Funds and investment platforms: Will your transactions be caught by the competition law reforms?

Some key points

• New merger notification obligations in the Competition and Consumer Act 2010 (Cth) (CCA) become mandatory from January 2026. The potential impact on superannuation trustees and other financial services licensees is inconsistent and uncertain.
• The new obligations require certain asset ‘acquisitions’ to be notified to, and approved by, the ACCC before they occur. Failure to notify when required will render an acquisition transaction void and expose the acquirer to civil penalty liability.
• The notification requirements are potentially relevant to superannuation successor fund transfers, mergers of non-superannuation funds and investment platforms and even other business-as-usual asset purchases.
• There are important exclusions that may apply to many asset acquisitions by financial services licensees but working out for a particular transaction whether an exclusion applies, and to which assets it can apply, may require extensive analysis.
• The ACCC application fee for a notifiable acquisition is $56,800. An application seeking an ACCC waiver of the notification obligation is $8,300.
• Financial services organisations may face substantial compliance costs and ACCC application fees, even for common or business-as-usual transactions that should not raise competition concerns.
• The Department of Treasury has recently released further consultation draft legislation which, in our view, would make the impact even worse.

Overview

From 1 January 2026, parties intending to acquire an asset or other rights connected with Australia may be required to give prior notice to the Australian Competition and Consumer Commission (ACCC) and seek the ACCC’s approval before proceeding with the acquisition.

The ACCC can only refuse its approval of an acquisition if satisfied that the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. Nevertheless, substantial notification fees apply, regardless of whether the ACCC has any competition concerns.

Failure to give notice and await approval when required, will render an acquisition void and there are civil penalties for giving effect to an acquisition that has not received the required ACCC approval.

Despite these new obligations being subject to financial thresholds and important exclusions, they still have the potential to apply to a range of financial services transactions that might not previously have been considered as raising competition law concerns, including:

• one-off or serial acquisitions of high value assets or high-revenue producing assets (whether by purchase or otherwise);
• superannuation successor fund transfers (SFTs);
• mergers of registered and unregistered managed funds;
• mergers of investor-directed portfolio services (IDPSs); and
• changes of trustee, responsible entity or IDPS operator.

Our view is that while many asset acquisitions occurring pursuant to such transactions will, or may, be exempted from the new requirements, this will not always be obviously the case. Our view is that the application of the new laws to such transactions has not been fully considered in the current drafting of the legislation and there are likely to be unforeseen and inappropriate outcomes.

What kind of ‘acquisitions’ and ‘assets’ are covered?

The notification requirements potentially apply to the acquisition of any kind of ‘asset’ or deemed asset that is ‘connected with Australia’, provided the acquisition is by a corporation, from a corporation or is an interest in a corporation, ‘unit trust’ or other managed investment scheme (MIS). The definition of ‘asset’ is unlimited and would include shares, interests in managed funds, bank deposits and private equity interests. The legislation also applies to acquisitions of specified things that are said to not be assets as if those things were assets, including ‘a legal or equitable right that is not property’ and ‘goodwill or an interest in it’.

In the example of a superannuation successor fund transfer involving a transfer of cash and other assets in specie from one superannuation fund to another, the successor trustee would acquire:

• all the transferred fund assets; and also
• in relation to the transferred fund members, fee-charging rights and other benefits akin to goodwill, which would be rights acquired by the successor trustee for its own benefit and not fund assets.

There are no specific exclusions for acquisitions of cash, bank deposits or other ‘cash-like’ investments.

