Less than 1 month to go! Waiver details and important updates for the new Australian merger regime 

What you need to know

• The core of the merger control regime will commence as planned on 1 January 2026.
• Treasury has finalised the waiver notification form for the new merger regime. Requests for waivers will be available from 1 January 2026.
• The ACCC has released interim guidance on waivers, including the types of transactions that may be eligible for a waiver and how it will conduct the review. Importantly, waiver applications will largely be considered on the papers, and the ACCC will not engage with third parties (although all waiver applications will be listed on the ACCC's public register).
• New thresholds which will require acquisitions to be notified even where parties do not acquire control will not commence until 1 April 2026.
• Revised thresholds will apply to asset acquisitions from 1 January to 31 March 2026 and further revised thresholds will apply from 1 April 2026.

What you need to do

• If you are considering an acquisition that may require notification to the ACCC, consider whether a waiver may be appropriate and start gathering the information needed for your application.
• Look out for further updates as not all elements of the regime are yet in place and changes are still being made to substantive aspects.

Less than 1 month to go

While the core of the new Australian merger regime will commence as planned, on 1 January 2026, less than a month from its official start, some important aspects of the regime are still being finalised. This week, the content of the waiver application form has been finalised by Treasury and the ACCC has issued interim waiver guidance, which will play a crucial role in the new regime. Treasury has also confirmed that the new "control" thresholds will commence on 1 April 2026, instead of 1 January 2026. Further, the ACCC has announced that there will be changes to the thresholds as they apply to assets which will apply from 1 January 2026 and additional changes from 1 April 2026.

Finalised waiver details

Treasury has finalised the application form for the new waiver process which will start on 1 January 2026. The ACCC has also issued interim guidance on waivers and a version of the application form with guidance for parties.

Key points from these documents are as follows:

• Waivers are for straightforward acquisitions that do not raise material competition concerns. The ACCC has identified the following non-exhaustive list of circumstances when a waiver may be appropriate:
  • There is no or limited overlap, market definition is clear (or a decision can be made without reaching a view) and market concentration is low (e.g. 5%) across the narrowest plausible markets;
  • There are no vertical or conglomerate issues, or where there are such considerations, both the market concentration and market shares of each of the merger parties in the relevant markets are low (e.g less than 5%);
  • There are no complex scenarios or legal issues such as (i) potential loss of future competition (e.g. where the target is a potential new entrant or nascent competitor); (ii) market concentration is already significant or high; (iii) the target is a vigorous and effective competitor; (iv) a failing firm scenario; (v) complicated market definitions or the merger parties operate across multiple segments;
  • There is unlikely to be a risk of harm to consumers as a result of the acquisition; and
  • There are no issues that are likely to warrant consultation by the ACCC and/or inquiries with third parties.

  The ACCC interim guidance also indicates waivers may be appropriate for acquisitions involving assets where the asset is an input to a business (e.g. vacant land for a head office or warehouse) where assets of that type are not scarce, there are no barriers to rivals obtaining similar assets (e.g. planning barriers) and the counterfactual will not lead to a more competitive market.

• Waivers will be considered "on the papers". The ACCC will not go back-and-forth with the applicant to request further information, nor will it consult third parties. If the ACCC considers it cannot grant a waiver based on the information provided in the application, it will generally not grant the waiver and it may do so without further engagement with the applicant.
• Waivers do not require pre-engagement. While it will be possible to engage in pre-waiver engagement with the ACCC, in many cases it will not be necessary. It may be useful where there are parts of the waiver form that the parties are not able to complete or where a brief oral explanation for the ACCC might assist its consideration of the waiver application.
• The ACCC's decision is discretionary but will have regard to 4 mandatory factors. In deciding a waiver application, the ACCC will have regard to the object of the Competition and Consumer Act 2010 (Cth) (to enhance the welfare of Australians); the interests of consumers; the likelihood that, if the acquisition were put into effect, the notification thresholds would apply; and whether the acquisition would be likely to have the effect of substantially lessening competition in any market.
• Waivers must be decided in 25 Business Days. If the ACCC has not made a decision about a waiver application within 25 Business Days, the ACCC must not grant the waiver.
• Waiver details will be placed on the register. Details of most waiver applications and the ACCC's decision on them will be published on the ACCC's Acquisitions Register, but confidential waiver processes will be available for surprise hostile takeovers and certain voluntary transfers under the Financial Sector (Transfer and Restructure) Act 1999.
• Waiver application form requirements are detailed. Despite criticism that the proposed requirements of the waiver form were too onerous and did not meet the intended goal of reducing the regulatory burden on businesses, the finalised waiver form is largely unchanged from the exposure draft. Applicants for a waiver will have to provide details of the relevant goods or services supplied by the parties (where the acquisition would create an actual or potential horizontal or vertical overlap), a market definition or definitions (with supporting reasons) and identify other key suppliers. The form also requires estimated market shares of the applicants and other suppliers in the previous 12 month period (including details of how these estimates were made) as well as all transaction documents. These requirements will support the intended approach of the ACCC to gather all information upfront, rather than starting with less information and asking the parties supplementary questions where required. However, they will drive greater costs for businesses, even for simple acquisitions.

