Financial Advisers Act 2008

1: Title
This Act is the Financial Advisers Act 2008.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: One or more Orders in Council may be made appointing different dates for the commencement of different provisions.
3: Despite subsection (1), sections 8 to 15 Financial Advisers Amendment Act 2010 Financial Advisers Amendment Act 2010 OIC Financial Advisers Act 2008 Sections 116 & 161A still to be brought into force by OIC.. Repealed without coming into force. Section 2(2) brought into force 5 December 2008 clause 2 Financial Advisers Act Commencement Order 2008 Section 2(2) brought into force 16 August 2010 clause 2 Financial Advisers Act Commencement Order 2010 Section 2(2) brought into force 1 December 2010 clause 3 Section 2(2) brought into force 1 July 2011 clause 4 Financial Advisers Act Commencement Order 2010 Section 2(3) added 1 July 2010 section 5 Financial Advisers Amendment Act 2010
1: Preliminary provisions
3: Purpose of Act
1: The purpose of this Act is to promote the sound and efficient delivery of financial adviser and broking services and brokers
a:
b:
c:
1A: That purpose is additional to the purposes of the Financial Markets Conduct Act 2013 set out in sections 3 4
2: To those ends, this Act (without limitation)—
a: requires financial advisers and brokers to take an appropriate degree of care in providing services to investors and consumers and prohibits certain conduct by financial advisers and brokers; and
b: in addition,—
i: requires disclosure by financial advisers and brokers to retail clients, so ensuring that clients can make informed decisions about whether to use the financial adviser or broker and, in the case of an adviser, whether to follow a financial adviser's advice; and
ii: imposes competency requirements on certain financial advisers who deal with retail clients, so ensuring that there are available to retail clients financial advisers who have the experience, expertise, and integrity to match effectively a person to a financial product that best meets that person's need and risk profile; and
iia: ensures that appropriate governance arrangements apply to services to allow for effective monitoring and reduce governance risks; and
iii: ensures that financial advisers are held accountable for the services that they give to retail clients and that there are incentives for financial advisers to manage conflicts of interest appropriately. Section 3(1) amended 1 July 2010 section 6(1)(a) Financial Advisers Amendment Act 2010 Section 3(1) amended 1 July 2010 section 6(1)(b) Financial Advisers Amendment Act 2010 Section 3(1)(a) repealed 1 July 2010 section 6(1)(c) Financial Advisers Amendment Act 2010 Section 3(1)(b) repealed 1 July 2010 section 6(1)(c) Financial Advisers Amendment Act 2010 Section 3(1)(c) repealed 1 July 2010 section 6(1)(c) Financial Advisers Amendment Act 2010 Section 3(1A) inserted 1 April 2014 section 11(1) Financial Markets (Repeals and Amendments) Act 2013 Section 3(2) added 1 July 2010 section 6(2) Financial Advisers Amendment Act 2010 Section 3(2) amended 1 April 2014 section 11(2) Financial Markets (Repeals and Amendments) Act 2013 Section 3(2)(b)(iia) inserted 1 April 2014 section 11(3) Financial Markets (Repeals and Amendments) Act 2013
4: Overview of Act
This Act is divided into 6 Parts
a: Part 1 (Preliminary provisions):
b: Part 2
c: Part 3
ca: Part 3A
d: Part 4
e: Part 5 Section 4 amended 1 July 2010 section 7(1) Financial Advisers Amendment Act 2010 Section 4(ca) inserted 1 July 2010 section 7(2) Financial Advisers Amendment Act 2010
5: Interpretation
In this Act, unless the context otherwise requires,— acting through section 5I(2) acquire advertisement
a: in relation to a financial adviser service,—
i: refers to a financial adviser or financial adviser service or is reasonably likely to induce persons to seek a financial adviser service; and
ii: is authorised or instigated by, or on behalf of, a financial adviser, a QFE, or a member of a QFE group, or prepared with the co-operation of, or by arrangement with, a financial adviser, a QFE, or a member of a QFE group; and
b: in relation to a broker service,—
i: refers to a broker or broking service or is reasonably likely to induce persons to seek a broking service; and
ii: is authorised or instigated by, or on behalf of, a broker or prepared with the co-operation of, or by arrangement with, a broker approved dispute resolution scheme section 4 approved rating agency Non-bank Deposit Takers Act 2013 section 62 associated entity section 67(4) 71 authorised FMA section 55 authorised financial adviser section 51 bank in New Zealand bank term deposit bonus bond section 3(1) broker section 77A broker obligation broking service section 77B building society section 2(1) business call building society share
a: the shareholder has a right to demand repayment of the value of the share in full at any time; and
b: the building society has an obligation to repay the value of the share in full not later than 1 working day after the demand is made; and
c: the rate of dividend or interest payable or any other benefit provided does not alter as a result of the demand being made; and
d: no fee or other amount is payable as a result of the principal sum not having been held by the building society for a particular period of time call credit union share section 107
a: the member has a right to demand repayment of the value of the share in full at any time; and
b: the credit union has an obligation to repay the value of the share in full in accordance with section 107(4)
c: the rate of dividend or interest payable or any other benefit provided does not alter as a result of the demand being made; and
d: no fee or other amount is payable as a result of the principal sum not having been held by the credit union for a particular period of time call debt security
a: the security holder has a right to demand repayment of the principal sum in full at any time; and
b: the issuer has an obligation to repay the principal sum in full not later than 1 working day after the demand is made; and
c: the rate of interest payable or any other benefit provided does not alter as a result of the demand being made; and
d: no fee or other amount is payable as a result of the principal sum not having been held by the issuer for a particular period of time category 1 product
a: an FMCA financial product (other than a product that is a category 2 product); or
b: a DIMS facility (other than a facility that is a category 2 product); or
c: an investment-linked contract of insurance; or
d: any other product specified by the regulations; or
e: a renewal or variation of the terms or conditions of an existing category 1 product category 2 product
a: a bank term deposit; or
b: a bonus bond; or
c: a call building society share; or
d: a call credit union share; or
e: a call debt security; or
f: a share in a co-operative company (as defined in section 2(1)
g: a unit in a cash or term portfolio investment entity (as defined in the regulations); or
h: a consumer credit contract within the meaning of the Credit Contracts and Consumer Finance Act 2003
i: a contract of insurance (other than an investment-linked contract of insurance); or
j: a life insurance policy (within the meaning of section 2(1)
ja: a DIMS facility, if the investment authority covers only category 2 products; or
k: any other product specified by the regulations; or
l: a renewal or variation of the terms or conditions of any existing category 2 product class of financial products class service section 15(3) client section 5A client money section 77B client property section 77B code section 94 conduct obligation
a: in relation to a financial adviser, a QFE, or a member of a QFE group, an obligation described in section 32
b: in relation to a broker, an obligation described in section 77J controlling owner section 4 conveyancing practitioner section 6 credit union section 2 Crown organisation section 6 custodial service section 77B DIMS facility DIMS licensee section 392(3) director section 126 disclosure obligation
a: in relation to a financial adviser, a QFE, or a member of a QFE group, an obligation described in section 21
b: in relation to a broker, an obligation described in section 77D discretionary investment management service section 12 dispose of
a: dispose of by allotting, withdrawing from, or terminating; and
b: agree to dispose of document
a: any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds from which symbols, images, or sounds can be derived, and includes—
i: a label, marking, or other writing that identifies or describes a thing of which it forms part, or to which it is attached:
ii: a book, map, plan, graph, or drawing:
iii: a photograph, film, or negative; or
b: information electronically recorded or stored, and information derived from that information entity
a: includes a body corporate and an unincorporated body (including partners in a partnership, members of a joint venture, or the trustees of a trust) and the sole trustee of a trust acting in his, her, or its capacity as trustee of that trust; but
b: does not include an individual exempt provider
a: a person to whom both of the following 2 subparagraphs apply (an overseas financial adviser
i: the person is not ordinarily resident in New Zealand (within the meaning of section 4
ii: no financial adviser services provided by the person are received by retail clients in New Zealand; and
b: a person who is exempted under section 148
c: a person who is excluded from the application of the FSP Act under section 7(2) financial adviser section 8 financial adviser obligation financial adviser service section 9 financial markets legislation section 4 financial product financial service section 5 section 7(2) FMA Part 2 Financial Markets Authority Act 2011 FMCA financial product Financial Markets Conduct Act 2013
a: an equity security:
b: a debt security:
c: a managed investment product:
d: a derivative FSP Act Financial Service Providers (Registration and Dispute Resolution) Act 2008 incorporated law firm section 6 individual information investment authority section 12(3) investment-linked contract of insurance investment planning service section 11 issuer section 11(1)(b) lawyer section 6 lecturer licensed market section 6(1) licensed service section 4 local authority section 5(1) member of a QFE group Minister Ministry nominated representative section 74 non-profit organisation offeror section 6(1) on behalf of the business of another person on behalf of another person's business section 5I(1) overseas regulator FMA partner entity personalised DIMS section 15 personalised service section 15 prescribed principal officer product disclosure statement PDS section 6(1) product provider
a: the issuer, in the case of an FMCA financial product:
b: the creditor, in the case of a consumer credit contract (within the meaning of the Credit Contracts and Consumer Finance Act 2003
c: the insurer, in the case of a contract of insurance (other than an investment-linked contract of insurance):
ca: the person to whom the investment authority is granted, in the case of a DIMS facility:
d: the person specified by regulations, in any other case promoter QFE qualifying financial entity section 63(1)(a) section 63(1)(b) QFE adviser
a: an employee of a QFE or any member of a QFE group; or
b: a nominated representative of a QFE or a partner entity QFE group
a: the partner entities that are part of a QFE and the associated entities of that QFE, if any; or
b: in the case of a QFE that does not come within paragraph (a), that QFE and its associated entities qualified statutory accountant section 5(1) real estate agent Real Estate Agents Act 2008 record
a: any file, register, ledger, book of account, or passbook, and any reproduction or copy of them or any entry in any of them; and
b: any apparatus or equipment in or on which information is recorded, stored, or embodied in any form so as to be capable of being retrieved, reproduced, or processed by any means; and
c: any material by means of which information is supplied to, or derived from, any such apparatus or equipment register registered registration registered bank section 2(1) registered legal executive registered valuer section 2 Registrar regulated offer section 41 regulations related section 12(2) relevant service section 14(3) retail client section 5B standard conditions FMA section 147A 147C section 147D State services section 5 State services employee statutory officer
a: holding or performing the duties of an office established by an enactment; or
b: performing duties expressly conferred on that person by virtue of his or her office by an enactment; or
c: holding office as the chief executive of a Crown organisation Takeovers Code takeovers code Takeovers Act 1993 tax agent section 3(1) Act 1994 and, for the purposes of this Act, includes a representative and nominated person as those terms are defined in section 3(1) teacher teaching position section 10(1) trust account records
a: means records relating to a trust account; and
b: includes any information that relates to a trust account and that is recorded or stored by means of any tape recorder, computer, or other device, and any material subsequently derived from information so recorded or stored trustee corporation university section 10(1) wholesale client section 5C Section 5 acting through inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 acquire inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 advertisement substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 approved dispute resolution scheme substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 approved dispute resolution scheme amended 1 July 2014 section 47 Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014 Section 5 approved rating agency substituted 1 February 2011 section 241(2) Insurance (Prudential Supervision) Act 2010 Section 5 approved rating agency amended 1 May 2014 section 92(2) Non-bank Deposit Takers Act 2013 Section 5 associated entity inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 authorised amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 5 authorised advertisement repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 bonus bond inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 broker inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 broker obligation inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 broking service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 building society inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 call building society share inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 call building society share call credit union share repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 call credit union share inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 call debt security substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 category 1 product replaced 1 December 2014 section 12(3) Financial Markets (Repeals and Amendments) Act 2013 Section 5 category 2 product substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 category 2 product inserted 1 December 2014 section 12(4) Financial Markets (Repeals and Amendments) Act 2013 Section 5 chartered accountant repealed 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 5 class of financial products inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 class service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 client substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 client money replaced 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 client property replaced 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 college of education repealed 1 August 2020 section 668 Education and Training Act 2020 Section 5 Commission repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 5 Commissioner for Financial Advisers Commissioner repealed 1 May 2011 section 5 Financial Advisers Amendment Act 2011 Section 5 conduct obligation substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 controlling owner inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 conveyancing practitioner inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 credit union inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 custodial service inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 DIMS facility inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 DIMS licensee inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 disclosure obligation substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 discretionary investment management service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 entity substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 exempt provider inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 financial adviser service substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 financial markets legislation inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 financial planning service repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 financial service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 FMA inserted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 5 FMCA financial product inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 futures contract repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 general education system repealed 1 August 2020 section 668 Education and Training Act 2020 Section 5 incorporated law firm inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 information inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 investment authority inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 investment-linked contract of insurance inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 investment planning service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 investment statement repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 investment transaction repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 issuer replaced 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 lecturer replaced 25 September 2020 clause 4(2) Education (Name Change for NZIST) Order 2020 Section 5 licensed market inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 life insurance policy repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 local authority inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 member of a QFE group inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 nominated representative inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 non-profit organisation inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 NZIST repealed 25 September 2020 clause 4(2) Education (Name Change for NZIST) Order 2020 Section 5 offeror inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 on behalf of the business of another person on behalf of another person's business inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 overseas regulator amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 5 partner entity inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 personalised DIMS inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 personalised service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 polytechnic repealed 1 April 2020 section 78(1) Education (Vocational Education and Training Reform) Amendment Act 2020 Section 5 product disclosure statement PDS inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 product provider inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 product provider replaced 1 December 2014 section 12(5) Financial Markets (Repeals and Amendments) Act 2013 Section 5 product provider inserted 1 December 2014 section 12(6) Financial Markets (Repeals and Amendments) Act 2013 Section 5 promoter replaced 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 prospectus repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 QFE qualifying financial entity substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 QFE adviser inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 QFE group inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 qualified statutory accountant inserted 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 5 registered substituted 1 July 2010 section 8(2) Financial Advisers Amendment Act 2010 Section 5 registered exchange repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 registered legal executive inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 regulated offer inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 related inserted 1 December 2014 section 12(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5 related body corporate repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 related company repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 relevant service inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 retail client inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 security repealed 1 December 2014 section 12(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5 standard conditions inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 standard conditions amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 5 State services amended 7 August 2020 section 135 Public Service Act 2020 Section 5 statutory officer inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 tax agent amended 18 March 2019 section 367 Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 Section 5 teaching position amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 trust account repealed 1 July 2010 section 8(3) Financial Advisers Amendment Act 2010 Section 5 trustee corporation inserted 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010 Section 5 university amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 wholesale client added 1 July 2010 section 8(1) Financial Advisers Amendment Act 2010
5A: Who are clients
1: For the purposes of this Act, a client
a: means a person who receives a service (whether or not on payment of a charge); and
b: in relation to a broking service, means the person on whose behalf the client money or client property is received, held, paid, or transferred under the service
c: does not include a person who receives any service from another person if the service is both provided and received in the course of, and for the purposes of,—
i: the same business; or
ii: the businesses of related bodies corporate; or
iii: the businesses of members of a QFE group. Example
If a company employee ( A B
2: Subsection (1) applies whether the person providing or receiving the service is the person carrying on the business, a controlling owner, a director, an agent, or any other person. Section 5A inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010 Section 5A(1)(b) amended 1 April 2014 section 13 Financial Markets (Repeals and Amendments) Act 2013
5B: Who are retail clients
A retail client Section 5B inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010
5C: Who are wholesale clients
1: The following clients of a financial adviser or broker are wholesale clients section 5G
a: any other financial adviser or broker who receives the service in the course of business as a financial adviser or broker:
b: a person who is in the business of providing any other financial service and receives the financial adviser service or broking service in the course of that business:
c:
d: (except in respect of a discretionary investment management service)
i: at the balance date, the net assets of the entity exceeded $1 million:
ii: the turnover of the entity for the accounting period exceeded $1 million:
e: a related body corporate of an entity to which paragraph (d) applies:
f: a person who is a wholesale investor within the meaning of clause 3(2) see
g: a person who is, in relation to an offer of FMCA financial products, a wholesale investor within the meaning of clause 3
ga: a person who is, in relation to an offer of FMCA financial products, a close business associate of the offeror, or a relative of the offeror or of a director of the offeror, within the meaning of clauses 4 5
gb: a person who is, in relation to a DIMS facility provided by a DIMS licensee, a wholesale investor under clause 36(b)
h: an eligible investor under section 5D
2: If subsection (1) applies to a person ( A
3: The relevant time, for the purposes of applying Schedule 1 Section 5C inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010 Section 5C(1)(c) repealed 1 December 2014 section 14(1) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(1)(d) amended 1 December 2014 section 14(2) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(1)(f) replaced 1 December 2014 section 14(3) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(1)(g) replaced 1 December 2014 section 14(3) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(1)(ga) inserted 1 December 2014 section 14(3) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(1)(gb) inserted 1 December 2014 section 14(3) Financial Markets (Repeals and Amendments) Act 2013 Section 5C(3) replaced 1 December 2014 section 14(4) Financial Markets (Repeals and Amendments) Act 2013
5D: Who are eligible investors
1: A client is an eligible investor if—
a: the client certifies in writing that—
i: the client has sufficient knowledge, skills, or experience in financial matters to assess the value and risks of financial products; and
ia: the client has sufficient knowledge, skills, or experience in financial matters to assess the merits of the service or services to be provided (including to assess its value and the risks involved); and
ii: the client understands the consequences of certifying himself, herself, or itself to be an eligible investor (including that the competency standards and requirements of the code will not be applicable (if relevant) and that the financial adviser or broker may not be a member of an approved dispute resolution scheme); and
b: the client states the reasons for this certification; and
c: a financial adviser, a QFE, or a broker signs a written acceptance of the certification in accordance with section 5E.
