Waivers, Tribunal review and penalties for not notifying

A waiver is not suitable for every acquisition, and it is not an initial step before notification: if an acquisition raises material risks to competition or consumers, the ACCC says businesses should lodge a notification instead. The ACCC must consider four mandatory factors: the object of the Competition and Consumer Act, the interests of consumers, the likelihood that the notification thresholds would apply, and the likelihood that the acquisition would substantially lessen competition.

Its examples of where a waiver may be suitable include no or very limited competitive overlap with clear market definition and low concentration, no complex scenarios or legal issues, and no involvement in a serial or creeping acquisition. Applicants must give enough information up front; without it, the ACCC may decline the waiver without further engagement.

If no decision is made within 25 business days, the ACCC must not grant the waiver, and its decision is published on the acquisitions register within one business day of being made. The application fee is $8,300, and small businesses may be eligible for a fee exemption. A refused waiver leaves the notification route: where the thresholds are met, the business must notify and wait for approval. A granted one does not switch off section 50, the prohibition on acquisitions likely to substantially lessen competition.

The notifying party, if dissatisfied with an ACCC determination, can ask the Australian Competition Tribunal to review it, and the Tribunal may also let dissatisfied third parties apply. The application must be made within 14 calendar days after the ACCC’s reasons are published on the acquisitions register. The review is based on the information that was before the ACCC, though the Tribunal may take other information into account in some circumstances.

Under section 7-23 of the Notification of Acquisitions Determination (compilation in force from 1 January 2026), the fee to apply for review of an acquisition determination is the lesser of 0.12% of the deal’s value (the greater of the market value of what is acquired and the consideration for it) and $2,950,000. No fee is payable in some cases, including where the deal’s value is less than $50 million, the applicant is a small business entity, or the Tribunal finds the applicant cannot pay. The fee is due when the application is made. The Tribunal’s own fees page says payment is accepted by electronic funds transfer only.

Under section 51ABG of the Act, a notification becomes stale 12 months after the approval determination, unless the ACCC, on written request, extends that period by up to a further 6 months. In deciding, it looks at whether there are reasonable reasons the acquisition has not been put into effect, whether the market has materially changed, and whether a fresh notification would be more appropriate.

Two provisions of the Competition and Consumer Act do most of the work. Section 45AW is contravened by a principal party where an acquisition that is required to be notified is put into effect without having been notified. Section 45AY is contravened by putting into effect an acquisition that is stayed, which includes one that is notified but not yet finally considered.

The consequences differ. A notified acquisition put into effect while stayed is, under section 45AZA, void by force of the Act, and taken always to have been void, though the Federal Court may, on application, order under section 77D that the voiding is taken not to apply. For an acquisition that was never notified, section 77E says the Federal Court must, on the ACCC’s application, declare it void unless the Court believes that undesirable, and may make other orders such as divestiture. The ACCC may also seek injunctions, monetary penalties and orders disqualifying a person from managing a corporation.

The ACCC says it has a broad enforcement discretion when it learns of an acquisition that should have been notified but was not. The factors it may weigh include the size of the transaction or parties, the reasons it was not notified, whether there was genuine uncertainty about the requirement, whether the acquirer is prepared to offer a remedy, and whether action would be in the public interest. No single factor necessarily decides it. It says it may act where the businesses involved should have exercised appropriate due diligence, giving as examples businesses proposing to acquire a close competitor and large well-resourced corporations that should know the notification requirements.

Information about each notified acquisition, including written reasons for key decisions, is published on the ACCC’s acquisitions register, as are details of waiver applications and the ACCC’s decisions on them.