Merger Notification Waiver Form—Exposure Draft

Submission Date: 18 September 2025

The Competition and Consumer Law Committee of the Business Law Section of the Law Council of Australia (the Committee) welcomes this opportunity to engage with the Competition Taskforce (Taskforce) in response to the exposure draft (Exposure Draft) of the proposed Merger Notification Waiver Form (waiver application form).

Observations from Committee

The Committee is concerned that the information required by the waiver application form is too burdensome, and inconsistent with the purpose of the waiver process. As set out in the Explanatory Memorandum, the waiver process is “intended to reduce the regulatory burden on businesses while ensuring that all acquisitions with potential competition concerns remain subject to the Commission’s review”.¹

In the context of the broad range of notifiable transactions, the waiver mechanism is a critical tool to ensure that the regulatory reach of the mandatory regime does not, via the imposition of additional costs time, deter legitimate business activity where there is no risk of harm.

The role of the waiver mechanism is also acknowledged by the ACCC, as intended:

• ‘to be an efficient means of considering straightforward matters quickly and with a low burden on business’;²
• to be a low burden on business;³
• to be flexible;⁴
• to provide a mechanism for acquisitions that ‘do not raise competition risks that need further investigation’;⁵ and
• to allow the ACCC to make decisions so that simple transactions that raise minimal concerns have a rapid and cheaper path to receive certainty.⁶

As the ACCC recognises, the types of acquisitions that will be facilitated by the notification waiver process are those that do not raise competition risks, or are unlikely to meet the monetary thresholds.⁷

Given the wide and flexible role of the waiver process and form, we submit that it should be capable of being understood and completed by businesspeople without the need for legal advice and especially by competition law specialists. The current framing of the notification includes complex and difficult economic and legal concepts, legalistic language, and references that would not be able to be understood by a person who was not familiar with the regime and the legislation itself. This will undermine the waiver form’s effectiveness.

The Committee suggests that each question and each request for information in the form is framed by Treasury on a working assumption that it is being prepared by a businessperson with limited, if any, knowledge of the technical aspects of the regime and without specialist legal input. If this means that the form is not as comprehensive as is required, from time to time, the ACCC can request more information following initial engagement.

In this context, while the Committee recognises the need for the ACCC to consider relevant facts related to the acquisition, as required in items 2 and 3, the waiver form should not require the detailed information requirements set out in items 6 and 7 of the proposed form relating to the requirement to describe all relevant markets and the shares in which the parties supply or potentially supply relevant goods or services. Market definitions and shares are highly complex legal and economic concepts. While recognising that the proposed form reduces the market share data from 3 years to one, waiver applicants would not typically have such information readily available; to be required to provide such detail where there is limited or no competitive overlap will add unjustifiable time and cost to applications and largely remove the ability of businesses to complete the application without significant input from specialist competition advisers, and (potentially) economists. This burden is at odds with the purpose of the waiver mechanism and risks deterring transactions that are benign and potentially welfare-enhancing while raising no competition risk.

The Committee notes that, by virtue of section 51ABV(4) of the CCA, the Minister may by legislative instrument provide for review by the Tribunal of waiver determinations. The draft instrument has not made any provision for this, nor identified any requirements that the Commission must comply with under section 51ABV(2) beyond having regard to the items set out in section 51ABV(2)(b)(i)–(iv).

Table 1 in the submission compares the questions in both forms.

There is an opportunity to make this process more efficient and we propose amendments to the form in section 0 of the submission in that context.

^{1 [EM at 2.74]
2 ACCC, Merger process guidelines (Interim version) (30 June 2025) at [3.6]; see also Explanatory Memorandum, Treasury Laws Amendment (Mergers And Acquisitions Reform) Bill 2024 at [1.34].
3 ACCC, Merger process guidelines (Interim version) (30 June 2025) at [3.6]; see also Explanatory Memorandum, Treasury Laws Amendment (Mergers And Acquisitions Reform) Bill 2024 at [2.74].
4 ACCC, Merger process guidelines (Interim version) (30 June 2025) at [3.2]; see also Explanatory Memorandum, Treasury Laws Amendment (Mergers And Acquisitions Reform) Bill 2024 at [2.74].
5 ACCC, Merger process guidelines (Interim version) (30 June 2025) at [3.2].
6 ACCC, Regulatory reform opportunities: ACCC response (1 August 2025) p16.
7 ACCC, Merger process guidelines (Interim version) (30 June 2025) at [3.2].}

Last Updated on 30/09/2025

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