the commercial rationale of the transaction, consideration for all shares and assets being acquired (in AUD), transaction value, and details of any related foreign filings.
- Basis for waiver: explanation of whether the transaction meets notification thresholds or falls within a specified class for which notification is required under the new regime, and any relevant supporting information and evidence.
- Goods and services supplied by parties to the transaction: a description of each good or service and where in Australia these are supplied, whether there are any other key suppliers in Australia, and market definitions for these goods and services.
- Market shares: for each market definition provided, the estimated market shares and revenue for each party and key competitors for the most recent financial year.
- Transaction documents: submission of all final or most recent transaction documents and related agreements.
- Declaration: a signed declaration by an authorised person of the applicant or of each principal party to the transaction, confirming the accuracy and completeness of the information provided.
How will applications for notification waivers be assessed?
If a notification waiver application is made, the ACCC may determine that the acquisition is not required to be notified, or it may choose not to make that determination (which would mean notification would be required). In making its determination, the ACCC must have regard to:
- the object of the CCA,
- the interests of consumers,
- the likelihood that the acquisition would occur in circumstances determined by the Minister as requiring notification, if any, and
- the likelihood that the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.
The ACCC must give its waiver determination in writing, including written reasons for its determination.
Is it workable?
The waiver application process is intended to enable transactions with no competition risks to avoid going through the Phase 1 review process (which itself attracts an application fee of $56,800).
However, the notification waiver application still requires the provision of extensive and detailed information regarding the transaction for which the waiver is sought. We see these requirements are imposing an unnecessary information burden on parties seeking a waiver, particularly where there are no competition concerns or competitive horizontal or vertical overlaps.
What’s next?
The ACCC has also recently updated its FAQs. While the FAQs are yet to provide further information in relation to the waiver mechanism and the proposed form, we anticipate that the ACCC will release further guidance once the proposed form is finalised.
Meanwhile, the ACCC has encouraged interested parties to provide feedback on the proposed notification waiver form here.