2: A certification may be specific to a particular service or class of services or may be general (but is effective only in relation to services provided after all of the requirements of subsection (1)(a) to (c) are met).
3: A certification relating only to a discretionary investment management service or a broking service (or both) does not need to certify as to the matters referred to in subsection (1)(a)(i). Section 5D inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010 Section 5D(1)(a)(i) replaced 1 December 2014 section 15 Financial Markets (Repeals and Amendments) Act 2013 Section 5D(1)(a)(ia) inserted 1 December 2014 section 15 Financial Markets (Repeals and Amendments) Act 2013
5E: Acceptance of certification
1: A financial adviser, a QFE, or a broker must not accept a certification unless he, she, or it, having considered the client's reasons for the certification,—
a: is satisfied that the client has been sufficiently advised of the consequences of the certification; and
b: has no reason to believe that the certification is incorrect or that further information or investigation is required as to whether or not the certification is correct.
2: The person who accepts the certification of a client may be the financial adviser or broker for the client (but does not need to be).
3: A financial adviser (other than an authorised financial adviser or QFE) or broker who accepts a certification without having complied with subsection (1) contravenes a wholesale certification requirement.
4: Contravention of this section may give rise to a pecuniary penalty order or compensatory order ( see sections 137K 137L Section 5E inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010
5F: Revocation of certification
1: A client who is an eligible investor may revoke a certification, in relation to a financial adviser or broker to whom the certification has been given, by giving the financial adviser or broker a signed notification to that effect.
2: A revocation is effective only in relation to services provided after it is given. Section 5F inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010
5G: How to opt out of being wholesale client
1: A person may opt out of being a wholesale client, in relation to a financial adviser or broker, by giving the financial adviser or broker a signed notification to that effect.
2: A notification may be specific to a particular service, or class of services, or may be general for all services provided by the financial adviser or broker to whom it is given.
3: A person may vary or revoke a notification in the same way as the notification may be given.
4: A notification (or variation or revocation of a notification) under this section is effective only in relation to services provided after it is given.
5: This section does not apply if a person is a wholesale client by reason of being an eligible investor under section 5D Section 5G inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010 Section 5G(5) amended 1 December 2014 section 16 Financial Markets (Repeals and Amendments) Act 2013
5H: Giving revocation of certification or notification of opt out
1: A revocation of a certification under section 5F section 5G
a: provided to the financial adviser or broker; or
b: delivered or posted to the financial adviser or broker at the person's business address stated on the register under the FSP Act or (if not registered) the person's last known place of business in New Zealand; or
c: sent by fax or email to the person's fax number or email address stated on the register under the FSP Act.
2: The revocation or notification is treated as received by the person no later than 7 days after it is posted or 2 days after it is faxed or emailed, unless the person to whom it is posted or sent proves that it was not received (otherwise than through fault on the person's part). Section 5H inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010
5I: Meaning of acting on behalf of B's business and acting through A
1: In this Act, a person ( A on behalf of the business of another person B on behalf of B's business
a: A is a director, an employee, or an agent (including a nominated representative or a contractor) of B and is acting within the scope of his or her actual or apparent authority; or
b: A is acting at the direction or with the consent or agreement (whether express or implied) of—
i: B; or
ii: a director, an employee, or an agent (including a nominated representative or a contractor) of B and the direction, consent, or agreement given is within the scope of the actual or apparent authority of the director, employee, or agent.
2: If A is providing services on behalf of B's business, then B is acting through Section 5I inserted 1 July 2010 section 9 Financial Advisers Amendment Act 2010
6: Act binds the Crown
This Act binds the Crown.
2: Financial advisers and their disclosure and conduct obligations
7: Outline
1: This Part is divided into 3 subparts.
2: Subpart 1
3: Subpart 1A
4: Subpart 2 Section 7 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
1: Key definitions for financial adviser services
Subpart 1 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 What are financial adviser services Heading inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
8: Who is financial adviser
1: A financial adviser is a person who provides a financial adviser service.
2: See section 16 sections 20D to 20F Section 8 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
9: What is financial adviser service
1: A person ( A
2: A person ( A
3: The services are—
a: giving financial advice ( see section 10
b: providing an investment planning service ( see section 11
c: providing a discretionary investment management service ( see section 12
4: A person does not provide a financial adviser service for the purposes of this Act if exempted under section 13 14 148 Section 9 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
10: When person gives financial advice
1: A person ( A
2: Whether or not advice is financial advice for the purposes of this Act is not affected by how the advice is given or communicated.
3: However, a person does not give financial advice for the purposes of this Act merely by—
a: providing information (for example, the cost or terms and conditions of a financial product); or
b: making a recommendation or giving an opinion relating to a class of financial products; or
c: making a recommendation or giving an opinion about the procedure for acquiring or disposing of a financial product; or
d: transmitting the financial advice of another person (unless A gives A's own financial advice in doing so or holds out the transmitted financial advice as A's own financial advice); or
e: recommending that a person consult a financial adviser. Section 10 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
11: When person provides investment planning service
1: A person ( A
a: is based on, or purports to be based on, an analysis of the individual's current and future overall financial situation (which must include his or her investment needs) and identification of the individual's investment goals; and
b: includes 1 or more recommendations or opinions on how to realise those goals (or 1 or more of them).
2: A service may be an investment planning service regardless of whether the analysis and identification is of the individual's particular financial situation and goals or of the financial situations and goals attributable to the class of persons that the individual is identified as coming within. Section 11 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
12: When person provides discretionary investment management service
1: A person ( A
a: decides which FMCA B
b: in doing so is acting under an authority granted to A (or A's employer or principal) to manage some or all of B's holdings of FMCA
2: In determining whether A has that authority, it does not matter if B has the right to be consulted on, or to countermand, A's decisions.
3: For the purposes of this Act, the authority referred to in subsection (1)(b) is the investment authority Section 12 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 12(1)(a) amended 1 December 2014 section 17(1) Financial Markets (Repeals and Amendments) Act 2013 Section 12(1)(b) amended 1 December 2014 section 17(1) Financial Markets (Repeals and Amendments) Act 2013 Section 12(3) inserted 1 December 2014 section 17(2) Financial Markets (Repeals and Amendments) Act 2013
13: Exemption for incidental service
1: A service is not a financial adviser service for the purposes of this Act if the service is provided only as an incidental part of another business that is not otherwise a financial service or does not have, as its principal activity, the provision of another financial service.
2: In addition, a service is not a financial adviser service if—
a: it is provided in connection with providing credit under a credit contract; and
b: both the service and the credit are provided as an incidental part of another business that is not otherwise a financial service or does not have, as its principal activity, the provision of another financial service.
3: In this section, a service is incidental
4: Regulations may declare a class of service provided in the course of a class of business to be incidental, or that a class of business is not a financial service, for the purposes of subsection (1). Section 13 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
14: Other exemptions
1: None of the following is a financial adviser service for the purposes of this Act: Other occupations
a: a teacher, lecturer, journalist, or State services employee providing a relevant service in the course of that occupation:
b: a Minister of the Crown providing a relevant service in the course of his or her duties as a Minister of the Crown:
c: a member of Parliament providing a relevant service in the course of his or her duties as a member of Parliament:
d: a lawyer, incorporated law firm, conveyancing practitioner, qualified statutory accountant Crown-related organisations and other statutory officers and organisations
e: a statutory officer, a Crown organisation (other than Public Trust), or the Reserve Bank of New Zealand—
i: discharging any duties or exercising any powers of the statutory officer, the Crown organisation, or the Reserve Bank of New Zealand under any enactment; or
ii: doing anything that is incidental to the discharge of the functions of the statutory officer, the Crown organisation, or the Reserve Bank of New Zealand under any enactment: Non-profit organisations, workplace financial products, and trustee corporations
f: a non-profit organisation providing a relevant service if the relevant service is provided, without charge, in the course of the organisation's activities:
g: an employer providing a relevant service to an employee in connection with a financial product made available through the employee's workplace:
h: a trustee corporation providing a relevant service in the ordinary course of providing—
i: legal or financial services relating to the preparation or drafting of a will; and
ii: estate management and administration services (and associated legal, financial, and other services carried out under the relevant enactment governing the trustee corporation): Activities governed by other regulatory frameworks
i: a principal officer of any entity providing a relevant service in the person's capacity as a principal officer:
j: the offeror or target company providing a relevant service in the course of a takeover offer under the Takeovers Code:
k: an independent adviser providing a relevant service in the course of that person's functions under the Takeovers Code:
ka: a person providing a relevant service that is—
i: covered by a market services licence for discretionary investment management services under the Financial Markets Conduct Act 2013
ii: exempted, by section 389 section 388(c)
l: an approved rating agency providing a relevant service in connection with a rating given or to be given by it:
m: any form of communication made by or on behalf of an issuer or offeror to a person that is contained in, or given in connection with, an offer of FMCA financial products to that person that does not require disclosure under Part 3 clauses 3 to 5
n: Documents required by law
o: providing or making available to a person any of the following documents or information:
i: a product disclosure statement, a disclosure document under clause 26 subpart 4 section 89
ii: a document or information that is required by law to be provided or made available (for example, an annual report of a company), whether directly or as a condition of carrying out any activity or as a condition of an exemption from any enactment:
iii: any other exempted document or information (as specified in the regulations): Services provided to product provider
p: a person providing a relevant service to a product provider in connection with a financial product of that provider in the course of an appointment by, or under a contract for services with, the product provider: Other exemptions in regulations
q: any other person providing a relevant service in circumstances exempted under the regulations.
2: If subsection (1) applies to a person ( A
2A: However, subsections (1)(ka) and (2) do not limit the application of the terms and conditions of authorisation or the code to an authorised financial adviser ( see sections 55(2) 86(6)
3: In this section, relevant service Section 14 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 14(1)(d) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 14(1)(ka) inserted 1 December 2014 section 18(1) Financial Markets (Repeals and Amendments) Act 2013 Section 14(1)(m) replaced 1 December 2014 section 18(2) Financial Markets (Repeals and Amendments) Act 2013 Section 14(1)(n) repealed 1 December 2014 section 18(2) Financial Markets (Repeals and Amendments) Act 2013 Section 14(1)(o)(i) replaced 1 December 2014 section 18(3) Financial Markets (Repeals and Amendments) Act 2013 Section 14(2A) inserted 1 December 2014 section 18(4) Financial Markets (Repeals and Amendments) Act 2013 When financial adviser service is personalised service or class service Heading inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
15: When financial adviser service is personalised service or class service
1: A financial adviser service is a personalised service
a: it is given to, or in respect of, a named client or a client that is otherwise readily identifiable by the financial adviser; and
b: either—
i: the financial adviser has taken into account the client's particular financial situation or goals (or any 1 or more of them) in providing the service; or
ii: a client would, in the circumstances in which the service is provided, reasonably expect the financial adviser to take into account the client's particular financial situation or goals (or any 1 or more of them).
2: A service is not personalised merely because the client comes within a class of persons having predefined characteristics and the financial adviser takes the fact that the client comes within that class into account.
2A: Subsection (1) does not apply to a discretionary investment management service and, in this case, the service is a personalised service personalised DIMS
a: the service is provided to a named client or a client who is otherwise readily identifiable by the financial adviser exercising the investment authority under that service; and
b: the investment strategy implemented in, or to be applied under, the investment authority has been designed to take account of the client's particular financial situation and goals or any 1 or more of them (rather than merely being customised from an investment strategy that applies to a class of clients, for example, by selecting options or by making minor changes to the class strategy or authority).
3: A financial adviser service is a class service Section 15 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 15(2A) inserted 1 December 2014 section 19 Financial Markets (Repeals and Amendments) Act 2013
1A: Restrictions on providing financial adviser services
Subpart 1A inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
16: Types of financial adviser
Under this Act, there are the following types of financial adviser:
a: an authorised financial adviser:
b: an individual who is registered but not authorised:
c: a QFE adviser:
d: a QFE or any other entity that is registered but does not have QFE status:
e: any other person (whether an individual or an entity) who is an exempt provider. Section 16 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Restrictions on providing financial adviser services Heading inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
17: Who may provide financial adviser service
1: A person must not provide a financial adviser service unless—
a: the person is permitted to provide that service under sections 18 to 20
b: the person is—
i: registered or an exempt provider; and
ii: acting through a person to whom paragraph (a) applies (other than a QFE adviser); or
c: the person is a QFE or a member of a QFE group acting through a QFE adviser to whom paragraph (a) applies.
1A: Sections 18 to 20 section 67A 75B(4)
2: Contraventions of this section may give rise to an offence ( see section 114 Section 17 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 17(1A) inserted 1 December 2014 section 20 Financial Markets (Repeals and Amendments) Act 2013
18: Who is permitted to provide personalised service to retail clients
1: The following individuals are permitted to provide a personalised service to a retail client:
a: if giving financial advice
i: an authorised financial adviser:
ii: a QFE adviser (but only if the QFE or a member of the QFE group is the product provider (or, in the case of an FMCA financial product, a promoter) of the relevant category 1 product):
b: if providing an investment planning service, an authorised financial adviser:
c: if giving financial advice
i: an authorised financial adviser:
ii: a registered individual:
iii: a QFE adviser:
d: if providing a discretionary investment management service, an authorised financial adviser.
2: Section 18 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 18(1)(a) amended 1 December 2014 section 21(1) Financial Markets (Repeals and Amendments) Act 2013 Section 18(1)(a)(ii) replaced 1 December 2014 section 21(2) Financial Markets (Repeals and Amendments) Act 2013 Section 18(1)(c) amended 1 December 2014 section 21(3) Financial Markets (Repeals and Amendments) Act 2013 Section 18(1)(d) inserted 1 December 2014 section 21(4) Financial Markets (Repeals and Amendments) Act 2013 Section 18(2) repealed 1 December 2014 section 21(5) Financial Markets (Repeals and Amendments) Act 2013
19: Who is permitted to provide class service to retail clients
1: The following persons are permitted to provide a class service to a retail client:
a: an authorised financial adviser:
b: a QFE adviser:
c: a registered person (whether an individual or an entity):
d: an exempt provider (whether an individual or an entity), other than an overseas financial adviser ( see section 5
2: However,—
a: subsection (1) does not permit a person to provide a class service that is a discretionary investment management service; and
b: see Part 6 Section 19 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 19(2) inserted 1 December 2014 section 22 Financial Markets (Repeals and Amendments) Act 2013
20: Who is permitted to provide financial adviser service to wholesale clients
The following persons are permitted to provide a financial adviser service to a wholesale client:
a: an authorised financial adviser:
b: a QFE adviser:
c: a registered person (whether an individual or an entity):
d: an exempt provider (whether an individual or an entity). Section 20 substituted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Restrictions on holding out Heading inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
20A: Who may hold themselves out as authorised financial adviser
1: A person ( A B
1A: A person ( A B
2: Contraventions of this section may give rise to an offence ( see section 115 Section 20A inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Section 20A(1A) inserted 1 December 2014 section 23 Financial Markets (Repeals and Amendments) Act 2013
20B: Who may hold themselves out as financial planner or investment planner
1: A person ( A B
a: a financial planner or an investment planner unless A or B (as applicable) is an authorised financial adviser who is authorised to provide investment planning services under section 55
b: offering a financial or an investment planning service unless A or B (as applicable) is—
i: an authorised financial adviser who is authorised to provide investment planning services under section 55
ii: acting through an authorised financial adviser who is so authorised.