An important assessment will need to be made upfront as to the risks/benefits of opting for a waiver application as against seeking a phase 1 clearance.

Updates on new "control" thresholds and revised asset thresholds

Treasury has been consulting on various changes to the thresholds, including in relation to control and the treatment of asset acquisitions.

Control

This week, Treasury confirmed that the proposed new "control" thresholds will not come into effect until 1 April 2026. This is appropriate, given these are yet to be finalised.

The proposed control thresholds were released publicly on 21 October 2025, in an Exposure Draft of Competition and Consumer (Notification of Acquisitions) Amendment (2025 Measures No.1) Determination. Based on the Exposure Draft, these thresholds will require notification, even where you are not acquiring control, if the acquisition results in:

• increasing voting power in any non-Chapter 6 body corporate from 20% or below to more than 20%;
• increasing voting power in any body corporate from 20% or more to 50% or more;
• increasing voting power in a Chapter 6 body corporate from 20% or below to more than 20% (regardless of whether you already had control); or
• increasing voting power in a Chapter 6 body corporate from below 20% to 50% or more (whether or not control is held / obtained either before or after the acquisition).

This means that from 1 January 2026 to 31 March 2026, notification is not required if a share acquisition does not result in control. (Separate rules apply to major supermarkets.) From 1 April 2026, the above new rules will qualify the general position, meaning that notification may be required in certain circumstances even where you are not acquiring control. As the amending instrument is not yet finalised, businesses should be alert to any changes to the above position.

Asset thresholds

The ACCC has announced that the thresholds applicable to asset acquisitions contained in the 30 June 2025 Determination will be amended.

The full text of the amending Determination is not yet available and further changes may yet be made. At this stage (and based on the ACCC's Updated FAQs on the topic released on 3 December 2025) the key points are:

• The thresholds applicable to asset acquisitions in the 30 June 2025 Determination will be amended. The parts of the 30 June 2025 Determination which provided for an alternative attribution of 20% of the market value of the asset will be removed.
• From 1 January:
  • for asset acquisitions which are of "all or substantially all of the assets of a business" the Australian revenue of that business will continue to be relevant for the various revenue tests in the 30 June 2025 Determination; and
  • for asset acquisitions which are not of "all or substantially all of the assets of a business", only the existing transaction value test will continue to be relevant.
• From 1 April the above will continue to apply, but further revisions will be made as follows:
  • Additional transaction value thresholds will apply to asset acquisitions that are not of all (or substantially all) of the assets of a business. These additional thresholds are relevant to acquisitions of this type that are put into effect on or after 1 April 2026. These additional transaction value thresholds are not yet publicly available.

The core of the new regime will commence as planned, on 1 January 2026.

Reviews already underway

After a slow start, the regime is up and running (on a voluntary basis until 1 January 2026). The ACCC has completed a number of property-related reviews, including leases and agreements for lease. The ACCC is currently reviewing acquisitions in industries including petroleum refining and manufacturing; paint and coatings manufacturing; electronic equipment manufacturing; mining and construction machinery manufacturing and more. None of the voluntary notifications have yet moved into a Phase 2 review. We expect more parties will opt into the new regime as we get closer to 1 January 2026.

Want to know more?

• Ashurst Australian Merger Reforms hub