New ACCC Merger Guidance For PE Fund Notification Waivers – Finding The Balance In Disclosure

The ACCC’s FAQ guidance released on 22 June 2026 sets out its expectations for the disclosure by private equity funds in applying for notification waivers under the new mandatory notification merger regime. In this client update, we discuss how PE funds could approach striking a balance between providing sufficient disclosure to persuade the ACCC to obtain the waivers sought while managing legal privilege considerations. 

In brief: 

• Use of notification waivers by PE funds are proving a commonly used pathway to obtain regulatory certainty for transactions that present no substantive competitive concerns. 
• The ACCC’s new guidance reveals an expectation that PE funds provide broader disclosure when seeking notification waivers, beyond what the waiver form strictly requires. This includes identification across fund strategies of controlled portfolio companies that operate in same/similar markets (even if not strictly “connected entities”), and substantiation on “connected entity” exclusions, and information on PE investors in the acquirer.
• While the ACCC guidance does not impact the “connected entity” analysis itself (undertaken to test whether the transaction meets the financial metrics for notification), the expectation that PE funds substantiate any “connected entity” exclusions in its waiver application highlights the fact that a PE-backed acquirer’s connected entity determination is not straightforward.
• In certain cases, the connected entity determination for a PE-backed acquirer may result in exclusions of portfolio companies as “connected entities” (that in turn means that a transaction may technically not be notifiable and/or impact disclosure in the waiver form).
• Legal privilege considerations on sharing analysis regarding “connected entity” determinations should be balanced against satisfying the ACCC’s expectations of disclosure to obtain approvals for notification waivers. 

Notification waivers by private capital-backed acquirers are a large proportion of waiver applications 

Since the mandatory notification merger regime commenced on 1 January 2026, ~78%  of ACCC notification applications by private equity and superannuation funds have been processed as notification waivers (rather than Phase 1 notifications), representing ~43% of notification waiver applications overall.  

This is unsurprising. The scale of PE funds and their portfolio companies mean that the mandatory notification threshold tests are readily met. 

The high proportion of waiver applications by private capital investors reflects the prevalence of “technical filings” to de-risk transactions that have no substantive competition concerns, and the chosen pathway of waivers avoids the more onerous process of a formal notification and assessment.

Outcomes to date have underscored this: most of the waivers have been granted on the basis of no/low overlap and the absence of any vertical concerns or “conglomerate” issues (i.e., holdings in adjacent industries or across eco-systems). 

ACCC disclosure expectations widened: overlapping portcos, PE investors in acquirer and connected entity substantiation

The ACCC’s new guidance indicates that it expects PE funds to conduct an overlap analysis across all fund strategies managed by the same private equity firm and disclose all portfolio companies that operate within the same or related markets as the target. This may extend to capture controlled portfolio companies that are held in an entirely different fund than the fund that holds the acquirer.  

Example provided in the FAQ:

Where a PE fund is acquiring a regional hospital network and the same firm separately manages a fund with a controlling stake in a medical diagnostics company, information about the diagnostics company must be provided to the ACCC notwithstanding that it is held through an entirely separate fund and portfolio investment.

The ACCC also expects disclosures on the private equity investors in the acquirer who will have the ability to influence decision-making post-acquisition, for example because they hold management rights.

Separately, the new ACCC guidance asks that a waiver applicant provide information to substantiate any claims that entities are not a "connected entity" of a party to the acquisition, even though those entities are affiliated or associated (for example, because they are another fund managed or advised by the same private equity firm). A bare assertion will not suffice.

ACCC disclosure expectations for PE fund waivers extend beyond strict legal requirements 

The prescribed form for a waiver does not require a delineation of connected entities and other entities that parties have an interest in (but do not meet the connected entities test), or to explain why some entities have been excluded as “connected entities”. 

The information requirements for a waiver are prescribed under the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) (Ministerial Determination). 

Division 5 of the Ministerial Determination provides the prescribed form for lodging a waiver, which asks for various information regarding the transaction parties, including:

• Identifying the parties to the acquisition (question 1).
• Providing an ANZSIC class code and title for each party to the acquisition, and a description of the goods or services they each supply, focussing on the goods or services most relevant to the acquisition (question 2).

The form makes clear that each reference to the “parties to the acquisition” above includes their respective “connected entities”. 

Lodging a waiver application also requires indicating if one of the mandatory notification thresholds is triggered, “brief reasons with reference to each specified threshold, together with supporting information and evidence” (question 4). The notification thresholds are based in part on revenue of the transaction parties across their connected entities.

Recap: what is a connected entity and how is this relevant for PE-backed acquirers? 

An acquirer’s connected entities broadly captures:

1. related bodies corporate (holding companies, subsidiaries and co-subsidiaries); and
2. entities linked through control (being entities that control, are controlled by, or are under common control with the acquirer). This engages the Corporations Act definition of “control”, with two key modifications: (a) when considering controllers and controlled entities of the acquirer, “control” includes “control with associates”, and; (b) when considering controllers of an SPV acquirer, fiduciary obligations that ordinarily disapply control are disregarded. 

The application of these tests is not always straightforward for PE-backed acquirers. PE fund structures frequently feature trusts, partnerships and management structures which do not always fit neatly within Corporations Act “control” and related body corporate concepts and carry an overlay of fiduciary obligations. 

In some cases, a strict application of the “connected entity” determination may result in the exclusion of portfolio companies held within the same fund strategy (and across all other fund strategies), as well as entities within the private equity fund manager structure (separate from the funds themselves), particularly for bolt-on acquisitions by operating entities where the fiduciary duty carve-outs to the relevant tests apply. 

