Insurance Acquisitions and Takeovers (Public Interest) Determination 2024

The instrument revolves around four interlocking concepts derived from the Act and given content by this Determination: fit and proper person, position of influence over a company, undue concentration of power, and contrary to the national interest. Each is defined or described in discrete provisions.

• Fit and proper person (s 5). The Determination lists eight matters to be determined when assessing fitness and propriety: honesty, integrity and reputation (s 5(1)(a)); competence and capability with regard to the degree of control or influence to be exercised (s 5(1)(b)); sound financial position (s 5(1)(c)); conflicts of interest that pose material risk to ongoing operations (s 5(1)(d)); reasonable grounds for suspecting the person has committed, or is at risk of committing, a financial crime (s 5(1)(e)); for companies, prudential conduct and compliance with prudential standards as determined by APRA under the Insurance Act 1973 and the Life Insurance Act 1995 (s 5(1)(f)); whether APRA’s ability to effectively supervise the insurer is likely to be adversely affected (s 5(1)(g)); and the potential for the person to be influenced by another person who is not fit and proper (s 5(1)(h)). The Determination also states that “all relevant matters” are to be determined for the complementary subparagraph (s 5(2)).

• Position of influence (s 6). The instrument prescribes circumstances in which a person is “taken to be in a position of influence” over an Australian‑registered insurer: control of 15 per cent or more of voting power (s 6(a)); directors who are accustomed or obliged to act in accordance with the person’s directions or wishes (s 6(b)); power to appoint or remove a director (s 6(c)); being a director (s 6(d)); and taking part in the company’s management (s 6(e)). The Determination applies these criteria “under subsection 5(2) of the Act” and frames them for the purposes of paragraph (1)(b) of the Act.

• Undue concentration of power (s 7). For subparagraph 5(4)(c)(i) of the Act, the Determination identifies as relevant any matter that could adversely affect the supply or pricing of insurance services or the supply or pricing of other financial services to the Australian market (s 7(1)(a)(i)-(ii)). It also provides that “all relevant matters” are to be determined for the complementary subparagraph (s 7(2)).

• Contrary to the national interest (s 8). For subparagraph 5(4)(d)(i) of the Act, the Determination identifies matters that could adversely affect the stability and strength of the Australian general or life insurance industries or the Australian financial system (s 8(1)(a)); matters that could adversely affect the interests of policy holders of an Australian‑registered insurance company (s 8(1)(b)); and matters contrary to Australia’s foreign investment policies (s 8(1)(c)). Again, it provides that “all relevant matters” are to be determined for the complementary subparagraph (s 8(2)).

Other important framing features:

• The instrument incorporates external regulatory reference points by reference. It explicitly connects APRA’s prudential standards (as determined under the Insurance Act 1973 and the Life Insurance Act 1995) to the fitness assessment for companies (s 5(1)(f)); and it requires consideration of APRA’s ability to supervise (s 5(1)(g)).

• The Determination relies on definitions and expressions in the Act. Section 4 states the instrument’s note that “Expressions have the same meaning in this instrument as in the Insurance Acquisitions and Takeovers Act 1991 as in force from time to time,see paragraph 13(1)(b) of the Legislation Act 2003.” It also defines the shorthand “the Act” as the Insurance Acquisitions and Takeovers Act 1991.

• The Determination is a schedule of matters to be determined for specified subparagraphs of s 5 of the Act. The language used is normative for decision‑making: “the following matters are determined for the purposes of …” (see ss 5-8). It also repeatedly preserves a residual capacity to determine “all relevant matters” in relation to certain subparagraphs (s 5(2), s 7(2), s 8(2)).

These concepts are both descriptive and prescriptive. The Determination describes what will be treated as relevant factual or policy matters and prescribes how particular circumstances are to be taken to exist (for example, the 15 per cent voting power threshold as a marker of influence).

The Determination affects a defined set of actors directly and a wider set indirectly through the public interest assessment under the Act. The instrument itself identifies or implies the following stakeholders.

Directly affected categories

• Persons proposing to acquire or take over an Australian‑registered insurance company. The instrument specifies the matters that will be determinative of “fit and proper” status and whether a person is in a position of influence (ss 5-6). Those prospective acquirers will therefore be subject to assessment against the listed criteria.

