Submission on the Merger notification waiver form – exposure draft

The Business Council of Australia (BCA) welcomes the opportunity to provide a submission on the Merger notification waiver form – exposure draft.

The BCA represents and advocates for its members, comprising some of Australia’s largest and best-known employers. We are a member-led organisation, and our submissions reflect engagement with those members and the expertise and practical experience they bring.

With the passage of the Treasury Laws Amendment (Mergers and Acquisition Reform) Act 2024, businesses are preparing for the commencement of the mandatory notification regime from 1 January 2026. We acknowledge and appreciate the time Treasury and the ACCC have devoted to consultation on this reform package, including the important role of the waiver process.

The Treasurer has rightly observed that “most mergers have genuine economic benefits and are an important feature of any healthy, open economy.” A well-designed waiver mechanism must ensure the new regime does not increase regulatory burden and compliance costs for beneficial or low-risk transactions, or transactions that will have no effect on competition, thereby undermining productivity, dynamism, and investment. The Explanatory Memorandum to the Act explicitly recognises this balance, stating:

“To increase certainty and support efficient administration of the new system, the amendments also provide for parties to seek a notification waiver from the Commission … The notification waiver process offers a flexible mechanism for parties to seek relief from the notification requirement. This 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”.

We also welcome the ACCC’s acknowledgment that most acquisitions are not anti-competitive and should therefore be assessed quickly, along with its stated intention to design a notification waiver mechanism that enables certainty for simple, low-risk transactions.

Despite the strong policy intent underpinning the waiver process, the exposure draft waiver application form, in its current state, risks undermining those goals due to complexity, ambiguity, and excessive information requirements.

In our submission, we set out observations and recommendations addressing the following:

1. Clarify Eligibility for Waiver Pathway
2. The Waiver is Not a Fast-Track Notification – Reduce Excessive Information Requirements
3. Align with International Best Practice
4. Timing and Usefulness of the Waiver Process
5. Confidentiality Protections

Read our full submission here.