2: Contraventions of this section may give rise to an offence ( see section 115 Section 20B inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
20C: Who may hold themselves out as QFE or having QFE status
1: A person ( A B
2: Contraventions of this section may give rise to an offence ( see section 115 Section 20C inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010 Persons acting in course of business of employers and principals Heading inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
20D: Application of FSP Act to employees, etc
Any person required, by this Act, to register to provide a financial adviser service must be treated, under the FSP Act, as being in the business of providing a financial service for the purposes of that Act (even if the person does not carry on that business). Section 20D inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
20E: Who must be member of dispute resolution scheme
A person ( A B section 48
a: B is a member of an approved dispute resolution scheme; and
b: A's obligation to be a member of an approved dispute resolution scheme arises only by virtue of the financial adviser services provided on behalf of B's business. Section 20E inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
20F: Who is responsible for financial adviser obligations
1: If a financial adviser service is provided by a person ( A B
a: if it is a personalised service provided to a retail client (unless paragraph (b) applies), both A and B:
b: if A is a QFE adviser and B is the QFE or a member of a QFE group, B only:
c: in any other case, B only.
2: If B has a financial adviser obligation under subsection (1),—
a: any act or omission by A is also treated as being done by B; and
b: if it is necessary to show the state of mind of B, it is sufficient to show that A had that state of mind.
3: However, subsection (1) does not apply to the financial adviser obligations in sections 37 45
4: Subsections (1) to (3) do not affect the liability of A or B under any other Act or rule of law for A's actions. Section 20F inserted 1 July 2010 section 10 Financial Advisers Amendment Act 2010
2: Financial advisers’ disclosure and conduct obligations
Disclosure obligations for personalised services for retail clients Heading substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010
21: What is disclosure obligation and when does it apply
1: A disclosure obligation under this Part is an obligation to make disclosure under or in accordance with sections 22 to 31
2: A disclosure obligation applies only to a personalised service provided to a retail client.
3: Contravention of a disclosure obligation may give rise to an offence ( see section 117 Section 21 substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010
22: Financial adviser must make disclosure before providing personalised service to retail client
1: A financial adviser who provides a personalised service to a retail client must disclose prescribed information to the client, in accordance with this Act and the regulations,—
a: before providing the service; or
b: if not practicable before, as soon as practicable after providing the service.
1A: However, an authorised financial adviser who provides a personalised DIMS to a retail client must instead disclose prescribed information to the client, in accordance with this Act and the regulations,—
a: both—
i: before the investment authority is granted; and
ii: before any exercise of the investment authority (unless there has been previous disclosure that is not out of date under section 29
b: if not practicable before, as soon as practicable after the time applying under paragraph (a).
2: Subsection (1) does not apply to a QFE adviser acting in that capacity. Section 22 substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010 Section 22(1A) inserted 1 December 2014 section 24 Financial Markets (Repeals and Amendments) Act 2013
23: What financial adviser must disclose
1: Regulations for the purposes of prescribing disclosure for financial advisers under section 22
a: for authorised financial advisers, in relation to any or all of the matters referred to in subsection (2).
b: for other financial advisers, in relation to any or all of the matters referred to in subsection (2)(a) to (g).
2: The matters are—
a: contact details:
b: the type of financial adviser:
c: financial adviser services provided (including financial products in relation to which a financial adviser service is provided):
ca: information relating to any discretionary investment management service or any broking service provided:
d: fees:
e: material interests, relationships, or associations:
f: remuneration:
g: dispute resolution arrangements:
h: professional or business experience relevant to performance of a financial adviser service:
i: criminal convictions:
j: disciplinary proceedings:
k: adverse findings by a court or the FMA
l: bankruptcy or other insolvency proceedings:
m: indemnity insurance:
n: matters required to be disclosed by the authorised financial adviser's terms and conditions of authorisation. Section 23 substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010 Section 23(2)(ca) inserted 1 December 2014 section 25 Financial Markets (Repeals and Amendments) Act 2013 Section 23(2)(k) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
24: Disclosure statement
1: Disclosure under section 22(1)
2: A disclosure statement must—
a: be in writing; and
b: state when it was prepared; and
c: state the name, address, trading name (if any), telephone number, fax number, and email address of the financial adviser; and
d: be—
i: provided to the client; or
ii: delivered or sent to the client at the client's last known address or an address (including an electronic address) specified by the client for that purpose.
3: Regulations may provide for the form that a disclosure statement must take. Section 24 substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010
25: QFE must make disclosure before personalised service provided to retail client
1: A QFE or a member of a QFE group that, acting through a QFE adviser, provides a personalised service to a retail client must ensure that prescribed information is disclosed to the client, in accordance with this Act and the regulations,—
a: before the service is provided; or
b: if not practicable before, as soon as practicable after the service is provided.
2: Regulations for the purposes of this section may require disclosure in relation to any or all of the following matters:
a: contact details:
b: the type of financial adviser:
c: dispute resolution arrangements:
d: matters required to be disclosed by the QFE's terms and conditions of a grant of QFE status:
e: whether the QFE or member of the QFE group provides any other licensed service.
3: Regulations may provide for the form that the disclosure must take. Section 25 substituted 1 July 2010 section 11 Financial Advisers Amendment Act 2010
26: Disclosure by qualifying financial entity
Section 26 repealed 1 May 2011 section 82 Financial Markets Authority Act 2011
27: Disclosure must not be misleading, deceptive, or confusing
Disclosure under a disclosure obligation must not be misleading, deceptive, or confusing at the time that the disclosure is made.
28: Disclosure of additional information
1: Disclosure of the matters that must be disclosed under a disclosure obligation may be accompanied by disclosure of additional information.
2: Additional disclosure that accompanies disclosure under a disclosure obligation must not be deceptive, misleading, or confusing at the time that it is made.
29: No compliance with disclosure obligations if disclosure out of date
1: Previous disclosure does not discharge a person’s disclosure obligation if the previous disclosure is out of date when the financial adviser service is performed or, in the case of a discretionary investment management service, the investment authority is exercised
2: The previous disclosure is out of date if—
a: since the date of the disclosure there has been a material change in any matter that must be disclosed; and
b: a reasonable person in the position of the person for whom the financial adviser service is performed ( A
i: to proceed with a financial adviser service by the financial adviser in question ( B
ii: to proceed with financial advice already given by B:
iii: about the weight that A gives to financial advice by B:
iv: to postpone or countermand the performance of a financial adviser service or, in the case of a discretionary investment management service, change any instruction in relation to the service
3: Subsection (1) does not apply if—
a: the previous disclosure was by way of a disclosure statement; and
b: before the financial adviser service is performed, B gives A—
i: a new disclosure statement that is up to date; or
ii: additional written information that, when read with the original disclosure statement, updates the disclosure statement. Section 29(1) amended 1 December 2014 section 26(1) Financial Markets (Repeals and Amendments) Act 2013 Section 29(2)(b)(iv) amended 1 December 2014 section 26(2) Financial Markets (Repeals and Amendments) Act 2013
29A: Further prescribed information to be made available to clients of discretionary investment management service
1: An authorised financial adviser who provides a personalised DIMS to a retail client must, at the request of the client or at the prescribed times or on the occurrence of the prescribed events, make available to the client the information that is required to be made available under this section by the regulations.
2: The information must be made available in the prescribed manner.
3: The information must, if required by the regulations, be presented, calculated, or prepared in accordance with the frameworks and methodologies specified in notices issued by the FMA under subpart 4 Section 29A inserted 1 December 2014 section 27 Financial Markets (Repeals and Amendments) Act 2013
30: Advertisement advertising financial adviser services by authorised financial adviser must refer to disclosure statement
Any advertisement advertising financial adviser services by an authorised financial adviser must state that a disclosure statement is available, on request and free of charge.
31: Disclosure by 2 or more financial advisers in joint disclosure statement
1: Subject to regulations being made under subsection (3), disclosure may be made by 2 or more financial advisers in a joint disclosure statement.
2: A joint disclosure statement must—
a: comply with section 24(2)(a)
b: comply with regulations prescribing the form of the joint disclosure statement; and
c: be—
i: provided to the client; or
ii: delivered or sent to the client at the client's last known address or an address (including an electronic address) specified by the client for that purpose.
3: Regulations may prescribe—
a: when, and subject to what terms and conditions, disclosure may be made in a joint disclosure statement; and
b: the form of a joint disclosure statement. Section 31(2)(c) substituted 1 July 2010 section 12 Financial Advisers Amendment Act 2010 Conduct obligations
32: What is conduct obligation and when does it apply
1: A conduct obligation under this Part is an obligation under sections 33 to 48
2: The conduct obligations in—
a: sections 33 to 35
b: section 36
c: sections 37 to 45A
d: sections 46 to 48 Section 32 substituted 1 July 2010 section 13 Financial Advisers Amendment Act 2010 Section 32(2)(c) replaced 1 December 2014 section 28 Financial Markets (Repeals and Amendments) Act 2013 Conduct obligations that apply to all financial advisers Heading repealed 1 July 2010 section 13 Financial Advisers Amendment Act 2010
33: Financial adviser must exercise care, diligence, and skill
1: A financial adviser, when providing a financial adviser service, must exercise the care, diligence, and skill that a reasonable financial adviser would exercise in the same circumstances.
2: In determining the degree of care, diligence, and skill that a reasonable financial adviser would exercise, the following matters must be taken into account (without limitation):
a: the nature and requirements of the financial adviser's client or (if it is a class service) of the clients intended to receive the service; and
b: the nature of the service provided and the circumstances in which the service is provided; and
c: the type of financial adviser.
3: This section does not apply to a service to the extent that section 40 Section 33 substituted 1 July 2010 section 13 Financial Advisers Amendment Act 2010 Section 33(3) inserted 1 December 2014 section 29 Financial Markets (Repeals and Amendments) Act 2013
34: Financial adviser must not engage in misleading or deceptive conduct
1: A financial adviser must not engage in conduct in relation to the provision of
2: A person who knowingly or recklessly contravenes subsection (1) commits an offence ( see section 118 1988 No 234 s 13(1) Section 34(1) amended 1 July 2010 section 14 Financial Advisers Amendment Act 2010
35: Advertisement by financial adviser must not be misleading, deceptive, or confusing
1: A financial adviser must not advertise a financial adviser service in a way that is misleading, deceptive, or confusing.
2: A person who knowingly or recklessly contravenes subsection (1) commits an offence ( see section 119
36: Regulations may impose specific conduct obligations for class services to retail clients
A financial adviser must, when providing a class service to a retail client, comply with any 1 or more of the following requirements that apply under the regulations (if any):
a: ensure that the prescribed warning is given in the prescribed manner that the class service is not personalised:
b: ensure compliance with the prescribed requirements relating to the competency of, or the use of adequate care, diligence, and skill by, the persons involved in providing the service (for example, a requirement to obtain a certificate from the principal officers of the adviser or a requirement to obtain the approval of financial advice by an authorised financial adviser or individual registered financial adviser):
c: comply with any prescribed record-keeping or procedural requirements relating to those matters. Section 36 substituted 1 July 2010 section 15 Financial Advisers Amendment Act 2010 Conduct obligations that apply to authorised financial advisers only
37: Authorised financial adviser must comply with code
An authorised financial adviser must comply with the code.
38: Authorised financial adviser must not recommend acquisition of FMCA financial products if offer contravenes financial markets legislation
1: An authorised financial adviser ( A
a: when the FMCA financial products were or are offered under a regulated offer, the offer contravened or contravenes any financial markets legislation; and
b: the contravention has not been remedied; and
c: A knows or ought to know that, when the FMCA financial products were or are offered, the offer contravened or contravenes any financial markets legislation.
2: A person who contravenes subsection (1) commits an offence ( see section 121 1988 No 234 s 41S Section 38 replaced 1 December 2014 section 30 Financial Markets (Repeals and Amendments) Act 2013
39: Duties when providing discretionary investment management service to retail clients
An authorised financial adviser, when providing a personalised DIMS to a retail client, must—
a: act honestly in providing that service; and
b: in exercising any powers under or performing any duties under the client agreement or investment authority for the service, act in the best interest of the client; and
c: not make use of information acquired through providing that service in order to—
i: gain an improper advantage for the adviser or any other person; or
ii: cause detriment to the client. Section 39 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
40: Duty to comply with professional standard of care in providing discretionary investment management service to retail clients
An authorised financial adviser who provides a personalised DIMS to a retail client must, in exercising any power or performing any duties under the client agreement or investment authority for the service, exercise the care, diligence, and skill that a prudent person engaged in that profession would exercise in the same circumstances. Section 40 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
41: Need for client agreement with retail client for discretionary investment management services
1: An authorised financial adviser must ensure that there is a client agreement governing a personalised DIMS provided to a retail client.
2: The client agreement must be entered into at the same time as or before the investment authority is granted by the client.
3: The authorised financial adviser must provide the discretionary investment management service to the client in accordance with that client agreement and an investment authority that complies with section 43 Section 41 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
42: Contents, form, and effect of client agreement
1: A client agreement required by section 41
2: The client agreement is treated as containing any provision that is implied into it by or under this Act.
3: The client agreement must be in writing and be contained in 1 or more documents that are legally enforceable as between the retail client and the authorised financial adviser (or the business on whose behalf the authorised financial adviser is providing the service).
4: The client agreement has no effect to the extent that it contravenes, or is inconsistent with, this Act or any term implied into it by or under this Act. Section 42 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
43: Requirement for agreed investment authority with retail client
1: An authorised financial adviser must ensure that there is a written investment authority granted by the client for a personalised DIMS provided to a retail client.
2: The authorised financial adviser must ensure that the investment authority—
a: clearly discloses the scope of the investment authority, including any limits on the nature or type of investments and on the proportion of each type of asset invested in; or
b: if there are no limits on any of the matters referred to in paragraph (a), or the authority can be changed without the prior written consent of the client, clearly discloses that fact.
3: The investment authority must provide for the matters set out in this section in accordance with the frameworks and methodologies specified in notices issued by the FMA under subpart 4 Section 43 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
44: Custodial duties under discretionary investment management service provided to retail client
1: An authorised financial adviser who provides a personalised DIMS to a retail client must ensure that the client money and client property that is held under the service is held on behalf of the client by 1 or more persons that meet the custodianship requirements set out in subsection (2).
2: A custodian of the client money and client property—
a: must be a separate body corporate that the financial adviser believes, on reasonable grounds, to be appropriate to hold, and safeguard, the money or property; and
b: may be an associated person of the financial adviser (or the business on whose behalf the financial adviser is providing the service), other than by virtue of the custodianship, only if—
i: that is permitted by conditions of the authorisation of the authorised financial adviser; and
ii: those conditions are observed.
3: This section does not apply—
a: to the extent that money or property is held directly by the client:
b: in the prescribed circumstances. Section 44 replaced 1 December 2014 section 31 Financial Markets (Repeals and Amendments) Act 2013
45: Authorised financial adviser must comply with terms and conditions of his or her authorisation
1: An authorised financial adviser must comply with the terms and conditions of his or her authorisation.
2: A person who contravenes subsection (1) commits an offence ( see section 126
45A: Authorised financial adviser may report breach of Act to
FMA
1: If an authorised financial adviser ( A FMA
2: If A makes a report under subsection (1) in good faith,—
a: no civil, criminal, or disciplinary proceedings may be brought against A in respect of the report:
b: no person may terminate the appointment or employment of A by reason of the report:
c: no tribunal, body, or authority that has jurisdiction in respect of the professional conduct of A may make an order against, or do any act in relation to, A in respect of the report:
d: the FMA
i: A consents in writing to the disclosure of the information; or
ii: the FMA
3: If A makes a report under subsection (1) (whether or not in good faith), the FMA
a: the client consents in writing to the disclosure of the information; or
b: the FMA Section 45A inserted 1 July 2010 section 18 Financial Advisers Amendment Act 2010 Section 45A heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 45A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 45A(2)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 45A(2)(d)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 45A(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 45A(3)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Conduct obligations related to QFEs Heading substituted 1 July 2010 section 19 Financial Advisers Amendment Act 2010
46: QFE must comply with terms and conditions of grant of QFE status
1: Every QFE and every partner entity of a QFE must comply with the terms and conditions of the QFE's grant of QFE status.