• Australian‑registered insurance companies. The Determination frames the assessment of proposed changes in ownership or control of these companies by stipulating what counts as influence, undue concentration, and national interest concerns (ss 6-8). The companies are the subject entities whose ownership changes are being reviewed.

• Companies as acquirers. The instrument treats corporate acquirers differently in one respect: for companies the person’s “prudential conduct and compliance with the prudential standards (as determined by APRA under the Insurance Act 1973 and the Life Insurance Act 1995)” is explicitly included in the fitness assessment (s 5(1)(f)).

• Directors, senior managers and persons who take part in management. The Determination counts being a director or taking part in management as circumstances that create a position of influence (s 6(d)-(e)), and identifies directors who act under direction as a specific influence vector (s 6(b)). Accordingly, current and prospective board and management members are implicated.

• Associates of persons. The position of influence test is expressed to include a person acting “either alone or together with one or more associates” (s 6(a) and other paragraphs). The Determination therefore affects persons connected to an acquirer whose combined actions or voting power create influence.

Indirectly affected categories

• APRA (the Australian Prudential Regulation Authority) and prudential supervisors. The Determination explicitly brings APRA’s standards and supervisory capability into the public interest assessment (s 5(1)(f)-(g)). APRA’s assessments of prudential conduct and its supervisory posture may therefore be material to decisions taken under the Act.

• Policy holders of Australian‑registered insurance companies. The Determination requires consideration of any matters that could adversely affect the interests of policy holders as part of the national interest assessment (s 8(1)(b)).

• Other financial market participants. The undue concentration test looks beyond insurance to the supply or pricing of “other financial services” to the Australian market (s 7(1)(a)(ii)). That extends potential relevance to providers and intermediaries in related financial services markets.

• Foreign investors and persons subject to foreign investment rules. The Determination requires consideration of matters contrary to Australia’s foreign investment policies (s 8(1)(c)), thereby involving the framework and agencies that administer those policies.

• Government decision‑makers under the Act. Although the Determination is made by the Assistant Treasurer under the Act (s 3), the instrument’s operative language instructs what must be determined “for the purposes” of particular subparagraphs of s 5 of the Act (ss 5-8). The decision‑maker(s) who apply s 5 of the Act are therefore the recipients of the Determination’s content.

Who pays and who decides, as matters of mechanism: The costs of complying with these determinations will fall on prospective acquirers, their advisers and the target companies through due diligence, evidence‑gathering and possible restructuring. Decision‑making authority to act under the Act is not reallocated by this Determination; instead the instrument prescribes what matters must be determined under the Act’s public interest provisions. The Determination is made under the Act by the Assistant Treasurer (s 3), but the instrument itself does not list remedies or enforcement actors; it supplies the substantive criteria to be applied when the Act is administered.

The Determination is not framed as a stand‑alone statute imposing offences or creating application processes. Rather, it determines the matters to be assessed under specified subparagraphs of section 5 of the Insurance Acquisitions and Takeovers Act 1991. Accordingly, the primary legal effect is to shape the duties of decision‑makers under the Act and the expectations placed on applicants and other affected persons.

Duties and decision‑making obligations arising from the Determination

• Duty to determine prescribed matters. The instrument directs that the listed matters are to be “determined” for the purposes of the cited subparagraphs of s 5 of the Act (see s 5(1) and the opening words of ss 6-8). That imposes a duty on whoever is required by the Act to determine those matters to take the listed considerations into account.

• Duty to consider APRA standards and supervision. For companies, a determination of fitness must consider the company’s prudential conduct and compliance with prudential standards determined by APRA (s 5(1)(f)). Decision‑makers are required to ask whether APRA’s supervisory ability is likely to be adversely affected by the proposed change (s 5(1)(g)).

• Duty to treat specified circumstances as a position of influence. The Determination prescribes concrete circumstances that are to be taken as constituting a position of influence (s 6). Decision‑makers must treat those circumstances as establishing influence when applying paragraph 5(1)(b) of the Act.

Rights and expectations of applicants and affected persons

• Right to be assessed against the Determination’s criteria. Prospective acquirers and their associates will be assessed against the matters identified in ss 5-8. The Determination therefore creates an expectation that these criteria will be central to any public interest assessment under the Act.