This analysis will impact the decision of whether a PE-backed acquirer will proceed without a notification waiver because monetary thresholds are not met (on a strict application of the “connected entity” determination). However, it is also relevant when a notification waiver will be sought, including:

• where monetary thresholds are not strictly met but a waiver is being sought to provide certainty, the PE-backed acquirer will need to decide how to answer the question whether mandatory notification thresholds are triggered. This necessarily engages whose revenues are in scope (and who the acquirer’s connected entities are), and becomes challenging where there is a good legal basis for exclusions from the connected entity list; and
• in any event, the PE-backed acquirer will need to decide how to meet the ACCC’s expectations outlined in its new guidance on substantiating any “connected entity” exclusions (even if those exclusions would still result in the monetary thresholds being met).

Mapping out a PE fund’s connected entities is critical to ensuring correct and consistent information is provided and notifications (or waivers) are made where necessary

For any PE-backed platform or bolt-on acquisition, a key first step when approaching ACCC notification of a transaction is mapping out the full fund structure to determine the acquirer’s connected entities, so as to be able to identify the acquisition parties’ connected entities in the prescribed form as required. It will also be a key first step to establishing whether the monetary notification thresholds are met by the transaction given the relationship between these thresholds and the parties’ consolidated revenues across connected entities of the acquirer and target. 

The Competition and Consumer Act 2010 (Cth) also includes new penalties for misleading the ACCC in respect of any material particular under the new merger regime. Parties run the risk of breaching this provision where a failure to disclose could result in the ACCC being misled. 

The PE fund’s mapping-out process to establish connected entities is therefore important not only to ensure the forms are filed on the correct basis from the outset (and consistently across transactions), but also to ensure there are no material gaps in the disclosures being made to the ACCC.

Risks in waiver of privilege in over-disclosure? 

As explained above, for PE-backed acquirers, the connected entity mapping out exercise will involve complex legal questions of “control”. 

If at the end of that analysis a PE firm decides that some entities are not “connected entities” of the acquirer in a relevant transaction, the prescribed waiver form does not require those entities, or the reasons they were excluded, to be disclosed. 

The new ACCC guidance prompts the question though: how far do you need to go in disclosing to the ACCC to obtain the waiver in a PE context? 

Particular care should be taken when disclosing analysis or views in this regard if it could involve disclosing legal advice, or the substance of such advice.  

The recent decision of the Full Court of the Federal Court of Australia in Mastercard Asia Pacific (Australia) Pty Ltd v ACCC provides a recent reminder of the need to take care in dealings with regulators in relation to matters that are the subject of confidential and privileged communications. The proceedings arose in the context of the ACCC’s enforcement proceedings against Mastercard for alleged anti-competitive conduct regarding its payment scheme and its agreements with merchants.  In that context, in the lead up to trial, Mastercard served affidavits from witnesses who deposed to their understanding of the purpose of the Mastercard scheme and merchant agreements, and that in their understanding these were not unlawful.  The ACCC made an application based on these affidavits to compel Mastercard to produce documents which Mastercard claimed were confidential and subject to legal professional privilege.  

The ACCC challenged the privilege claims made by Mastercard over these documents on the basis that the statements in the affidavits amounted to an implied waiver of privilege over those documents. 

The ACCC's challenge was successful at first instance and upheld by the Full Court on appeal. Applying the well-settled principles of waiver, the Full Court found that the fact Mastercard “[put] in issue a subject-matter by making positive assertions” whilst maintaining confidentiality in relation to the documents recording views on the subject-matter was sufficient to amount to an implied waiver.  

Insofar as legal advice may have been used to inform an assessment as to whether an entity meets the connected entity requirements, PE funds should carefully scrutinise any submission or response they propose to provide to the ACCC to ensure that it does not inadvertently result in disclosing legally privileged advice as to how the PE fund arrived at its views.

Getting the balance right

The ACCC’s power to grant waivers from the new merger regime is discretionary. In its waiver guidance, the ACCC has said that waivers will be “most appropriate for straightforward acquisitions that are capable of being assessed based on the information provided... without the need for further investigation.”

PE firms seeking to avoid the more onerous requirements of a formal notification and Phase 1 assessment process will need to prepare waiver applications that clearly give a basis for the ACCC to be comfortable that it can make a decision on the waiver, based on the information in the application alone. Where the ACCC is not satisfied it is likely to reject the application for a waiver.

Often that may be straightforward if the fund structures are not overly complex and the PE firm does not have to contend with issues regarding a broad array of connected entities (and non-connected entities where the PE firm nevertheless has some role). In many cases though that will not be the case, and so the new ACCC guidance may change the PE firm’s assessment of whether to: 

• stick to only the required disclosures in the prescribed form, and relying on any analysis as to what should be connected and what is not (without disclosing the thinking behind this in the application); or 
• opting for greater disclosure to satisfy the new ACCC guidance, even if that risks resulting in providing internal workings or legal advice to substantiate what entities may be  connected to the acquirer and those that are not. 

Finding the right balance between the two will take a nuanced approach and one that is careful to avoid any risk of being said to mislead the ACCC.

Footnote

1 Based on a review of the acquisitions register between 1 January 2026 and 25 June 2026, and where it is clear from the face of the register that the acquiring group involves a private equity fund or superannuation fund (because it is listed as an acquirer), applications involving private equity funds or superannuation funds represent 99 out of 230 waivers and 27 out of 132 phase 1 notifications applications. It is possible this under-captures transactions involving private capital (e.g. where only the direct acquirer was listed, or where the private capital sponsor was listed as an “Other Party” and it is not immediately apparent).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.