2: Contraventions of this section give rise to the offences described in section 129 Section 46 substituted 1 July 2010 section 19 Financial Advisers Amendment Act 2010
47: QFE or member of QFE group must not engage in misleading or deceptive conduct in relation to financial adviser service by employee, agent, or nominated representative
1: A QFE or a member of a QFE group must not, in acting through an employee, agent, or nominated representative, engage in conduct in relation to a financial adviser service that is misleading or deceptive or likely to mislead or deceive.
2: Contraventions of this section give rise to the offences described in section 130 Section 47 substituted 1 July 2010 section 19 Financial Advisers Amendment Act 2010
48: Advertisement by QFE or member of QFE group in relation to financial adviser service must not be misleading, deceptive, or confusing
1: A QFE or a member of a QFE group must not advertise a financial adviser service in a way that is misleading, deceptive, or confusing.
2: Contraventions of this section give rise to the offences described in section 131 Section 48 substituted 1 July 2010 section 19 Financial Advisers Amendment Act 2010 FMA's Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
49: FMA
1: This section applies if the FMA
2: The FMA FMA FMA
3: If the FMA FMA
4: The direction may—
a: direct the financial adviser to comply with the conduct or disclosure obligation:
b: stipulate any steps that the financial adviser must take in order to comply with the obligation:
c: require the financial adviser to report to the FMA FMA's
5: A financial adviser who fails to comply with a direction by the FMA see section 135
6: Nothing in this section precludes the FMA Section 49 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(4)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(4)(c) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 49(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
3: Authorised financial advisers and qualifying financial entities
50: Outline of this Part
1: This Part is divided into 2 subparts.
2: Subpart 1 FMA
3: Subpart 2 QFE FMA Section 50(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 50(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
1: Authorised financial advisers
51: Who is authorised financial adviser
An authorised financial adviser is an individual who is—
a: registered; and
b: authorised.
52: Who may apply to be authorised
Any individual may apply to the FMA Section 52 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
53: Application to be authorised
An application to be authorised must be—
a: in the prescribed form (if any); and
b: accompanied by the prescribed fee (if any).
54: Eligibility to be authorised
A person ( A for a financial adviser service
a: the FMA
i: A is registered or complies with section 13(a) and (b)
ii: A is a person of good character; and
iii: A meets the levels of competency, knowledge, and skills specified in the code for an authorised financial adviser; and
iiia: A meets the eligibility criteria (if any) that are prescribed by the regulations for that kind of financial adviser service; and
iv: A is not debarred from applying for authorisation; and
b: the FMA
i: is not aware, after making any inquiries that it considers appropriate
ii: if the FMA Section 54 amended 1 December 2014 section 32(1) Financial Markets (Repeals and Amendments) Act 2013 Section 54(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 54(a)(iiia) inserted 1 December 2014 section 32(2) Financial Markets (Repeals and Amendments) Act 2013 Section 54(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 54(b)(i) amended 1 July 2010 section 20 Financial Advisers Amendment Act 2010 Section 54(b)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
55: FMA
1: If an applicant for authorisation is eligible, the FMA
a: providing any financial adviser service, or specified kinds of financial adviser services, in relation to any category 1 product, specified category 1 products, or specified classes of category 1 product:
b: providing a personalised DIMS
c: providing investment planning services generally or in specified cases:
d: providing, in any case that is specified in the regulations for the purposes of this paragraph, services of the kind referred to in paragraph (a) or (b) or both, but in relation to any category 2 product, specified category 2 products, or specified classes of category 2 products.
1A: If the scope of discretionary investment management services that may be authorised under this Act is limited by the regulations, a new or renewed authorisation for that service under subsection (1)(b) must not exceed that prescribed scope.
2: The authorisation may be subject to terms and conditions relating to financial adviser services or broking services or to both (and may apply to services provided by an authorised financial adviser even if the adviser is providing that service as, or on behalf of the business of, a DIMS licensee under the Financial Markets Conduct Act 2013
3: If the FMA FMA
a: the authorisation; and
b: the terms and conditions (if any); and
c: the period of authorisation.
4: The FMA
5: If an applicant for authorisation is not eligible, the FMA
a: decline the application (in whole or in part)
b: notify the applicant in writing of—
i: the decision and the reasons for it; and
ii: the applicant’s right of appeal against the decision.
6: Subsection (1)(d) does not limit or affect anything in section 18 Section 55 substituted 1 July 2010 section 21 Financial Advisers Amendment Act 2010 Section 55 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55(1)(b) amended 1 December 2014 section 33(1) Financial Markets (Repeals and Amendments) Act 2013 Section 55(1A) inserted 1 December 2014 section 33(2) Financial Markets (Repeals and Amendments) Act 2013 Section 55(2) amended 1 December 2014 section 33(3) Financial Markets (Repeals and Amendments) Act 2013 Section 55(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55(5)(a) amended 1 December 2014 section 33(4) Financial Markets (Repeals and Amendments) Act 2013
55A: Variation of terms and conditions and period of authorisation
1: An authorised financial adviser may apply to the FMA
2: The FMA
3: The FMA
a: the business of the adviser has changed in a way that poses a material risk to consumers:
b: the adviser has been involved in market practices that are, in material respects, inconsistent with the purpose of this Act.
4: The FMA
5: After considering any response received within the period specified in the notice, the FMA
6: The FMA
7: On completion of the review, the FMA
a: confirm 1 or more of the variations effected by subsection (5):
b: cancel 1 or more of the variations effected by subsection (5):
c: propose further terms and conditions by giving the authorised financial adviser a notice under subsection (3).
8: The FMA Section 55A inserted 1 July 2010 section 21 Financial Advisers Amendment Act 2010 Section 55A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(7) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 55A(8) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
56: FMA
1: If the FMA FMA
a: the name and business address of the applicant; and
b: the terms and conditions (if any) of the authorisation; and
c: the period of authorisation.
2: The FMA Section 56 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 56(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 56(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
57: Termination of authorisation
1: A person’s authorisation as an authorised financial adviser terminates when—
a: the period of authorisation (including any extension under section 58(5)
b: the FMA FMA
c: the person ceases to be registered; or
d: the FMA section 59(2)
2: The FMA Section 57(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 57(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 57(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
58: Renewal of authorisation
1: An authorised financial adviser may apply for renewal of authorisation.
2: An application for renewal of authorisation must be—
a: made in the prescribed form (if any); and
b: accompanied by the prescribed fee (if any).
3: Subject to subsection (4), sections 52 to 56
4: In addition to the matters specified in section 54 FMA
a: the applicant for renewal of authorisation has complied with the Act, the terms and conditions of authorisation, and the minimum professional standards for authorised financial advisers prescribed by the code; or
b: any failure, on the part of the applicant, to comply is not sufficiently serious or recent to preclude the renewal of the applicant’s authorisation.
5: If an application for renewal of authorisation has been made but not determined before the date on which the authorisation is due to expire, the authorisation continues in force until the application is determined.
6: The renewal of authorisation takes effect from the date of expiry of the previous authorisation. Section 58(4) substituted 1 July 2010 section 22 Financial Advisers Amendment Act 2010 Section 58(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 FMA's Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
59: FMA's
1: This section applies if the FMA A
a: has ceased to be eligible for authorisation; or
b: has breached or is in breach of this Act (excluding section 37
c: has breached or is in breach of a term or condition of his or her authorisation; or
d: is the subject of a recommendation by the disciplinary committee under section 101(3)(a), (b), or (c)
e: has failed to pay a fee as required by this Act or the regulations or a levy as required by section 68
2: In any case to which this section applies, the FMA section 60
a: cancel the authorisation; or
b: cancel the authorisation and debar A for a specified period from re-applying for authorisation; or
c: suspend the authorisation for a specified period or until A does any thing that the FMA
d: amend the terms and conditions of the authorisation; or
e: make no order.
3: The FMA
4: If the FMA FMA
5: The FMA
6: The FMA may act under this section in respect of the authorisation in whole or in part. Section 59 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 59(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(1)(e) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 59(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(2)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 59(6) inserted 1 December 2014 section 34 Financial Markets (Repeals and Amendments) Act 2013
60: Reasonable opportunity to be heard
The FMA section 59(2)
a: informed the person concerned in writing as to why it may take any of those actions; and
b: given that person or his or her representative a reasonable opportunity to make written submissions and be heard on the question. Section 60 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
61: FMA
1: This section applies if the FMA terms and conditions
2: The FMA FMA FMA
3: If the FMA FMA
4: The direction may—
a: direct the financial adviser to comply with the terms and conditions:
b: stipulate any steps that the financial adviser must take in order to comply with the terms and conditions:
c: require the financial adviser to report to the FMA FMA's
5: An authorised financial adviser who fails to comply with a direction by the FMA see section 127
6: Nothing in this section precludes the FMA Section 61 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(4)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(4)(c) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 61(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 61(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
62: Other provisions concerning
FMA's
1: At the end of a period of suspension of authorisation, the person’s authorisation is immediately revived, unless his or her authorisation has been further suspended or has been cancelled.
2: Suspension or cancellation under section 59(2) FMA Section 62 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 62(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
2: Qualifying financial entities
63: What is qualifying financial entity (QFE)
1: A QFE is—
a: an entity that is registered and has QFE status; or
b: a number of partner entities that are each registered and jointly have QFE status.
2: For the purposes of any powers or rights conferred, or obligations or liabilities imposed, on QFEs by this Act, a QFE described in subsection (1)(b) is taken to be a separate entity and a person.
3: Subsection (2) does not limit any obligation or liability imposed on a partner entity. Section 63 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010
64: Who may apply for QFE status
An application may be made to the FMA
a: a single entity for QFE status; or
b: 2 or more related bodies corporate for joint QFE status. Section 64 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 64 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
65: Application for QFE status
1: An application for QFE status must—
a: be in the prescribed form (if any); and
b: be accompanied by the prescribed fee (if any).
2: If the applicant or applicants seek to have 1 or more entities approved as associated entities of the proposed QFE, the application must state the name of each entity sought to be approved as an associated entity and how that entity is connected to the applicant or applicants.
3: The application must set out the procedures that the applicant or applicants have for—
a: training employees and nominated representatives; and
b: setting standards for employees and nominated representatives; and
c: monitoring those standards. Section 65 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010
66: Eligibility for QFE status
1: The FMA section 64(a) section 64(b)
a: each entity is registered or is entitled to be registered; and
b: no entity is debarred from applying for QFE status; and
c: on the grant of QFE status and at all times while a QFE, the single entity that will be the QFE has, or the partner entities that will be the QFE together have, the capacity to, and will,—
i: discharge its or their ongoing compliance obligations under section 76
ii: comply with the terms and conditions (if any) of the grant of QFE status; and
iii: maintain procedures to ensure that retail clients of the QFE receive adequate consumer protection.
2: In determining under subsection (1)(c) whether clients receive adequate consumer protection, the FMA
a: consider whether the clients will receive protection of a similar standard to that provided by advisers who are subject to the code; and
b: in doing so, take into account the scope of category 1 products in respect of which those QFE advisers provide financial adviser services. Section 66 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 66(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 66(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
67: FMA
1: If an applicant under section 64(a) section 64(b) FMA
2: The grant of QFE status is subject to the terms and conditions specified or incorporated in the grant.
3: The FMA
4: If the application also asks for the approval of 1 or more entities as associated entities of the QFE, the FMA
a: is registered or is entitled to be registered; or
b: is, under the FSP Act, an affiliated entity of one of the applicants; or
c: is an exempt provider.
5: Even though an entity is eligible under subsection (4), the FMA
a: the absence of a direct connection between the entity and the QFE or any of its partner entities; or
b: concerns specified under section 67A(2) section 67A(4)
6: The FMA Section 67 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 67 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
67A: Associated entities may be subject to special terms and conditions in certain cases
1: This section applies if—
a: an application for QFE status asks for the approval of an entity as an associated entity; but
b: the FMA
2: The FMA
3: The FMA FMA
4: After considering the entity's response, the FMA section 67(2)
5: The terms and conditions referred to in subsection (4) may, without limitation, relate to—
a: the kinds of financial adviser services that may be provided by or on behalf of the associated entity:
b: any conditions and restrictions that are to apply to the provision of those services:
c: the way in which the QFE is to supervise the associated entity. Section 67A inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 67A(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67A(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 67A(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
68: Determination of application
1: If the FMA FMA
a: the grant of QFE status; and
b: the terms and conditions; and
c: the period for which QFE status has been granted.
2: If an applicant under section 64(a) section 64(b) FMA
a: decline the application; and
b: notify the entity or entities of—
i: the decision and the reasons for it; and
ii: the right of an applicant under section 64(a) section 64(b) Section 68 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 68(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 68(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
69: Name of QFE group
1: A QFE group has the name that is approved by the FMA
2: Every application for QFE status that would, if approved, result in the formation of a QFE group must submit a name for the proposed group.
3: The FMA Section 69 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 69(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 69(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
70: FMA
1: If the FMA FMA
a: the name of the entity, or the names of the partner entities, granted QFE status:
b: the period for which QFE status has been granted:
c: if a QFE group has been formed, the name of the group:
d: if associated entities of the QFE have been approved, the names of those entities.
2: The FMA Section 70 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 70 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 70(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Commission’s powers in relation to default by QFE Heading repealed 1 July 2010 section 23 Financial Advisers Amendment Act 2010
71: Addition of associated entities
1: The QFE of a QFE group may apply to the FMA
2: The application must—
a: be in the prescribed form (if any); and
b: be accompanied by the prescribed fee (if any); and
c: name the entities sought to be added as associated entities.
3: Sections 67(3) to (5) 67A
4: The QFE may withdraw the application at any time before it is determined.
5: If the FMA FMA
a: must notify the Registrar in writing of the name of the entity; and
b: may publicly notify the inclusion of the associated entity in the QFE group as it thinks fit. Section 71 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 71(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 71(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
72: Termination of status of associated entity
The status of an associated entity terminates when—
a: the entity ceases to be registered; or
b: the FMA
c: the QFE status of the relevant QFE is terminated. Section 72 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 72(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
73: Certification of QFE group
1: The FMA
2: A certificate issued under subsection (1) is, in the absence of proof to the contrary, evidence of its contents. Section 73 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 73(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
74: Nominated representatives of QFEs or partner entities
1: A QFE or a partner entity may nominate an individual as one of its nominated representatives by—
a: complying with the method (if any) prescribed for that purpose in the terms and conditions of the relevant grant of QFE status; or
b: if those terms and conditions do not prescribe a method for that purpose, recording the nomination in a written instrument that—
i: nominates the individual as a nominated representative of the QFE or of the partner entity; and
ii: is dated and, if the nomination is to take effect on a later date, specifies that later date.
2: An individual may not be the nominated representative of 2 or more entities unless the entities are related bodies corporate.
3: The nomination of an individual as nominated representative is terminated if the entity that nominated the individual—
a: gives written notice to the individual and to the FMA
b: as a result of the termination of QFE status, ceases to be a QFE or part of a QFE.
4: Every QFE must keep an up-to-date record of its nominated representatives. Section 74 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 74(3)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Liability of employee or agent Heading repealed 1 July 2010 section 23 Financial Advisers Amendment Act 2010
75: Variation of terms and conditions and period of grant of QFE status
1: A QFE may apply to the FMA
2: The FMA
3: The FMA
a: the business of the QFE or of the QFE group has changed in a way that poses a material risk to consumers:
b: the QFE or any member of the QFE group has been involved in market practices that are, in material respects, inconsistent with the purpose of this Act.
4: The FMA
5: After considering any response received within the period specified in the notice, the FMA
6: The FMA FMA
7: On completing the review, the FMA
a: confirm 1 or more of the variations effected by subsection (5):
b: cancel 1 or more of the variations effected by subsection (5):
c: propose new terms and conditions or a new period of grant by giving the QFE a further notice under subsection (3). Section 75 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75(7) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75A: Termination of QFE status
1: The QFE status of an entity or of partner entities terminates when—
a: the period of a grant of QFE status expires and the QFE fails for 60 clear days after that expiry to apply for renewal of QFE status; or
b: the FMA FMA
c: the entity that forms, or any of the partner entities that jointly form, the QFE ceases to be registered; or
d: the FMA section 75D(2)
2: The FMA Section 75A inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75A(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75A(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75B: FMA
1: If, because of the complexity of a particular category 1 product, the FMA FMA
2: A notice under subsection (1) may be given only in exceptional circumstances.