• Right to have “all relevant matters” determined in certain contexts. For particular subparagraphs the Determination expressly provides that “all relevant matters are determined” (s 5(2), s 7(2), s 8(2)). That language preserves a residual right for applicants to have any other facts or considerations put before the decision‑maker, but it also leaves open the decision‑maker’s judgment about relevance.

Operational consequences for duties and rights

• The Determination converts abstract public interest concepts in the Act into concrete factual markers (for example, a 15 per cent voting power threshold for influence in s 6(a)). That makes certain duties of proof and disclosure more predictable: applicants will need to demonstrate conformity with the listed factors (for instance, evidence of competence, financial position and absence of conflicts; s 5(1)(a)-(d)).

• The Determination does not itself create rights to approvals or appeals; any such procedural rights must be sought in the Act or in subordinate administrative law. The instrument supplies the substance of what will be judged in exercising statutory powers under the Act.

Limitations in the Determination’s allocation of duties and rights

• The instrument does not itself set procedural obligations such as time limits, application forms or disclosure regimes. It prescribes substantive matters to be determined but does not outline how those determinations are to be made procedurally. Those procedural matters remain governed by the Act or other instruments.

• The Determination does not specify standards of proof or thresholds for decision‑making beyond those explicitly stated (for example, 15 per cent voting power or “reasonable grounds for suspecting” a financial crime (s 5(1)(e))). For other matters such as adverse effects on supply or pricing, the instrument leaves the determination of relevance and materiality open.

In short, the Determination imposes substantive duties on decision‑makers to determine particular matters and creates predictable substantive expectations for applicants, while leaving procedural detail and some assessments of materiality to the Act’s administrative process and the decision‑maker’s judgment.

The Determination contains no criminal offences, civil penalties, or specified enforcement mechanisms. It is an instrument made under the Insurance Acquisitions and Takeovers Act 1991 that prescribes matters to be determined for the purposes of specific subparagraphs of s 5 of that Act (s 3). The Determination does not itself enumerate enforcement powers, penalty amounts, injunctions, or sanctions.

Key enforcement and investigatory pointers derivable from the instrument’s content

• Adjudicative effect rather than punitive text. The Determination directs decision‑makers on what to determine; it does not impose contraventions or sanctions. Therefore, enforcement action (if any) in relation to breaches of the public interest test will depend on the powers conferred by the Act and any other relevant statutes, not the Determination itself (s 3).

• Interaction with prudential supervision. The Determination expressly requires consideration of APRA’s prudential standards and whether APRA’s ability to supervise a company is likely to be adversely affected (s 5(1)(f)-(g)). Adverse findings under these criteria may inform regulatory or supervisory action by APRA or consequential decisions taken under the Act, but the Determination does not itself authorise APRA to impose penalties.

• Investigatory implications. The Determination includes “reasonable grounds for suspecting the person has committed, or is at risk of committing, a financial crime” as a fitness element (s 5(1)(e)). That formulation permits decision‑makers to treat credible suspicion of financial crime as material to fitness. Investigation and prosecution of financial crimes, however, are matters for law enforcement and prosecutorial agencies, not the Determination.

Practical consequences for parties

• Because the Determination focuses on matters to be determined under the Act, adverse findings are likely to influence whether an acquisition or takeover is permitted under the Act. Any consequences flowing from negative determinations,such as refusal or imposition of conditions,will follow from the Act’s decision‑making and enforcement provisions, not from this Determination.

• The Determination’s references to APRA indicate that evidence of prudential non‑compliance or impaired supervisory ability will be salient. Such findings could lead APRA or other regulators to take supervisory or regulatory steps, again under their own statutory powers rather than under this instrument.

In sum, the instrument does not itself penalise conduct. It shapes the substantive content of public interest assessments under the Act, and negative determinations under the prescribed matters will feed into the Act’s decision outcomes and any enforcement actions taken under the Act or other statutes.

The Determination expressly situates itself within a network of statutes and regulatory arrangements by reference. It is made under the Insurance Acquisitions and Takeovers Act 1991 and repeatedly ties its substantive criteria to other statutory and policy frameworks. The instrument’s text identifies specific intersections.

Explicit references

• Enabling statute. The instrument is made under the Insurance Acquisitions and Takeovers Act 1991 (s 3). The Determination identifies its role as prescribing matters “for the purposes” of particular subparagraphs of s 5 of that Act (see ss 5-8).