Financial thresholds for notification

Whether an acquisition is notifiable depends on whether at least one of three different and complex sets of notification ‘circumstances’ – or thresholds – is met.  Depending on whether the thing being acquired is a share, unit trust or other MIS interest, or some other asset, the thresholds are based on the size of one or more of:

• the annual Australian gross revenue of the acquirer and all its related bodies corporate (this amount could be included in a $200m revenue threshold and/or a $500m threshold);
• the annual Australian gross revenue of the party selling or transferring the asset to the extent that the revenue is attributable to the asset (this amount could be included in the same $200m revenue threshold and/or a $10m and/or a $50m threshold);
• in the case of an acquisition of shares, the annual Australian gross revenue of the company whose shares are being transferred and of any subsidiaries of that company; MIS interests are treated similarly to shares (this amount could be included in one or more of the thresholds referred to above);
• where multiple assets are being acquired as part of a larger ‘contract, arrangement or understanding’ the total market value of all the assets being acquired (the total transaction value threshold being $250m); and
• the cumulative total of 1 year pre-acquisition Australian revenue of all shares or assets acquired by the acquirer’s corporate group in the preceding 3 years that relate ‘directly’ or ‘indirectly’ to goods or services that are ‘substitutable’ or ‘competitive’ with each other; referred to as ‘creeping or serial acquisitions’.

Our view is that these thresholds potentially create particular problems for financial services entities because:

• they do not clearly distinguish between the assets and revenue of a financial services entity (e.g. a superannuation trustee or managed fund operator) held or generated by that entity in its fiduciary capacity (e.g. trust assets and trust revenue) and the ‘personal’ or non-fiduciary assets and revenue of the entity or its related bodies corporate (e.g. trustee fee revenue);
• related to the previous point, they make no distinction between assets used by the acquirer in running its own business and assets that the acquirer holds as a passive investor or bare custodian;
• the $250m transaction value threshold could ‘capture’ numerous diverse and relatively small asset acquisitions occurring as part of a larger overall transaction unless an exclusion applies to each acquisition;
• the 3 year ‘creeping acquisition’ threshold does not take into account any asset disposals that an asset acquirer might have made during the preceding 3 years and the fact that, under that threshold, assets need only relate ‘indirectly’ to similar goods or services means that it is potentially very broad and imprecise; and
• the application to financial services entities of the various legislative exclusions is not consistent across asset types and some exclusions are unclear.

Some of these problems may be substantially mitigated by various exclusions but that will not always be the case or not always be obvious without substantial analysis.

Example of the thresholds: $250m+SFT

Merely one example of how the thresholds might apply is that if the Australian gross revenue of a superannuation trustee and/or its related companies in the 12 months preceding an SFT was $200m or more, and the trustee took a transfer of assets worth $250m or more pursuant to a single SFT (a relatively insignificant amount in today’s superannuation environment), the acquisition of each asset pursuant to the SFT might be notifiable to the ACCC unless an exclusion applied to that acquisition.

Exclusions from the notification requirements

The limited ‘ordinary course of business’ exclusion

The CCA competition provisions already excluded an acquisition of assets – other than shares – ‘in the ordinary course of business’.

That exclusion will continue but, the exclusion does not apply to share acquisitions, and it will also not apply to acquisitions of trust units or other MIS interests or interests in land or patents.

Based on previous case law, it also seems debateable whether the ordinary course of business exclusion could apply to any assets acquired through an SFT or similar kind of fund or platform merger. (See also the next exclusion for providers of custodial and depository services.)

Exclusion for custodial and depository services

There is an exclusion for any acquisitions in the ‘ordinary course’ of providing a ‘custodial or depository service’.

This exclusion should apply to ordinary asset acquisitions – including shares and MIS interests – by IDPS and managed discretionary account (MDA) operators and asset custodians.

However, it is debateable whether it would apply to custodial assets (or operator goodwill) acquired by such licensees under a merger or consolidation of platform or custody business.

It will not apply to superannuation trustees or MIS operators.

The bare trustee exclusion for ‘securities’

There is an exclusion for acquisitions of ‘securities’ by a ‘bare trustee’.

‘Bare trustee’ is not defined in the Act, and the Courts have said that the term ‘bare trust’ is ‘plagued by terminological indeterminacy’.  A note to the exclusion says that it will ‘often’ apply to a person who holds securities as a ‘nominee’.