3: The FMA FMA
4: After considering the entity's response, the FMA
5: A determination under subsection (4) has effect according to its tenor despite anything in section 18
6: The FMA Section 75B inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75B heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75B(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75B(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75B(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75B(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75C: Renewal of QFE status
1: A QFE may apply for renewal of QFE status.
2: An application for renewal of QFE status must be—
a: made in the prescribed form (if any); and
b: accompanied by the prescribed fee (if any).
3: Sections 64 to 70
4: If an application for renewal of QFE status has been made but not determined before the close of the 60th day after the date on which the period for which QFE status has been granted expires, the QFE status continues until the application is determined.
5: The renewal of QFE status takes effect from the date of expiry of the previous grant of QFE status. Section 75C inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 FMA's Heading inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
75D: FMA's
1: This section applies if the FMA
a: a QFE or any partner entity of a QFE has ceased to be eligible for QFE status; or
b: the QFE or any member of the QFE group has breached or is in breach of this Act or the regulations; or
c: the QFE or any member of the QFE group is in breach of a term or condition of the grant of QFE status; or
d: the QFE or any partner entity of the QFE has failed to comply with a direction given to it by the FMA section 75F
e: the QFE or any partner entity of the QFE has failed to pay a fee as required by this Act or the regulations or a levy as required by section 68
2: In any case to which this section applies, the FMA section 75E
a: cancel the QFE’s status; or
b: cancel the QFE’s status and debar, for a specified period, the entity, any partner entity, and any associated entity of the former QFE from re-applying for QFE status; or
c: suspend the QFE’s status for a specified period or until the suspended QFE or any partner entity, or any associated entity of the suspended QFE, does any thing that the FMA
d: amend the terms and conditions of the QFE’s grant of status; or
e: order that the QFE pay a fine not exceeding $50,000; or
f: censure the QFE; or
g: take no further action.
3: The FMA
4: All partner entities of a QFE are jointly and severally liable for the payment of a fine that the QFE is ordered to pay under subsection (2)(e).
5: The FMA
6: If the FMA FMA
7: The FMA Section 75D inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75D heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 75D(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(1)(e) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 75D(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(2)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75D(7) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75E: Reasonable opportunity to be heard
The FMA section 75D(2)
a: informed the QFE and any partner entities of the QFE in writing of the reasons for taking any of those actions; and
b: given the QFE and any partner entities of the QFE or their representatives a reasonable opportunity to make written submissions and be heard on the question. Section 75E inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75E amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75F: FMA
1: This section applies if the FMA section 76 77 obligation
2: The FMA FMA FMA
3: If the FMA FMA
4: The direction may—
a: direct the QFE or any partner entity, or both, to comply with the obligation:
b: stipulate any steps that the QFE or any partner entity, or both, must take in order to comply with the obligation:
c: require the QFE to report to the FMA FMA's
5: A QFE or a partner entity that fails to comply with a direction by the FMA see section 132
6: Nothing in this section precludes the FMA Section 75F inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75F heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(4)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(4)(c) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 75F(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75F(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
75G: Other provisions concerning
FMA's
1: A fine imposed by the FMA section 75D(2)(e) FMA
2: At the end of a period of suspension of QFE status, a QFE's status is immediately revived, unless its QFE status has been further suspended or has been cancelled.
3: Suspension or cancellation is effective when a written notice of the suspension or cancellation is sent to the QFE by the FMA Section 75G inserted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 75G heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 75G(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 75G(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 QFE’s obligations
76: Ongoing obligations of QFEs and of partner entities
1: A QFE, and every partner entity of a QFE, must—
a: ensure compliance by the QFE and, where the QFE is part of a QFE group, by every member of that group, and by each employee and nominated representative of the QFE and of every member of that group, with the terms and conditions of the grant of QFE status; and
b: where an associated entity is the associated entity not only of the QFE but also of another QFE, ensure compliance by the associated entity and by each employee of the associated entity with the terms and conditions of the grant of QFE status of that other QFE; and
c: in relation to QFE advisers who are employees of the QFE or of a member of the QFE group, ensure compliance by each of those persons with his or her financial adviser obligations; and
d: in relation to QFE advisers who are nominated representatives of the QFE or of a partner entity, ensure compliance by each of those persons with his or her financial adviser obligations, whether or not the nominated representative acts for the QFE or for the partner entity or for any related body corporate of the QFE or the partner entity; and
e: in relation to advisers of the QFE or of a member of the QFE group who perform a financial adviser service that, by virtue of sections 17 18
f: provide the FMA FMA
i: the authorised financial advisers of the QFE and of any members of the QFE group; and
ii: the nominated representatives of the QFE and of any partner entity; and
g: provide an annual report to the FMA section 77
h: comply with a direction by the FMA section 75F
i: comply with its other obligations under this Act and the regulations.
2: A contravention of subsection (1)(e) gives rise to the offences described in section 133 Section 76 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 76(1)(f) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 76(1)(g) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 76(1)(h) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
77: QFE must provide annual report to
FMA
1: Within 5 months after the end of its financial year, a QFE must send to the FMA reporting year
a: certifying that the QFE and every member of the QFE group has complied with its obligations under this Act and the regulations, and with the terms and conditions of the grant of QFE status; and
b: if the QFE or any member of the QFE group has not complied with its obligations under this Act and the regulations, and with the terms and conditions of the grant of QFE status, stating those respects in which it has failed to comply; and
c: if the QFE is aware of any breach of a financial adviser obligation by an employee, agent, or nominated representative of the QFE or of a member of the QFE group, stating—
i: the name of that person; and
ii: the nature of that person’s breach or breaches; and
d: containing any other information required by the regulations; and
e: containing the information (if any) that is required to be contained in the report by the terms and conditions of the grant of QFE status.
2: The report may be submitted by any partner entity of the QFE.
3: The report must be signed by either—
a: a principal officer of the QFE; or
b: a principal officer of a partner entity of the QFE.
4: Contraventions of subsection (1) give rise to the offences described in section 134 Section 77 substituted 1 July 2010 section 23 Financial Advisers Amendment Act 2010 Section 77 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
3A: Brokers' disclosure and conduct obligations
Part 3A inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Who is broker and what is broking service Heading inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77A: Who is broker
1: A broker
2: See section 77U Section 77A inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77B: What is broking service
1: A broking service
a: is the receipt of client money or client property by a person and the holding, payment, or transfer of that client money or client property; and
b: includes the holding of client money or client property by a person ( A C
2: In this Act,— client money
a: received in connection with acquiring, holding, or disposing of a financial product or otherwise in connection with a financial product; and
b: received from, or on account of, a client by a person ( A client property
a: the property is a financial product, is a beneficial interest in a financial product, or is received in connection with a financial product; and
b: the property is received from, or on account of, the client by a person ( A custodial service
3: The mere transmission of a non-transferable instrument payable to another person is not a broking service. Corporations Act 2001 s 766E(1) (Aust) Section 77B inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77B(1) replaced 1 April 2014 section 35(1) Financial Markets (Repeals and Amendments) Act 2013 Section 77B(2) replaced 1 April 2014 section 35(1) Financial Markets (Repeals and Amendments) Act 2013 Section 77B compare note inserted 1 April 2014 section 35(2) Financial Markets (Repeals and Amendments) Act 2013
77C: Other exemptions
1: None of the following is a broking service for the purposes of this Act:
a: a lawyer, incorporated law firm, conveyancing practitioner, qualified statutory accountant
b: a statutory officer, a Crown organisation (other than Public Trust), or the Reserve Bank of New Zealand—
i: discharging any duties or exercising any powers of the statutory officer, the Crown organisation, or the Reserve Bank of New Zealand under any enactment; or
ii: doing anything that is incidental to the discharge of the functions of the statutory officer, the Crown organisation, or the Reserve Bank of New Zealand under any enactment:
c: an operator of a designated settlement system under section 156N
d: a person providing a relevant service in the course of acting as a derivatives issuer under a licence under Part 6
e: an employer providing a relevant service to an employee in connection with a financial product made available through the person's workplace:
f: any other person providing a relevant service in circumstances exempted under the regulations.
2: If subsection (1) applies to a person ( A
3: In this section, relevant service Section 77C inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77C(1)(a) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 77C(1)(d) replaced 1 December 2014 section 36 Financial Markets (Repeals and Amendments) Act 2013 Disclosure obligations for services for retail clients Heading inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77D: What is disclosure obligation and when does it apply
1: A disclosure obligation under this Part is an obligation to make disclosure under or in accordance with sections 77E to 77I
2: A disclosure obligation applies only to a broking service provided for a retail client.
3: Contravention of a disclosure obligation may give rise to an offence ( see section 117 Section 77D inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77E: Broker must make disclosure before receiving client money or client property from retail client
A broker must disclose prescribed information to a retail client, in accordance with this Act and the regulations,—
a: before receiving client money or client property from or on behalf of the client; or
b: if not practicable before, as soon as practicable after receiving client money or client property from or on behalf of the client. Section 77E inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77F: What broker must disclose and form of disclosure
1: Regulations for the purposes of prescribing disclosure for brokers under section 77E
a: contact details:
b: fees:
c: material interests, relationships, or associations:
d: remuneration:
e: dispute resolution arrangements:
f: in relation to the broker and, if the broker is an entity, each principal officer,—
i: criminal convictions:
ii: disciplinary proceedings:
iii: adverse findings by a court or the FMA
iv: bankruptcy or other insolvency proceedings:
g: information relating to the broking service provided:
h: indemnity insurance.
2: Regulations for the purposes of this section may provide for the form that the disclosure must take. Section 77F inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77F(1)(f)(iii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77F(1)(g) replaced 1 April 2014 section 37 Financial Markets (Repeals and Amendments) Act 2013
77G: Disclosure must not be misleading, deceptive, or confusing
Disclosure under a disclosure obligation must not be misleading, deceptive, or confusing at the time that the disclosure is made. Section 77G inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77H: Disclosure of additional information
1: Disclosure of the matters that must be disclosed under a disclosure obligation may be accompanied by disclosure of additional information.
2: Additional disclosure that accompanies disclosure under a disclosure obligation must not be misleading, deceptive, or confusing at the time it is made. Section 77H inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77I: No compliance with disclosure obligation if disclosure out of date
1: Previous disclosure does not discharge a broker from a disclosure obligation if the previous disclosure is out of date when the client money or client property is received by the broker.
2: The previous disclosure is out of date if,—
a: since the date of the disclosure, there has been a material change in any matter that must be disclosed; and
b: a reasonable person in the position of the client would consider that the change would materially affect any of the following decisions by the client:
i: to proceed with the broking service by the broker in question ( B
ii: to postpone or countermand the performance of a broking service by B. Section 77I inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Brokers' conduct obligations Heading inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77J: What is conduct obligation and when does it apply
1: A conduct obligation under this Part is an obligation under sections 77K to 77T
2: The conduct obligations in sections 77K to 77O
3: The conduct obligations in sections 77P to 77T
a: apply to broking services provided to a retail client; and
ab: apply to custodial and other broking services provided to every investor under a retail service of a DIMS licensee (as provided by section 446
ac: otherwise apply to broking services provided to a wholesale client only if provided by the regulations; and
b: do not apply to a broker within the meaning of the Insurance Intermediaries Act 1994 section 14 15 Section 77J inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77J(3)(a) replaced 1 April 2014 section 38 Financial Markets (Repeals and Amendments) Act 2013 Section 77J(3)(ab) inserted 1 April 2014 section 38 Financial Markets (Repeals and Amendments) Act 2013 Section 77J(3)(ac) inserted 1 April 2014 section 38 Financial Markets (Repeals and Amendments) Act 2013
77K: Broker must exercise care, diligence, and skill
1: A broker must, when providing a broking service, exercise the care, diligence, and skill that a reasonable broker would exercise in the same circumstances.
2: In determining the degree of care, diligence, and skill that a reasonable broker would exercise, the following matters must be taken into account (without limitation):
a: the nature and requirements of the broker's client; and
b: the nature of the service provided and the circumstances in which the service is provided. Section 77K inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77L: Broker must not engage in misleading or deceptive conduct
1: A broker must not engage in conduct in relation to the provision of a broking service that is misleading or deceptive or likely to mislead or deceive.
2: Contravention of this section may give rise to an offence ( see section 118 Section 77L inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77M: Advertisement of broking services must not be misleading, deceptive, or confusing
1: A broker must not advertise a broking service in a way that is misleading, deceptive, or confusing.
2: Contravention of this section may give rise to an offence ( see section 119 Section 77M inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77N: Restriction on use of term sharebroker
Section 77N repealed 1 April 2014 section 39 Financial Markets (Repeals and Amendments) Act 2013
77O: Broker must not receive client money if offer contravenes financial markets legislation
1: A broker ( A
a: when the FMCA financial products were or are offered under a regulated offer, the offer contravened or contravenes any financial markets legislation; and
b: the contravention has not been remedied; and
c: A knows or ought to know that, when the FMCA financial products were or are offered, the offer contravened or contravenes any financial markets legislation.
2: Contravention of this section may give rise to an offence ( see section 134B Section 77O replaced 1 December 2014 section 40 Financial Markets (Repeals and Amendments) Act 2013 Obligations for handling client money and client property Heading replaced 1 April 2014 section 41 Financial Markets (Repeals and Amendments) Act 2013
77P: Broker must pay client money into separate trust account
and hold client property on trust
1: A broker who receives client money or client property, in his, her, or its capacity as a broker for a
a: must hold the client money or client property, or ensure the client money or client property is held, on trust for the client; and
b: must ensure that the client money is paid promptly into a bank in New Zealand (or into any other prescribed entity) to—
i: a trust account of the broker or of a related person or entity specified in the regulations; or
ii: (if section 44 section 445
1A: A broker must ensure that the client money and client property are held separate from money or property held by or for the broker, or other person referred to in subsection (1)(b)(i) or (ii), on its own account.
1B: A broker must comply with any prescribed duties and other requirements in relation to the client money and client property held on trust under this section.
2: Contravention of this section may give rise to an offence ( see section 134C Section 77P inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77P heading amended 1 April 2014 section 42(1) Financial Markets (Repeals and Amendments) Act 2013 Section 77P(1) amended 1 April 2014 section 42(2) Financial Markets (Repeals and Amendments) Act 2013 Section 77P(1)(b) replaced 1 April 2014 section 42(3) Financial Markets (Repeals and Amendments) Act 2013 Section 77P(1A) inserted 1 December 2014 section 42(4) Financial Markets (Repeals and Amendments) Act 2013 Section 77P(1B) inserted 1 April 2014 section 42(4) Financial Markets (Repeals and Amendments) Act 2013
77Q: Broker must account for client money and client property
1: A broker who receives or holds client money and client property on trust for a
2: Contravention of this section may give rise to an offence ( see section 134D Section 77Q inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77Q(1) amended 1 April 2014 section 43 Financial Markets (Repeals and Amendments) Act 2013
77R: Broker must keep records of client money and client property
1: A broker who receives or holds client money on trust for a
2: A broker who receives or holds client property on trust for a
a: identify the client property; and
b: show the date when the client property was received; and
c: if the client property has been disposed of, show when
2A: The broker must also keep all other prescribed records.
3: The broker must—
a: keep the records required by this section, or ensure that they are kept, in a manner that enables those records to be conveniently and properly audited, reviewed, or inspected; and
b: comply with the prescribed requirements (if any) relating to those records and their audit, review, or inspection.
4: Contravention of any of subsections (1) to (3) may give rise to an offence ( see section 134E Section 77R inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77R(1) amended 1 April 2014 section 44(1) Financial Markets (Repeals and Amendments) Act 2013 Section 77R(2) amended 1 April 2014 section 44(2) Financial Markets (Repeals and Amendments) Act 2013 Section 77R(2)(c) amended 1 April 2014 section 44(3) Financial Markets (Repeals and Amendments) Act 2013 Section 77R(2A) inserted 1 April 2014 section 44(4) Financial Markets (Repeals and Amendments) Act 2013 Section 77R(3) replaced 1 April 2014 section 44(5) Financial Markets (Repeals and Amendments) Act 2013
77RA: Broker must report on client money and client property
1: A broker must, in the prescribed circumstances, provide confirmation information to a client or other prescribed persons in respect of client money or client property received or held on behalf of the client.
2: The confirmation information must be provided in the prescribed manner.