• Legislation Act 2003. Section 4 of the Determination includes a note that “Expressions have the same meaning in this instrument as in the Insurance Acquisitions and Takeovers Act 1991 as in force from time to time,see paragraph 13(1)(b) of the Legislation Act 2003.” That indicates reliance on statutory definition mechanisms and a cross‑reference to the Legislation Act for interpretive effect.

• Insurance Act 1973 and Life Insurance Act 1995. The Determination makes APRA’s prudential standards under these Acts a specified component of the fitness assessment for companies (s 5(1)(f)). This pulls prudential law and standards into the public interest test.

• Foreign investment policies. The Determination requires consideration of any matter contrary to Australia’s foreign investment policies as part of the national interest test (s 8(1)(c)). That creates an explicit linkage to the foreign investment policy framework and any statutory or administrative bodies that administer those policies.

Points of interaction, potential overlap and areas for coordination

• Prudential and acquisition assessment overlap. The Determination requires decision‑makers under the Act to consider APRA’s prudential standards and supervisory capacity (s 5(1)(f)-(g)). This means that an acquisition assessment will incorporate a prudential lens; applicants may need to engage with both the acquisition clearance process under the Act and APRA processes concerning prudential fitness and supervisory arrangements.

• Foreign investment considerations. Because the Determination makes Australia’s foreign investment policies relevant to the national interest assessment (s 8(1)(c)), prospective acquirers who are foreign persons or who have foreign ownership structures will need to consider foreign investment clearances or consultations in parallel with the public interest assessment under the Act.

• Market competition or pricing overlap. The undue concentration test explicitly reaches “supply or pricing of other financial services” (s 7(1)(a)(ii)), which may overlap with competition law concerns or sectoral regulation of financial services. The Determination does not displace other regulatory frameworks, but it requires the decision‑maker applying the Act to have regard to effects on supply and pricing in the financial services market.

Limitations and disclaimers about interactions

• The Determination does not amend or replace the referenced statutes. It prescribes matters for the purposes of the Act; it does not change the substantive content of the Insurance Act 1973, Life Insurance Act 1995, or foreign investment laws. Any enforcement, approval, or supervisory powers exercised under those statutes remain governed by those statutes.

• The instrument relies on terms defined in the Act and other statutes (s 4 note). To understand the full legal consequences of terms such as “associate”, “control”, or procedural rights, users must consult the Act and the statutes referenced (the Determination itself does not define those terms beyond its substantive prescriptions).

Operational advice implicit from the text

• Applicants should plan to coordinate regulatory engagement, because the Determination makes prudential compliance, supervisory capacity and foreign investment policy explicit considerations (ss 5(1)(f)-(g), s 8(1)(c)). That implies parallel processes and the need for cross‑regulatory evidence.

• Where market structure effects extend beyond insurance into other financial services, decision‑makers will treat those cross‑market effects as relevant (s 7(1)(a)(ii)), which may require parties to produce economic analysis that interfaces with competition and financial services regulation.

In summary, the Determination integrates APRA prudential considerations and foreign investment policy into the Act’s public interest assessment and reaches beyond pure insurance markets to other financial services. It operates alongside,rather than in place of,other statutory regimes.

The instrument’s own amendment record is confined to the commencement table contained in the instrument. The Determination records the following history in its commencement schedule and front matter:

• Date of signature: 28 February 2024 (instrument dated and signed by the Assistant Treasurer) (front matter).

• Commencement: The whole instrument commences on 1 March 2024 (commencement table under s 2).

The instrument contains a note under the commencement table stating: “This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.” There are no subsequent entries or recorded amendments within the text of the instrument provided. The Determination therefore, as supplied, shows only its original making and commencement and does not record any amendments, revocations, or prior versions.

Practical implications of the instrument’s recorded history

• Users should treat the Determination as newly effective from 1 March 2024 as the only dated operation of this instrument in the provided text (s 2). The instrument does not record transitional provisions or savings clauses; any transitional arrangements would need to be sought in the Act or elsewhere.

• The instrument’s note about definitions referring to the Act “as in force from time to time” (s 4 note) signals that future amendments to the Act may affect interpretation of terms used in the Determination without the Determination itself being amended. The Determination does not indicate whether it will be updated automatically or whether new determinations will be made; it simply references the Act’s definitions and the method of interpretation found in the Legislation Act 2003.