This exclusion is not as broad as it might initially seem because, in our view:

• the exclusion will not apply to acquisitions by superannuation trustees;
• the exclusion is unlikely to apply asset acquisitions by unit trusts and many other MISs (depending on the terms of the unit trust or other scheme);
• it is debateable whether the exclusion will apply to IDPS operators (but see the next exclusion); and
• the definition of securities covers shares and registered scheme interests but not unregistered scheme interests (e.g. unregistered wholesale trusts).

The no change of control/fiduciary exclusion for shares and trust interests

Of likely application to a large proportion of asset acquisitions by licensees in the course of operating their business is that an acquisition of shares, or of MIS interests, is not notifiable if the acquisition does not result in a change of ‘control’ of the company whose shares are acquired or of the MIS the interests in which are being acquired.

This exclusion should usually apply where an acquisition results in the acquirer having a less than 50% stake in a company or trust.

In addition, based on the relevant statutory definition of control, an acquisition by an entity in a fiduciary capacity of shares, or units or other interests in MISs should usually be deemed to not result in a change of control and therefore will be excluded from being a notifiable acquisition, even if the acquisition results in the entity holding (on trust) more than 50% of the relevant shares or scheme interests.

This exclusion should usually apply in favour of superannuation trustees and is likely to apply to MIS operators and IDPS operators – subject to the terms of the MIS or IDPS.

However, there is a vague modification to this fiduciary exclusion so that it does not apply in favour of an acquirer who is a ‘special purpose vehicle’.

There is also ambiguity about how the control provisions work where the combined stake of a fiduciary and its related bodies corporate would give the corporate group a controlling stake in a company or trust.

The exclusion would not apply to goodwill or ‘quasi-goodwill’, direct landholdings, bank deposits and similar cash-like investments, many partnership interests (for example, private equity partnerships that are not managed investment schemes) or any other assets that are not interests in shares or unit trusts or other managed investment schemes.

The restructure exclusion

An asset acquisition that is part of a corporate, trust or partnership ‘restructure or reorganisation’ of related persons is not notifiable to the ACCC. The legislation does not define ‘restructure or reorganisation.

This exclusion would not apply, for example, to an SFT between unrelated corporate trustees.

The 20% – < 100% change exclusion for certain types of securities

Acquisitions of shares in listed or 50+ member unlisted companies, or listed registered MIS units, and which do not take an acquirer’s interest from 20% or less to above 20%, or do not increase an existing 20+% stake to 100% are also excluded. Such acquisitions will be subject to Corporations Act takeover provisions.

Exclusions for debt instruments (e.g. debentures) and security interests

There are exclusions for the acquisition of debt instruments, security interests and similar interests, subject to certain conditions. Explanatory material for these exclusions says that they would apply to ‘debt instruments such as bonds, notes and debentures.’

Exclusion for acquisitions occurring by ‘operation of law’

There is an exclusion for an acquisition that happens by operation of a Commonwealth, State or Territory law. However, the mere fact that an acquisition is expressly permitted by law does not mean that the acquisition happens by operation of law.

For example, in our view this exclusion would not apply to an SFT.

It might get worse: Last-minute Treasury proposals

On 21 October 2025 the Commonwealth Treasury released for consultation draft amendments that would substantially widen the notification requirements to cover acquisitions of shares or MIS interests that cause a change of ‘voting power’ within certain thresholds, even if there is no change in control of the company or MIS whose issued shares or interests were acquired.

Our view is that the consultation draft does not appropriately address transactions by superannuation trustees and other financial services licensees and raises substantial concerns.

Consultation on these latest proposals closed on 3 November.

Where to from here?

We expect further amendments to these laws over the coming months, given the concerns that have been raised by business and professional bodies.

Financial services licensees planning any merger or consolidation activities, or other large asset transactions, should consider carefully how these laws might affect their proposals.

This article is written based on the law as at 6 November 2025. Andrew Taylor (Special Counsel) is the principal author of this article, together with Natalie Cambrell (Director). If you have any questions, please do not hesitate to contact a member of our Superannuation & Financial Services team.

The content of this article is for reference purposes only, does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.