3: In this section, confirmation information Section 77RA inserted 1 April 2014 section 45 Financial Markets (Repeals and Amendments) Act 2013
77S: Restrictions on use of client money and client property
1: A person must not use or apply client money or client property received or held on trust for a
a: as expressly directed by the client (either generally or specifically); or
b: in accordance with section 77P
2: Contravention of this section may give rise to an offence ( see section 134F Section 77S inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77S(1) amended 1 April 2014 section 46 Financial Markets (Repeals and Amendments) Act 2013
77T: Protection of client money and client property held on trust
1: The client money or client property that is received or held by a broker on trust for a
a: is not available for the payment of the debts of any other creditor of the broker; and
b: is not liable to be attached or taken in execution under the order or process of any court at the instance of another creditor of the broker.
2: Nothing in section 77S Section 77T inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77T(1) amended 1 April 2014 section 47 Financial Markets (Repeals and Amendments) Act 2013 Application of Trusts Act 2019 Heading inserted 30 January 2021 section 177 Trusts Act 2019
77TA: Application of Trusts Act 2019
1: This section applies to a trust constituted (or to be constituted) for the purposes of section 77P
2: The following provisions of the Trusts Act 2019
a: section 29
b: section 39
c: sections 45 to 48
d: sections 49 to 55
e: section 56
f: section 72
g: sections 81 to 85
h: sections 142 to 148
i: sections 153 to 158 Section 77TA inserted 30 January 2021 section 177 Trusts Act 2019 Persons acting in course of business of employers or principals Heading inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010
77U: Who is responsible for broker obligations
1: If a broking service is provided by a person ( A B
2: If B has a broker obligation under subsection (1)—
a: any act or omission by A is also treated as being done by B; and
b: if it is necessary to show the state of mind of B, it is sufficient to show that A had that state of mind.
3: Subsections (1) and (2) do not affect the liability of A or B under any other Act or rule of law for A's actions. Section 77U inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 FMA's Heading inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
77V: FMA
1: This section applies if the FMA
2: The FMA FMA FMA
3: If the FMA FMA
4: The direction may—
a: direct the broker to comply with the disclosure or conduct obligation:
b: stipulate any steps that the broker must take in order to comply with the obligation:
c: require the broker to report to the FMA FMA's
5: A broker who fails to comply with a direction by the FMA see section 134G
6: Nothing in this section precludes the FMA Section 77V inserted 1 July 2010 section 24 Financial Advisers Amendment Act 2010 Section 77V heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(4)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(4)(c) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 77V(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 77V(6) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
4: How financial advisers
and brokers Part 4 heading amended 1 July 2010 section 25 Financial Advisers Amendment Act 2010
78: Outline of this Part
1: This Part is divided into 3 subparts.
2: Subpart 1
a:
b: the establishment of a code of professional conduct for authorised financial advisers; and
c: the establishment and functions of a code committee.
3: Subpart 2
a: the procedure for dealing with complaints in relation to an authorised financial adviser; and
b: the establishment of a disciplinary committee.
4: Subpart 3 Section 78(2)(a) repealed 1 May 2011 section 6 Financial Advisers Amendment Act 2011
1: Code of professional conduct Subpart 1 heading amended 1 May 2011 section 7 Financial Advisers Amendment Act 2011 Commissioner for Financial Advisers Heading repealed 1 May 2011 section 8 Financial Advisers Amendment Act 2011
79: Commissioner for Financial Advisers
Section 79 repealed 1 May 2011 section 8 Financial Advisers Amendment Act 2011
80: Functions of Commissioner
Section 80 repealed 1 May 2011 section 8 Financial Advisers Amendment Act 2011 Code committee
81: Establishment of code committee
The code committee is established. Section 81 substituted 1 May 2011 section 9 Financial Advisers Amendment Act 2011
82: Functions of code committee
The functions of the code committee are—
a: first, to produce a draft code for approval by the FMA
b: subsequently, to review the code from time to time; and
c: to recommend to the FMA Section 82(a) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 82(c) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
83: Membership of code committee
1: The FMA
a: appoint a member of the code committee; or
b: discharge a member of the code committee.
2: The appointment of a member of the code committee must be for a specified period, but a member may be discharged under subsection (1)(b) before his or her period of appointment has expired.
3: The code committee must have not less than 7 members and not more than 11 members, and the FMA
4: The FMA
a: 1 person who, in the FMA's
b: other persons who, in the FMA's
5: A member of the code committee may resign by notice in writing to the FMA Section 83(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 83(3) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 83(4) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 83(4)(a) amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 83(4)(b) amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 83(5) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
84: Proceedings of code committee
1: Meetings of the code committee must be held at the times and places as the code committee or the chairperson from time to time decides.
2: The code committee must elect 1 of its members as chairperson.
3: The quorum for a meeting of the code committee is 5 members.
4: Every question before the code committee must be determined by a majority of the votes of the members present or otherwise.
5: The chairperson of the code committee has a deliberative vote and, in the case of an equality of votes, a casting vote.
6: Except as provided in this section and in any regulations made under this Act, the code committee may regulate its own procedure. 2006 No 60 s 56
85: Certain provisions of Crown Entities Act 2004 apply to members of code committee
Clause 15 Schedule 5 FMA clause 14 Section 85 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
85A: Funding of code committee
The FMA must fund the code committee. Section 85A inserted 1 May 2011 section 82 Financial Markets Authority Act 2011 Code of professional conduct for authorised financial advisers
86: Content of code
1: The code must provide for minimum standards of professional conduct that must be demonstrated by authorised financial advisers, including minimum standards—
a: of competence; and
b: of knowledge and skills; and
c: of ethical behaviour; and
d: of client care.
2: The code must also provide for continuing professional training for authorised financial advisers, including specification of minimum requirements that an authorised financial adviser must meet for the purpose of continuing professional training.
3: The code may specify different standards for different classes of authorised financial adviser.
4: The code may limit or modify standards, or provide for separate standards, for the duration of 1 or more periods of transition.
5: Despite subsection (1), the code may provide for different minimum standards for individuals training to be authorised financial advisers.
6: The code may specify that minimum standards apply to services provided by an authorised financial adviser even if the adviser is providing that service as, or on behalf of the business of, a DIMS licensee under the Financial Markets Conduct Act 2013 Section 86(4) added 1 July 2010 section 26 Financial Advisers Amendment Act 2010 Section 86(5) added 1 July 2010 section 26 Financial Advisers Amendment Act 2010 Section 86(6) inserted 1 December 2014 section 48 Financial Markets (Repeals and Amendments) Act 2013
87: Code committee must prepare code
1: The code committee must prepare a draft code.
2: In preparing the draft code, the code committee must—
a: consult any persons that it reasonably considers to be representative of the financial adviser industry; and
b: consult with interest groups within the financial adviser industry; and
c: allow an opportunity for any person affected by the code to make submissions to the code committee.
88: FMA's
1: After receiving the draft code prepared by the code committee, the FMA
a: approve it; or
b: decline to approve it.
2: The FMA FMA
a: a majority of the code committee has approved the draft code; and
b: the code committee has complied with its obligations under section 87(2)
c: the draft code is consistent with this Act.
3: A failure by the code committee to comply with its obligations under section
4: This section is subject to section 89 Section 88 heading amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 88(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 88(2) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 88(3) amended 28 July 2009 section 9 Financial Advisers Amendment Act 2009
89: FMA
1: If the FMA section 88(2)
a: the FMA
b: the code committee must as soon as practicable comply with the FMA's
2: If the FMA FMA it Section 89 heading amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 89(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 89(1)(b) amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 89(2) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 89(2) amended 1 May 2011 section 12(3) Financial Advisers Amendment Act 2011
90: FMA's
1: After receiving a revised draft code, the FMA
a: approve the revised draft code; or
b: if the FMA
i: make any amendments to the draft code that the FMA
ii: approve the draft code as amended.
2: Before making any amendment to the draft code under this section, the FMA
a: advise the code committee of the FMA's
b: give the code committee a reasonable opportunity to make submissions on the matter; and
c: consider those submissions. Section 90 heading amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 90(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 90(1)(b) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 90(1)(b)(i) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 90(2) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 90(2)(a) amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011
91: Deadline for
FMA's The FMA section 89 Section 91 heading amended 1 May 2011 section 12(2) Financial Advisers Amendment Act 2011 Section 91 amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
92: Minister’s approval required
1: After approving the draft code or after the 90-day deadline for approval specified in section 91 FMA
2: The Minister must approve the draft code unless the Minister considers that it is not consistent with this Act.
3: If the Minister is not satisfied that the draft code is consistent with this Act, the Minister must implement the procedure set out in sections 89 90
4: For the purposes of subsection (3), a reference in sections 89 90 FMA Section 92(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 92(4) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
93: Deadline for Minister's approval of draft code
The Minister must approve the draft code within 90 days of receiving the draft code or, if section 92(3)
94: Code comes into force by
Gazette
1: After the Minister has approved the draft code or after the 90-day deadline for approval specified in section 93 FMA Gazette
2: The notice may state different dates for different provisions, but no date may be before the 28th day after the date on which the notice is published in the Gazette
3: Each provision in the code comes into force on the date stated in the notice that applies to the provision.
4: The code and the notice are each disallowable instruments, but not legislative instruments, for the purposes of the Legislation Act 2012 section 41 Section 94 substituted 1 July 2010 section 27 Financial Advisers Amendment Act 2010 Section 94(1) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011 Section 94(4) replaced 5 August 2013 section 77(3) Legislation Act 2012 Changes to code
95: Changes to code
1: A change to the code may be proposed by—
a: the code committee; or
b: the FMA
c: the Minister.
2: The procedure for changing the code is the same as the procedure set out in sections 87 to 94 Section 95(1)(b) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
2: Complaints and disciplinary proceedings
Who deals with complaints
96: Complaint about financial adviser
1: Any person may complain to the FMA
2: The FMA Section 96(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 96(2) amended 1 May 2011 section 12(1) Financial Advisers Amendment Act 2011
97: Investigation by
FMA
1: After receiving a complaint, the FMA
a: the nature and number of complaints to be investigated; and
b: the FMA's
c: the FMA's
2: The FMA it
a: the complaint is vexatious; or
b: the complaint is not sufficiently serious to warrant investigation. Section 97 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 97(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 97(1)(b) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 97(1)(c) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 97(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 97(2) amended 28 July 2009 section 10 Financial Advisers Amendment Act 2009 Complaint about authorised financial adviser
98: Reference of complaint to disciplinary committee
When the FMA section 97 FMA's Section 98 substituted 1 July 2010 section 28 Financial Advisers Amendment Act 2010 Section 98 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 98 amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 98 amended 28 July 2009 section 10 Financial Advisers Amendment Act 2009
99: Disciplinary committee must give notice of complaint to financial adviser concerned
If the FMA Section 99 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
100: Content of disciplinary committee's notice of complaint
The disciplinary committee's A
a: state that the disciplinary committee considers that there is reason to believe that A may have breached the code; and
b: contain the particulars that are reasonably necessary to clearly inform A of the nature of the contravention; and
c: specify a date, which must not be sooner than 20 working days after the date of service of the notice, on which the disciplinary committee intends to hear the matter. Section 100 amended 28 July 2009 section 11 Financial Advisers Amendment Act 2009
101: Disciplinary committee may discipline authorised financial adviser for breach of code
1: In this section, A
2: The disciplinary committee may take any of the actions referred to in subclause (3) if it is satisfied that A has breached the code.
3: In any case to which subsection (2) applies, the disciplinary committee may—
a: recommend that the FMA
b: recommend that the FMA
i: cancels A’s authorisation; and
ii: debars A for a specified period from applying to be re-authorised:
c: recommend that the FMA
d: censure A:
e: order that A may, for a period not exceeding 3 years, perform a financial adviser service only subject to any conditions as to employment, supervision, or otherwise that the disciplinary committee may specify in the order:
f: order that A undertake training specified in the order:
g: order that A must pay a fine not exceeding $10,000:
h: take no action.
4: No fine may be imposed under subsection (3)(g) in relation to an act or omission that constitutes an offence for which A has been convicted by a court.
4A: A fine imposed under subsection (3)(g) is recoverable in any court as a debt due to the FMA.
5: In any case to which subsection (2) applies, the disciplinary committee may order that A must pay costs and expenses of, and incidental to, the investigation by the FMA
6: The disciplinary committee may publicly notify the action in any way that it thinks fit.
7: This section applies whether or not A is an authorised financial adviser at the time of the complaint, the investigation, or the disciplinary proceeding. Section 101(3)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 101(3)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 101(3)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 101(4A) inserted 30 May 2017 section 43 Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 101(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
102: Reasonable opportunity to be heard
The disciplinary committee must not take any of the actions specified in section 101(3)
a: informed the person concerned in writing as to why it may take any of those actions; and
b: given that person or his or her representative a reasonable opportunity to make written submissions and be heard on the question. Disciplinary committee
103: Minister must establish disciplinary committee
The Minister must establish a disciplinary committee.
104: Functions of disciplinary committee
The functions of the disciplinary committee are to—
a: conduct disciplinary proceedings arising out of complaints regarding authorised financial advisers referred to it by the FMA
b: take any of the actions referred to in section 101(3) Section 104(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
105: Membership of disciplinary committee
1: The Minister may at any time appoint a member of the disciplinary committee.
2: The appointment of a member of the disciplinary committee must be for a specified period.
3: The Minister must appoint one of the members of the disciplinary committee
4: The disciplinary committee must have between not less than 4 members and not more than 6 members including the chairperson, and the Minister must ensure that the number of current members does not fall below 4.
5: Apart from the chairperson, the Minister must appoint as members of the disciplinary committee—
a: at least 1 member who works or has worked in the financial adviser industry; and
b: at least 1 member who is independent of the financial adviser industry; and
c: at least 1 member who is a lawyer with not less than 7 years' legal experience.
6: A member of the disciplinary committee may resign by notice in writing to the Minister. Section 105(3) amended 1 May 2011 section 10 Financial Advisers Amendment Act 2011
106: Proceedings of disciplinary committee
1: Meetings of the disciplinary committee must be held at the times and places as the disciplinary committee or the chairperson from time to time decides.
2: The quorum for a meeting of the disciplinary committee is 3 members.
3: Every question before the disciplinary committee must be determined by a majority of the votes of the members present at the meeting.
4: The chairperson of the disciplinary committee has a deliberative vote and, in the case of an equality of votes, a casting vote.
5: Except as provided for in this Act and in any regulations made under this Act, the disciplinary committee may regulate its own procedure. 2006 No 60 s 56
107: Disciplinary committee may hear evidence in disciplinary proceeding
1: In a disciplinary proceeding the disciplinary committee may—
a: receive evidence on oath (and for that purpose a member of the disciplinary committee may administer an oath):
b: permit a person appearing as a witness before it to give evidence by tendering a written statement and verifying that statement by oath, statutory declaration, or otherwise.
2: A hearing before the disciplinary committee in a disciplinary proceeding is a judicial proceeding for the purposes of sections 108 109 2005 No 38 s 30
108: District Court may authorise disciplinary committee to summon witnesses on disciplinary matters
1: A District Court Judge may, on the application of the disciplinary committee or the person to whom the proceedings relate, give a certificate authorising the disciplinary committee to issue a summons under section 109
2: A District Court Judge must not give a certificate under subsection (1) unless satisfied that—
a: the evidence of the witness is or may be material to the hearing of a disciplinary matter by the disciplinary committee; and
b: it is necessary or desirable that the summons be issued to compel the attendance of the witness at the hearing. 2005 No 38 s 31
109: Issuing of summons by disciplinary committee
1: The disciplinary committee must, on production of a certificate referred to in section 108
a: give evidence:
b: give evidence under oath:
c: produce documents, things, or information, or any specified documents, things, or information, in the possession or control of that person, that are relevant to the hearing.
2: The summons must be in writing, be signed by the chairperson of the disciplinary committee, and state—
a: the date and time when, and the place where, the person must attend; and
b: the documents, things, or information that the person is required to bring and produce to the disciplinary committee; and
c: the entitlement to be tendered or paid a sum in respect of witnesses' fees, allowances, and expenses; and
d: the penalty for failing to attend.
3: The disciplinary committee may require that any documents, things, or information produced under this section be verified by oath, statutory declaration, or otherwise. 2005 No 38 s 32
110: Serving of summons
1: A summons may be served—
a: by delivering it personally to the person summoned; or
b: by posting it to the person summoned at that person's usual place of residence ; or
c: by emailing it to the person summoned at an email address that is used by the person summoned.