• Because no later amendment history is recorded in the provided text, practitioners should check the consolidated or current edition of subordinate instruments, the Federal Register of Legislation, or the Act for any subsequent changes or replacement determinations beyond the scope of this instrument’s original text.

In short, the instrument documents only its making and commencement and contains no recorded amendment history beyond its original entry into force on 1 March 2024.

The Determination contains no statements about litigation, judicial review or case law. The text includes no references to past decisions, proceedings, or judicial interpretations. The instrument is a primary administrative determination made under the Insurance Acquisitions and Takeovers Act 1991 and does not itself record any litigation arising from its operation.

Practical consequences of the absence of litigation history in the instrument

• There is no litigation precedent or recorded case law within the instrument to guide the application of its specified matters. Interpretation of the Determination’s content, such as what constitutes “reasonable grounds” to suspect financial crime (s 5(1)(e)) or how to assess adverse effects on supply or pricing (s 7(1)(a)), will therefore depend on future administrative practice and any judicial review or case law developed after the Determination’s commencement.

• Practitioners must therefore rely on the text of the Determination and the enabling Act for present legal guidance, and monitor administrative decisions and any court determinations that may later interpret or apply the Determination in contested settings.

• Because the instrument repeatedly preserves the capacity to determine “all relevant matters” for particular subparagraphs (s 5(2), s 7(2), s 8(2)), there is likely to be room for contested questions of relevance and materiality. Absent prior litigation, those boundaries will be drawn in the course of administrative decision‑making and, if contested, through judicial review proceedings under general administrative law.

In sum, the Determination itself records no litigation history. Its legal contours will be clarified over time through administrative application and any judicial review that may follow.

The Determination is concise, but its language creates several practical traps and sources of uncertainty that advisers and parties should note. These “gotchas” arise from thresholds, open‑ended language, cross‑references to other statutes, and the variety of ways influence can be exercised.

1. 15 per cent voting power threshold as a presumptive marker of influence (s 6(a)). That numerical threshold is relatively low and may capture a broad class of minority investors. Holding 15 per cent of voting power, alone or together with associates, is treated as placing a person “in a position to control” voting power for the purposes of influence. Parties may assume that influence only arises at much larger stakes; this Determination treats 15 per cent as a significant marker (s 6(a)).

2. Associates matter but are not defined in the Determination (s 6(a) and elsewhere). The instrument repeatedly refers to a person “acting alone or together with one or more associates” but does not define “associate”. The instrument’s s 4 note points users back to definitions in the Act and to the Legislation Act 2003 for interpretive conventions (s 4 note). Therefore, the reach of the influence test depends on how “associate” is defined in the Act and in relevant case law or administrative practice.

3. Non‑shareholding forms of influence are captured (ss 6(b)-(e)). The Determination treats directors who are accustomed to act on someone’s directions, power to appoint/remove directors, being a director, or taking part in management as indicia of influence. This means that contractual or informal governance arrangements,such as director appointment rights, voting agreements, or management participation,can create a position of influence even where shareholdings are below 15 per cent (ss 6(b)-(e)).

4. “Reasonable grounds for suspecting” financial crime is a low evidentiary threshold (s 5(1)(e)). The fitness test includes whether there are reasonable grounds to suspect financial crime. That is not framed as conviction or proof beyond reasonable doubt; credible suspicion may be sufficient to bear on fitness.

5. Company acquirers are judged by APRA prudential conduct (s 5(1)(f)). For corporate acquirers, prudential conduct and compliance with APRA standards are explicit factors. Parties should not assume that corporate form shields them from prudential scrutiny; rather, corporate acquirers must show compliance with standards determined by APRA under the Insurance Act 1973 and the Life Insurance Act 1995 (s 5(1)(f)).

6. APRA’s supervisory ability is a direct consideration (s 5(1)(g)). The Determination requires assessing whether APRA’s ability to effectively supervise the insurer would be adversely affected. This elevates the administrative and practical import of regimes for supervision and information exchange with APRA.

7. “Undue concentration” reaches other financial services (s 7(1)(a)(ii)). The undue concentration test is not confined to insurance; it includes the supply or pricing of other financial services to the Australian market. Deals that create cross‑market concentration among financial services providers may therefore be caught.

