Australian regulator clarifies merger waiver requirements for private equity firms

Australia's competition regulator has clarified operational requirements for private equity firms navigating the country's newly enacted mandatory merger control regime, which represents the most significant overhaul of Australia's merger laws in over half a century. The regime, which transitioned from a voluntary system on 1 January 2026, requires notification to the Australian Competition and Consumer Commission (ACCC) for acquisitions meeting specified thresholds, fundamentally altering deal timing and compliance strategies for institutional investors.

The ACCC commenced accepting waiver applications on 12 January 2026, establishing a structured mechanism for PE firms to seek exemptions from mandatory notification. Each waiver application incurs an AUD $8,300 fee and must be submitted according to prescribed procedures. This mechanism provides deal flexibility for acquisitions that might otherwise trigger lengthy regulatory review periods under the suspensory regime. Transactions are subject to notification where the principal acquirer's Australian annual gross revenues exceed established thresholds; however, listed companies and unlisted companies with more than 50 members are exempt if acquisition of voting power remains below 20%.

The regulatory guidance published by the ACCC addresses several areas of uncertainty that emerged during the transition period. Notably, the clarification includes expanded exemptions relating to debt instrument acquisitions, reducing compliance burden in certain structured finance transactions common in private equity portfolios. The regime also grants the ACCC authority to scrutinize goodwill protection provisions—including noncompetes and restraints of trade—embedded in sale and purchase agreements, with discretionary power to declare that traditional goodwill exemptions under the Competition and Consumer Act 2010 do not apply if such provisions are deemed disproportionate to legitimate protective interests.

Private equity practitioners continue to seek greater clarity on how "change of control" definitions and monetary threshold calculations apply within multi-layered fund structures and continuation fund transactions. While government determinations have partially addressed these uncertainties, ongoing engagement between industry and regulatory authorities remains necessary to ensure the regime functions without materially chilling investment activity. The transition from informal to mandatory mechanisms represents a structural shift requiring enhanced deal engineering and timing considerations for Australian acquisitions.