2: A summons must,—
a: if it is to be served under subsection (1)(a), be served at least 48 hours before the attendance of the witness is required:
b: if it is to be served under subsection (1)(b) or (c)
3: A summons that is posted is treated as having been served when it would have been delivered in the ordinary course of post.
4: In the absence of proof to the contrary, a summons that is emailed to a person must be treated as served on the person on the second working day after the date on which it is emailed, and, in proving that the summons was emailed, it is sufficient to prove that the summons was properly addressed and sent to the email address. 2005 No 38 s 33 Section 110(1)(b) amended 16 December 2017 section 66(1) Electronic Interactions Reform Act 2017 Section 110(1)(c) inserted 16 December 2017 section 66(2) Electronic Interactions Reform Act 2017 Section 110(2)(b) amended 16 December 2017 section 66(3) Electronic Interactions Reform Act 2017 Section 110(4) inserted 16 December 2017 section 66(4) Electronic Interactions Reform Act 2017
111: Witnesses' fees, allowances, and expenses
1: A witness appearing before the disciplinary committee under a summons is entitled to be paid witnesses' fees, allowances, and expenses in accordance with the scales prescribed by regulations under the Criminal Procedure Act 2011
2: The person requiring attendance of the witness must pay or tender to the witness the fees, allowances, and expenses at the time the summons is served or at some other reasonable time before the hearing. 2005 No 38 s 34 Section 111(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
112: Protection for witnesses and counsel in disciplinary proceeding
1: Every person who does the following things has the same privileges as witnesses have in a court:
a: provides documents, things, or information to the disciplinary committee in relation to a disciplinary matter; or
b: gives evidence or answers questions at a hearing of the disciplinary committee in relation to a disciplinary matter.
2: Every counsel appearing before the disciplinary committee in relation to a disciplinary matter has the same privileges and immunities as counsel in a court. 2005 No 38 s 36
113: Certain provisions of Crown Entities Act 2004 apply to members of disciplinary committee
Clause 15 Schedule 5 FMA clause 14 Section 113 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
113A: Funding of disciplinary committee
The FMA must fund the disciplinary committee. Section 113A inserted 1 May 2011 section 82 Financial Markets Authority Act 2011
3: Offences
Offences: Restrictions on providing services and holding out Heading substituted 1 July 2010 section 29 Financial Advisers Amendment Act 2010
114: Offence of providing financial adviser service without being permitted to do so
1: A person who provides a financial adviser service set out in section 18 section 17
a: in the case of an individual, to a fine not exceeding $10,000:
b: in the case of an entity, to a fine not exceeding $50,000.
2: A person who provides a financial adviser service set out in section 19 20 section 17
a: in the case of an individual, to a fine not exceeding $5,000:
b: in the case of an entity, to a fine not exceeding $10,000.
3: A person ( A Section 114 substituted 1 July 2010 section 29 Financial Advisers Amendment Act 2010 Section 114(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 114(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
115: Offence of holding out as authorised financial adviser, financial planner, investment planner, or QFE
A person who knowingly or recklessly contravenes section 20A 20B 20C
a: in the case of an individual, to a fine not exceeding $10,000:
b: in the case of an entity, to a fine not exceeding $50,000. Section 115 substituted 1 July 2010 section 29 Financial Advisers Amendment Act 2010 Section 115 amended 1 July 2013 section 413 Criminal Procedure Act 2011
116: Offences in relation to employer or principal failing to maintain registration
Section 116 repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Disclosure offences: Financial advisers , QFEs, and brokers Heading amended 1 July 2010 section 30 Financial Advisers Amendment Act 2010
117: Failure to make disclosure under or in accordance with disclosure obligation
A person who knowingly or recklessly contravenes a disclosure obligation commits an offence and is liable on
a: in the case of an individual, not exceeding $100,000:
b: in the case of an entity Section 117 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 117(b) amended 1 July 2010 section 31 Financial Advisers Amendment Act 2010 Conduct offences: Financial advisers and brokers Heading amended 1 July 2010 section 32 Financial Advisers Amendment Act 2010
118: Offence of misleading or deceptive conduct by financial adviser or broker
A person who knowingly or recklessly contravenes section 34(1) section 77L
a: in the case of an individual, not exceeding $100,000:
b: in the case of an entity, not exceeding $300,000. Section 118 substituted 1 July 2010 section 33 Financial Advisers Amendment Act 2010 Section 118 amended 1 July 2013 section 413 Criminal Procedure Act 2011
119: Offence of misleading, deceptive, or confusing advertisement by financial adviser or broker
A person who knowingly or recklessly contravenes section 35(1) section 77M
a: in the case of an individual, not exceeding $100,000:
b: in the case of an entity, not exceeding $300,000. Section 119 substituted 1 July 2010 section 33 Financial Advisers Amendment Act 2010 Section 119 amended 1 July 2013 section 413 Criminal Procedure Act 2011
120: Offence of contravening restrictions on use of term sharebroker
Section 120 repealed 1 April 2014 section 49 Financial Markets (Repeals and Amendments) Act 2013 Offences: Authorised financial advisers only
121: Offence of recommending
that contravenes financial markets legislation A person who contravenes section 38(1) Section 121 heading amended 1 December 2014 section 50 Financial Markets (Repeals and Amendments) Act 2013 Section 121 heading amended 1 July 2010 section 34 Financial Advisers Amendment Act 2010 Section 121 amended 1 July 2013 section 413 Criminal Procedure Act 2011
122: Offence of contravening requirement that authorised financial adviser pay client’s money into separate trust account
Section 122 repealed 1 July 2010 section 35 Financial Advisers Amendment Act 2010
123: Offence of failing to account for client’s money or other property
Section 123 repealed 1 July 2010 section 35 Financial Advisers Amendment Act 2010
124: Offence in relation to records of client’s money or property
Section 124 repealed 1 July 2010 section 35 Financial Advisers Amendment Act 2010
125: Offence of breaching restrictions on use of client’s money or property
Section 125 repealed 1 July 2010 section 35 Financial Advisers Amendment Act 2010
126: Offence of failing to comply with terms and conditions of authorisation
A person who contravenes section 45(1) Section 126 amended 1 July 2013 section 413 Criminal Procedure Act 2011
127: Offence of failing to comply with
FMA's A person who fails to comply with a direction of the FMA section 61(3) Section 127 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 127 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 127 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
128: Offence of contravening condition of disciplinary committee’s order
A person who contravenes a condition of an order made by the disciplinary committee under section 101(3)(e) Section 128 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Offences: QFEs and QFE groups only Heading substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010
129: Offence of failing to comply with terms and conditions of QFE status
1: If a QFE contravenes section 46(1)
a: the QFE:
b: every partner entity of the QFE.
2: If a partner entity of a QFE contravenes section 46(1) Section 129 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 129(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 129(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
130: Offence of misleading or deceptive conduct in relation to financial adviser service by employee, agent, or nominated representative
1: If a QFE knowingly or recklessly contravenes section 47(1)
a: the QFE:
b: every partner entity of the QFE.
2: If an associated entity of a QFE knowingly or recklessly contravenes section 47(1)
a: the associated entity of the QFE:
b: the QFE:
c: every partner entity of the QFE. Section 130 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 130(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 130(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
131: Offence of misleading, etc, advertisement of financial adviser service by employee, agent, or nominated representative
1: If a QFE knowingly or recklessly contravenes section 48(1)
a: the QFE:
b: every partner entity of the QFE.
2: If an associated entity of a QFE knowingly or recklessly contravenes section 48(1)
a: the associated entity of the QFE:
b: the QFE:
c: every partner entity of the QFE. Section 131 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 131(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 131(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
132: Offence of failing to comply with
FMA's If a QFE fails to comply with a direction of the FMA section 75F(3)
a: the QFE:
b: every partner entity of the QFE. Section 132 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 132 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 132 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 132 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
133: Offence of failing to comply with obligations in relation to authorised financial advisers
If a QFE or a partner entity contravenes section 76(1)(e)
a: the QFE:
b: every partner entity of the QFE. Section 133 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 133 amended 1 July 2013 section 413 Criminal Procedure Act 2011
134: Offence of failing to provide annual report
If a QFE contravenes section 77(1)
a: the QFE:
b: every partner entity of the QFE. Section 134 substituted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Section 134 amended 1 July 2013 section 413 Criminal Procedure Act 2011
134A: Defence to offences relating to entities in QFE groups
An entity, being the QFE of a QFE group or a partner entity, has a defence to an offence under any of sections 129 to 134
a: was not involved in the contravention that constitutes the offence; and
b: took all reasonable steps to ensure that the members of the QFE group complied with the requirements of this Act. Section 134A inserted 1 July 2010 section 36 Financial Advisers Amendment Act 2010 Offences: Broking services only Heading inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010
134B: Offence of receiving client money if offer
contravenes financial markets legislation A person who contravenes section 77O
a: in the case of an individual, not exceeding $100,000:
b: in the case of an entity, not exceeding $300,000. Section 134B inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134B heading amended 1 December 2014 section 51 Financial Markets (Repeals and Amendments) Act 2013 Section 134B amended 1 July 2013 section 413 Criminal Procedure Act 2011
134C: Offence of contravening requirement to pay client money into separate trust account
and hold client property on trust A person who contravenes section 77P
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134C inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134C heading amended 1 April 2014 section 52 Financial Markets (Repeals and Amendments) Act 2013 Section 134C amended 1 July 2013 section 413 Criminal Procedure Act 2011
134D: Offence of failing to account for client money and client property
A person who contravenes section 77Q
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134D inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134D amended 1 July 2013 section 413 Criminal Procedure Act 2011
134E: Offence in relation to records of client money and client property
A person who contravenes any of section 77R(1)
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134E inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134E amended 1 July 2013 section 413 Criminal Procedure Act 2011
134EA: Offence of failing to report on client money and client property
A person who contravenes section 77RA
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134EA inserted 1 April 2014 section 53 Financial Markets (Repeals and Amendments) Act 2013
134F: Offence of breaching restrictions on use of client money and client property
A person who contravenes section 77S
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134F inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134F amended 1 July 2013 section 413 Criminal Procedure Act 2011
134G: Offence of failing to comply with
FMA's A person who fails to comply with a direction of the FMA section 77V
a: in the case of an individual, not exceeding $5,000:
b: in the case of an entity, not exceeding $25,000. Section 134G inserted 1 July 2010 section 37 Financial Advisers Amendment Act 2010 Section 134G heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 134G amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 134G amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Miscellaneous offences Heading inserted 1 July 2010 section 38(1) Financial Advisers Amendment Act 2010
135: Offence of failing to comply with
FMA's A person who fails to comply with a direction of the FMA section 49(3) Section 135 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 135 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 135 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Miscellaneous offences Heading repealed 1 July 2010 section 38(2) Financial Advisers Amendment Act 2010
136: Offence of false declaration, etc, in support of application for authorisation or grant of QFE status
1: A person ( A
a: either orally or in writing, made any declaration or representation knowing it to be false or misleading in a material particular; or
b: produced to the FMA
c: produced to the FMA
2: A person who commits an offence under this section is liable on
a: in the case of an individual, not exceeding $100,000:
b: in the case of an entity, not exceeding $300,000. Section 136(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 136(1)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 136(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
137: Failure to comply with summons
1: A person summoned under section 109
a: fails to attend in accordance with the summons; or
b: does not give evidence when required to do so; or
c: does not give evidence under oath when required to do so; or
d: does not answer any question that is lawfully asked by the disciplinary committee; or
e: does not provide any documents, things, or information that the summons requires the person to provide.
2: A person who commits an offence under this section is liable on
3: A person must not be convicted of an offence under this section if witnesses' fees, allowances, and expenses to which the person is entitled under section 111 2005 No 38 s 35 Section 137 heading amended 1 May 2011 section 11 Financial Advisers Amendment Act 2011 Section 137(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
4: Injunctions
Subpart 4 inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Subpart 4 heading amended 1 December 2014 section 54 Financial Markets (Repeals and Amendments) Act 2013 Injunctions Heading inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010
137A: Injunctions against contraventions
1: The High Court may, on application by the FMA
a: the court is satisfied that the person has engaged in conduct of that kind; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
2: In subsection (1), contravention
3: The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.
4: Subsections (1)(a) and (3) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
5: Subsections (1)(b) and (3) apply whether or not the person has previously engaged in conduct of that kind or there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind.
6: In this section, engaging in conduct
a: omitting to do an act; or
b: making it known that an act will or will not be done. 1988 No 234 ss 2 42K 42L Section 137A inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
137B: Undertaking as to damages not required by
FMA
1: If the FMA section 137A FMA
2: However, in determining the FMA's FMA 1988 No 234 s 42M Section 137B inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137B heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137B(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137B(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137B(2) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
137C: When court may make banning order
Section 137C repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137D: Terms of banning orders
Section 137D repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137E: Offence of contravening banning order
Section 137E repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013 Orders to preserve assets to satisfy claims Heading repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137F: When High Court may prohibit payment or transfer of money, securities, or other property
Section 137F repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137G: What orders may be made
Section 137G repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137H: Interim orders
Section 137H repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137I: Relationship with other law
Section 137I repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013
137J: Offence of breaching orders
Section 137J repealed 1 December 2014 section 55 Financial Markets (Repeals and Amendments) Act 2013 Pecuniary and compensatory orders for contravening wholesale certification requirement or conduct obligations related to discretionary investment management service Heading inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Heading amended 1 December 2014 section 56(4) Financial Markets (Repeals and Amendments) Act 2013
137K: Pecuniary order for contravening wholesale certification requirement
or conduct obligations related to discretionary investment management service
1: The High Court may, on application by the FMA section 5E or a conduct obligation under any of sections 39 to 44
2: The amount of the pecuniary penalty must not, in respect of each act or omission, exceed $100,000 in the case of an individual or $300,000 in the case of an entity.
3: In setting the amount of the pecuniary penalty, the court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the nature and extent of any loss or damage suffered by a person as a result of the contravention, including the effect on a person of the loss of an opportunity to make a complaint to an approved dispute resolution scheme:
c: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
d: whether the person has previously been found by the court in proceedings under this Act to have engaged in similar conduct.
4: A financial adviser or broker may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
5: Section 137K inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137K heading amended 1 December 2014 section 56(1) Financial Markets (Repeals and Amendments) Act 2013 Section 137K(1) amended 1 December 2014 section 56(2) Financial Markets (Repeals and Amendments) Act 2013 Section 137K(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137K(5) repealed 1 December 2014 section 56(3) Financial Markets (Repeals and Amendments) Act 2013
137L: Compensation for contravention of wholesale certification requirement
1: If the court orders a person to pay a pecuniary penalty under section 137K or a conduct obligation related to a discretionary investment management service aggrieved person
2: An application for orders under this section may be made by the FMA
3: The application must be made within 1 year of the date of the pecuniary penalty order.
4: The court may make an order under this section whether or not any aggrieved person is a party to the proceedings.
5: In proceedings under this section, the court may make such orders as it thinks fit. Section 137L inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137L(1) amended 1 December 2014 section 56(5) Financial Markets (Repeals and Amendments) Act 2013 Section 137L(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Temporary banning orders against financial adviser and broker Heading inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010
137M: When
FMA The FMA temporary banning order sections 137N to 137R FMA
a: the person has persistently contravened this Act or the Financial Markets Conduct Act 2013
b: the person has been prohibited in an overseas jurisdiction from carrying on activities that the FMA section 137N 1988 No 234 s 42D Section 137M inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137M heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137M amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137M(a) amended 1 December 2014 section 57 Financial Markets (Repeals and Amendments) Act 2013 Section 137M(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
137N: Terms of temporary banning order
A temporary banning order may prohibit or restrict a person from doing all or any of the following things, without the leave of the FMA
a: providing financial adviser services or broking services:
b: being a director or promoter of, or in any way, whether directly or indirectly, being concerned or taking part in the management of, any incorporated or unincorporated body that provides financial adviser services or broking services (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand):
c: contributing, as employee or agent, to the provision of financial adviser services or broking services. 1988 No 234 s 42E Section 137N inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137N amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Process for FMA's Heading inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
137O: FMA
1: Unless section 137P FMA
a: gives the person to whom the order is directed written notice of—
i: the nature of the alleged contravention; and
ii: the proposed terms of the order; and
iii: the reasons for the proposed order; and
b: gives that notice at least 24 hours before the FMA
c: gives the person or the person's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
d:
2: However, the FMA section 137P 1988 No 234 s 42F Section 137O inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137O heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137O(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137O(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137O(1)(c) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 137O(1)(d) repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 137O(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
137P: FMA
1: If the FMA section 137O
a: may give less than 24 hours' notice before it makes the order, and the notice may be oral, not written; and
b: may give persons an opportunity to make only oral submissions, not written, to a member, officer, or employee of the FMA FMA
2: However, the FMA section 137O 1988 No 234 s 42G Section 137P inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137P heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137P(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137P(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137P(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
137Q: FMA
1: If the FMA FMA
a: must, as soon as is reasonably practicable, give written notice to the person to whom the order is directed of—
i: the terms of the order; and
ii: the reasons for the order; and
b: may also give notice to any other person of those matters.