8. National interest test explicitly flags policyholder interests and foreign investment policy (s 8(1)(b)-(c)). The Determination requires considering the interests of policy holders and any inconsistency with Australia’s foreign investment policies. Parties who are foreign or have foreign ownership structures should not assume that the test is solely about market structure; public policy and national security policy instruments may bear on the assessment.

9. Broad residual discretion in “all relevant matters” clauses (s 5(2), s 7(2), s 8(2)). The Determination repeatedly preserves decision‑makers’ capacity to determine “all relevant matters” for certain subparagraphs. That language leaves open the prospect that decision‑makers will consider factors beyond those listed, creating uncertainty about the final scope of inquiry.

10. Definitions and interpretive reliance on the Act. Section 4’s note relocates definitional clarity to the Act. Practitioners cannot rely on the Determination alone to resolve questions about defined terms; they must consult the Act and, where necessary, related instruments.

11. No procedural detail or timeline in the Determination. The instrument does not set application procedures, timelines, or evidentiary rules. Parties must identify procedural requirements elsewhere and cannot assume the Determination supplies them.

12. The Determination does not itself create remedies or penalties. Adverse findings under the Determination will have consequences only through the Act or other statutes. This can complicate strategic planning: parties must predict how decision‑makers will use the Determination in exercising the Act’s substantive powers.

13. Potential for indirect consequences through APRA or foreign investment authorities. The Determination’s linkages mean that findings under the Determination can trigger parallel regulatory processes or raise issues in other statutory regimes.

Each of these “gotchas” flows directly from the text of the Determination (see ss 5-8 and s 4 note). Parties should treat the Determination as setting substantive markers for assessment rather than as a complete procedural code.

Compliance under this Determination means preparing to be assessed against the matters the instrument prescribes for the purposes of the Act. The Determination does not supply procedural forms or timelines; those will be found in the Act or administrative practice. The practical steps below map directly to the Determination’s items and indicate the types of evidence and structuring choices that will be material.

1. Address the fit and proper test (s 5(1)(a)-(h))

• Honesty, integrity, reputation (s 5(1)(a)). Prepare documentary evidence and declarations that speak to probity: court and regulatory histories, public disclosures, reference letters, governance records, and internal compliance policies. Where past conduct could raise questions, prepare contextual explanations and remedial measures.

• Competence and capability relative to degree of control (s 5(1)(b)). Supply CVs, governance experience, management plans, and resourcing commitments that align capability to the level of influence sought. If proposed influence is substantial (for example, control of board appointments), the evidence should reflect board‑level and industry expertise.

• Financial position (s 5(1)(c)). Provide audited financial statements, funding commitments, liquidity arrangements, and stress testing or capital adequacy evidence as relevant.

• Conflicts of interest and material risk (s 5(1)(d)). Undertake a conflicts audit and disclose potential conflicts. Provide mitigation measures such as recusal protocols, contractual ring‑fencing, or trustee structures to reduce material risk to ongoing operations.

• Financial crime suspicion (s 5(1)(e)). Run enhanced AML/KYC and sanctions screening. Produce records of AML controls, independent audit reports, and any remediations. Where adverse media or law enforcement interest exists, provide explanations and proof of remedial steps.

• Company prudential conduct (s 5(1)(f)). For corporate acquirers, collate APRA engagement history, audit reports, compliance statements, and evidence of adherence to prudential standards derived from the Insurance Act 1973 and Life Insurance Act 1995.

• APRA supervisory ability (s 5(1)(g)). Demonstrate arrangements that enable effective supervision: cooperation commitments, information sharing protocols, onshore governance, local management, supervisory contacts, and commitments to meet reporting obligations.

• Influence by unfit persons (s 5(1)(h)). Map ownership, governance chains and informal influence relationships. Disclose relationships with third parties who might exercise influence and propose contractual or structural measures to prevent undue influence (for example, independent directors, voting trusts, or transfer restrictions).

2. Avoid or justify a “position of influence” (s 6)

• Watch the 15 per cent voting threshold (s 6(a)). If a buyer wants to avoid being treated as in a position of influence, structure voting holdings or shareholder agreements so that voting power remains below 15 per cent, or be prepared to justify why the influence test should not apply in context. If an acquirer expects to exceed 15 per cent, prepare direct evidence addressing the fit and proper factors.

• Manage director appointment or removal rights (s 6(c)). Avoid contractual powers to appoint or remove directors if the intent is to avoid a finding of influence. If such rights are required, document independence and safeguards.

• Avoid arrangements where directors are accustomed to act under instruction (s 6(b)). Ensure board independence and document that directors will exercise independent judgment. Consider independent director commitments and charters.

• Limit management participation if influence is to be avoided (s 6(e)). If a person will take part in management, that will be treated as influence; structure roles accordingly or provide robust governance safeguards if influence is unavoidable.

• Map associates (s 6). Identify all associates whose combined actions could create a position of influence. Disclose association networks and provide legal analysis of association relationships grounded in the definitions in the Act.

3. Address undue concentration and market effects (s 7)

• Prepare market analysis (s 7(1)(a)). Produce economic and empirical evidence on the likely effects of the acquisition on supply and pricing of insurance and other financial services in the Australian market. Use market share data, concentration metrics, substitution analysis, and scenario testing.

• Consider remedies. If the acquisition may raise concentration concerns, propose structural or behavioural remedies (for example, divestments, Chinese walls, non‑compete limitations or commitments about pricing and distribution) to mitigate market power effects.

4. Address national interest considerations (s 8)

• Policyholder protections (s 8(1)(b)). Demonstrate how policyholders’ interests will be protected: solvency plans, claims payment commitments, ring‑fenced reserves, or guarantees. Provide operational continuity plans and evidence of ongoing service capacity.

• Stability of industries and financial system (s 8(1)(a)). Provide stress testing, contingency planning, and evidence that the deal will not undermine sectoral stability. Demonstrate capital buffers, liquidity plans, and risk management frameworks.

• Foreign investment policies (s 8(1)(c)). If the acquirer has foreign involvement, secure or prepare to secure the relevant foreign investment clearances and be ready to align the public interest submissions with Australia’s foreign investment policy obligations.

5. Prepare integrated regulatory engagement

• Coordinate APRA engagement. Because prudential matters are explicit (s 5(1)(f)-(g)), seek early engagement with APRA to understand prudential expectations and to ensure that supervisory arrangements will remain effective.

• Coordinate foreign investment engagement where needed. Early engagement with the foreign investment review body or its administrative processes is advisable where the acquisition has foreign elements referenced in s 8(1)(c).

6. Evidence, disclosure and procedural steps

• Make comprehensive disclosures. The Determination’s matters are fact‑specific; full disclosure of governance, financial, criminal, and association facts will assist decision‑makers.

• Provide governance undertakings. Offer governance commitments that reduce the risk of influence by unfit persons, enhance board independence, and preserve APRA’s supervisory reach.

• Anticipate information requests. Because the Determination leaves open “all relevant matters” (s 5(2), s 7(2), s 8(2)), be prepared for requests for additional evidence across a wide range of topics.

7. Structural and transactional planning

• Transaction structuring to manage voting power. Consider staggered acquisitions, limitations on voting rights, or other structural tools if trying to avoid the 15 per cent influence marker.

• Use of conditional approvals and undertakings. If the acquisition might otherwise fail the public interest test, prepare remedial undertakings or conditions that the decision‑maker may impose under the Act.

8. Legal and strategic counsel

• Consult the Act and related legislation. The Determination relies on definitions and standards found in the Act and the Legislation Act 2003 (s 4 note); practitioners should incorporate those sources when preparing submissions.

• Prepare for administrative discretion. Given the Determination’s residual provisions about “all relevant matters” and the open‑ended nature of some criteria (for example, adverse effects on supply or pricing; s 7(1)(a)), submissions should frame arguments addressing both the explicit factors and potential implicit concerns.

In sum, compliance means building a record and transaction architecture that directly addresses the items listed in ss 5-8: probity, capability, financial soundness, conflicts, absence of reasonable grounds for suspicion of financial crime, APRA prudential fitness, supervisory capability, avoidance or justification of influence as defined (including the 15 per cent voting threshold), mitigation of market and policyholder effects, and consilience with foreign investment policies. The Determination does not set procedural rules, so these substantive preparations should be coupled with close attention to the Act’s processes and any operational guidance issued by the administering authorities.