2: The FMA FMA 1988 No 234 s 42H Section 137Q inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137Q heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137Q(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137Q(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
137R: General provisions on temporary banning orders
1: The FMA FMA
2: The FMA section 137O to 137Q
3: The FMA
4: A person that considers that a decision of the FMA in respect of a temporary banning order is wrong in law may appeal against the decision to the High Court on a question of law only. 1988 No 234 s 42I Section 137R inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137R(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137R(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137R(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 137R(4) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011
137S: Offence of failing to comply with
FMA's
1: A person who contravenes a temporary banning order commits an offence and is liable on
2: No person may be convicted of an offence against subsection (1) if—
a: the person proves that the contravention occurred without the person's knowledge or without the person's knowledge of the order; or
b: the contravention was in respect of matters that, in the court's opinion, were immaterial; or
c: the court thinks that the contravention, in the circumstances of the case, ought reasonably to be excused. 1988 No 234 s 42J Section 137S inserted 1 July 2010 section 39 Financial Advisers Amendment Act 2010 Section 137S heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 137S(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
5: General provisions
Appeal of decisions
138: Right of appeal
1: A person affected may appeal to the District Court
a: the FMA
i: decline authorisation under section 55(4)
ii: decline QFE status under section 67(4)
iii: take any action referred to in section 59(2) 75D(2)
iv: give a direction under section 49 61 75F 77V
b: the disciplinary committee to take any action referred to in section 101(3) or (5)
2: An appeal—
a: must be brought to the District Court by way of notice of appeal in accordance with the rules of court; and
b: must be lodged within 20 working days after notice of the decision is communicated to the appellant, or within any further time a District Court Judge allows on application made before or after the period expires. 2005 No 38 s 38 Section 138(1) amended 1 March 2017 section 261 District Court Act 2016 Section 138(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 138(1)(a)(ii) amended 28 July 2009 section 13 Financial Advisers Amendment Act 2009 Section 138(1)(a)(iv) amended 1 July 2010 section 40 Financial Advisers Amendment Act 2010
139: Notice of right of appeal
When notifying a person under this Act of any decision against which section 138 FMA 2005 No 38 s 39 Section 139 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
140: Decision to have effect pending determination of appeal
A decision against which an appeal is lodged under this Part continues in force unless the District Court orders otherwise. 2005 No 38 s 40
141: Procedure on appeal
1: An appeal under this Part must be heard as soon as is reasonably practicable after it is lodged.
2: An appeal under this Part is by way of rehearing.
3: On hearing the appeal, the District Court—
a: may confirm, reverse, or modify the decision appealed against; and
b: may make any other decision that the person or body that made the decision appealed against could have made.
4: The court must not review—
a: any part of a decision not appealed against; or
b: any decision not appealed against at all. 2005 No 38 s 41
142: Court's decision final
Except as provided in section 146 2005 No 38 s 42
143: Court may refer matter back for reconsideration
1: Instead of determining an appeal under this Part, the District Court may direct the person or body whose decision is under appeal to reconsider, either generally or in respect of any specified aspect, the whole or any part of the decision.
2: In giving a direction under subsection (1), the court—
a: must state its reasons for the direction; and
b: may give any other directions it thinks just in relation to the matter referred back for reconsideration.
3: Upon being directed to reconsider a matter, the person or body whose decision is under appeal—
a: must reconsider the matter; and
b: in doing so, must—
i: take the court's reasons into account; and
ii: give effect to the court's directions. 2005 No 38 s 43
144: Orders as to costs
On an appeal under this Part, the District Court may order any party to the appeal to pay to any other party to the appeal any or all of the costs incurred by the other party in respect of the appeal. 2005 No 38 s 44
145: Orders as to publication of names
1: On any appeal under this Part, the District Court may, if in its opinion it is proper to do so, prohibit the publication of the name or particulars of the affairs of a financial adviser or any other person.
2: In deciding whether to make an order under subsection (1), the court must have regard to—
a: the interests of any person (including, without limitation, the privacy of any complainant); and
b: the public interest. 2005 No 38 s 45(1), (2)
146: Appeal on question of law
1: A party to an appeal under this Part may appeal to the High Court against any determination of law arising in the appeal.
2: The appeal must be heard and determined in accordance with the appropriate rules of court.
3: Part 6
a: so far as it is applicable and with all necessary modifications; but
b: only so far as it relates to appeals on questions of law.
4: Subsection (3) overrides subsection (2). 2005 No 38 s 46 Section 146(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Securities Commission: General powers Heading repealed 1 May 2011 section 82 Financial Markets Authority Act 2011
147: Commission may exercise powers under Securities Act 1978
Section 147 repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Standard conditions for incorporation in authorisation and grants Heading inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010
147A: Approval of standard conditions for incorporation in authorisations and grants of QFE status
1: The FMA Gazette
a: approve standard conditions for incorporation in authorisations of financial advisers under section 55
b: approve standard conditions for incorporation in grants of QFE status under section 67
2: The notice may state a date in relation to any specified standard condition on which the standard condition is incorporated into the authorisations of financial advisers or into the grants of QFE status.
3: However, if a standard condition proposed to be approved does not relate to a reporting or accounting requirement, a date may be stated under subsection (2) in relation to that standard condition only if that standard condition—
a: will, in the opinion of the FMA
b: is made in response to an emergency; or
c: is necessary to comply with statutory or international obligations; or
d: is necessary to avoid an unfair commercial advantage being taken; or
e: is necessary to avoid the defeat of the purpose of this Act ; or
f: is necessary or desirable in order to ensure timely and consistent implementation of changes to standard conditions for discretionary investment management services in connection with the commencement or implementation of the Financial Markets (Repeals and Amendments) Act 2013
4: The notice in the Gazette
a: published on an Internet site maintained by or on behalf of the FMA
b: made available in printed form for purchase on request by members of the public. Section 147A inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010 Section 147A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147A(3)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147A(3)(e) amended 1 April 2014 section 58 Financial Markets (Repeals and Amendments) Act 2013 Section 147A(3)(f) inserted 1 April 2014 section 58 Financial Markets (Repeals and Amendments) Act 2013 Section 147A(4)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
147B: Requirement to consult on proposal to incorporate material by reference
1: Before the FMA section 147A FMA
a: make copies of the proposed standard conditions available for inspection during working hours for a reasonable period, free of charge; and
b: state where copies of the proposed standard conditions are available for purchase; and
c: make copies of the proposed standard conditions available on an Internet site maintained by or on behalf of the FMA
d: give notice in the Gazette
i: stating how the proposed standard conditions can be inspected, purchased, or accessed on the Internet site address; and
ii: specifying a period within which any person may make a written submission to the FMA
2: If the FMA FMA
3: The FMA Section 147B inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010 Section 147B(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147B(1)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147B(1)(d)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147B(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 147B(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
147C: Variation or revocation of standard conditions
1: The FMA section 147A
2: Section 147A 147B Section 147C inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010 Section 147C(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
147D: When standard conditions come into force
The approval of standard conditions, or of variation or revocation of standard conditions, comes into force on the 28th day after the date on which the approval is notified in the Gazette Section 147D inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010
147E: Incorporation of changed standard conditions into existing authorisations or grants
A standard condition, or a variation or revocation of a standard condition, that has come into force is incorporated into the authorisation of an authorised financial adviser or into the grant of QFE status of a QFE—
a: if the notice approving the condition, variation, or revocation states a date under section 147A(2)
b: in any other case, when, and to the extent that, the condition is incorporated on the renewal of the authorisation or grant under section 58 75C Section 147E inserted 1 July 2010 section 41 Financial Advisers Amendment Act 2010 Exemptions
148: FMA
1: The FMA
a: compliance with any obligation under this Act, the regulations, or the code:
b: the obligation to register under the FSP Act by virtue of providing financial adviser services or broking services.
1A: To avoid doubt, an exemption may extend to exempt from compliance with any obligation under any provision that is implied into an agreement by the regulations.
2: The FMA
a: the costs of compliance with the relevant obligation—
i: would be unreasonable; or
ii: would not be justified by the benefit of compliance; or
b: the relevant person, service, or transaction is subject to the regulations of an overseas jurisdiction and the FMA
3: If a proposed exemption would exempt a person applying to be an authorised financial adviser from obligations imposed by the code in respect of competence, the FMA
a: the applicant has qualifications that are comparable to standards required by the code; or
b: the costs of compliance with the obligation would be—
i: unreasonable; or
ii: not justified by the benefit of compliance. Section 148 substituted 1 July 2010 section 42 Financial Advisers Amendment Act 2010 Section 148 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148(1A) inserted 1 December 2014 section 59 Financial Markets (Repeals and Amendments) Act 2013 Section 148(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148(2)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
148A: FMA
1: The FMA section 148
2: The FMA Section 148A inserted 1 July 2010 section 42 Financial Advisers Amendment Act 2010 Section 148A heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148A(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 148A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
148B: Status of exemptions, variations, or revocations
1: For the purposes of the Legislation Act 2012 section 148 section 148A
a: is a disallowable instrument and must be presented to the House of Representatives under section 41
b: is a legislative instrument only if it is a class exemption.
2: An exemption that is not a class exemption must, as soon as practicable after being granted, be—
a: published on an Internet site maintained by or on behalf of the FMA
b: notified in the Gazette
c: made available in printed form for purchase on request by members of the public.
3: In this section and in section 149 class exemption
a: is not an exemption from the code; and
b: applies to a class of persons or transactions; but
c: does not include an exemption granted in relation to a particular person, service, or transaction. Section 148B inserted 1 July 2010 section 42 Financial Advisers Amendment Act 2010 Section 148B(1) replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 148B(2)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
149: FMA other than class exemption
1: When the FMA FMA Gazette
2: However, the FMA FMA 1988 No 234 s 48A Section 149 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 149 heading amended 1 July 2010 section 43(1) Financial Advisers Amendment Act 2010 Section 149(1) substituted 1 July 2010 section 43(2) Financial Advisers Amendment Act 2010 Section 149(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 149(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
150: Implied provisions
A provision that is implied into an agreement by the regulations—
a: applies despite anything to the contrary in the agreement; and
b: is enforceable by the parties or by any person on whom the provision confers, or purports to confer, a benefit; but
c: applies subject to any exemption granted by the FMA under section 148 Section 150 replaced 1 December 2014 section 60 Financial Markets (Repeals and Amendments) Act 2013 Information sharing
151: Information sharing
1: The FMA FMA
a: holds in relation to the exercise of the FMA's
b: considers may assist the agency in the exercise of its powers or the performance of its functions and duties.
2: The FMA FMA's
3: This section applies no matter what any enactment, contract, deed, or document may say.
4: The agencies to which this section applies are the following:
a: the Registrar:
b: the Commerce Commission:
c: the New Zealand Police:
d: an approved dispute resolution scheme:
e: a licensing authority listed in Schedule 2
f: an overseas regulator.
5: The FMA
a: maintaining the confidentiality of the information (in particular, information that is personal information within the meaning of the Privacy Act 2020
b: the storing of, use of, or access to the information:
c: the copying, returning, or disposing of the information:
d: payment of the costs incurred by the FMA Section 151(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 151(1)(a) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 151(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 151(2) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 151(5) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 151(5)(a) amended 1 December 2020 section 217 Privacy Act 2020 Section 151(5)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Fees Heading amended 1 May 2011 section 82 Financial Markets Authority Act 2011
152: FMA's
1: Regulations may be made under section 155 FMA
2: If regulations have been made under section 155(2) FMA FMA FMA Section 152 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 152(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 152(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
153: Levy
Section 153 repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Regulations
154: General regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsections (4) to (8), make regulations—
a: exempting any person, service, document, information, or product or class of persons, services, documents, information, or products from all or any of the provisions of this Act or the regulations, and prescribing the terms and conditions (if any) of the exemption:
b: specifying the person that is the product provider in relation to a financial product other than an FMCA financial product
c: specifying a product as a category 1 product:
d: specifying a product as a category 2 product:
e: defining investment-linked contract of insurance, land investment product, and cash or term portfolio investment entity:
f: providing for disclosure by financial advisers under sections 22 to 24 section 25
g: prescribing the form of disclosure that (in addition to the matters set out in subsection (2)) may include a maximum length of a form and that some or all of the information that must be disclosed must be included in 1 disclosure statement:
ga: prescribing the information that must be made available under section 29A
gb: prescribing the matters that must be contained in a client agreement required for the purposes of section 41
gc: prescribing circumstances for the purposes of section 44
gd: prescribing eligibility criteria for authorisation for a service (including any preconditions or requirements that apply, or could be imposed by regulations, in relation to an application for a licence under subpart 2
h: specifying, for the purposes of section 55(1)(d) and, for the purposes of section 55(1A)
i: providing for disclosure by brokers under sections 77E 77F
j: prescribing when, and subject to what terms and conditions, disclosure may be made in a joint disclosure document (whether by financial advisers or by brokers jointly, or by 1 or more persons in different capacities) and the form of a joint disclosure document:
k: prescribing requirements relating to class services provided to retail clients for the purposes of section 36
l: prescribing the following matters in relation to Part 3A
i: that any or all of sections 77P to 77T
ia: the duties and obligations of brokers in relation to client money and client property, provisions specifying who may be a related person or entity for the purposes of section 77P
ii: provisions regulating the keeping, retention, reconciliation, inspection, and audit or review of trust account records and other records and procedures of brokers:
iii: any other requirements necessary or desirable to ensure that trust accounts are duly kept and that persons on whose behalf client money and client property are held by brokers are informed of the client money and client property held and of the transactions made in connection with it (including prescribing what confirmation information must be made available and to whom, when, where, and how it must be provided, and any other matters for the purposes of section 77RA
iv: provisions regulating the delivery of client money or client property to the person on whose behalf they are held, and other steps to be taken or provisions to apply, in connection with the termination of any broking service:
la: providing that specified provisions of the Trusts Act 2019
m: prescribing the form of an application for authorisation:
n: prescribing the form of an application for the grant of QFE status:
o: prescribing information that must be contained in a QFE's annual report:
p: prescribing the procedure of the code committee:
q: prescribing the procedure of the disciplinary committee:
r:
s:
t: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: In subsection (1), prescribing the form
3: Regulations for the purposes of subsection (1) may make different provision for different classes of financial adviser or broker, financial adviser service or broking service, and client, and for different circumstances in which a financial adviser service or broking service is provided.
4: The Minister must consult with the FMA
5: The Minister must not recommend the making of regulations under subsection (1)(a) or (gc)
a: the regulations are
b: the costs of compliance with the provision or provisions to which the regulations relate
c: the extent of the exemption, or the extent to which requirements are disapplied, under the regulations is not broader than what is reasonably necessary to address the matters that gave rise to the regulations.
5A: The Minister must not recommend the making of regulations under subsection (1)(la) unless the Minister has had regard to the purpose of the Trusts Act 2019
a: the regulations are consistent with the purposes of this Act; and
b: the extent to which the Trusts Act 2019
6: The Minister must not recommend the making of regulations under paragraph (r) or (s) of subsection (1) unless the Minister is satisfied that the regulations—
a: are necessary or desirable for the orderly implementation of this Act or the Financial Service Providers (Registration and Dispute Resolution) Act 2008
b: are consistent with the purposes of this Act or of the Financial Service Providers (Registration and Dispute Resolution) Act 2008
7: Paragraphs (r) and (s) of subsection (1) expire, and are repealed, on the close of 30 June 2013. 2013-07-01 Section 154(1)(r)
8: Any regulations made under paragraph (r) or (s) of subsection (1) that are in force on 30 June 2013 expire, and are revoked, on the close of that day. Section 154 substituted 1 July 2010 section 46 Financial Advisers Amendment Act 2010 Section 154(1)(b) amended 1 December 2014 section 61(1) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(ga) inserted 1 April 2014 section 61(2) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(gb) inserted 1 April 2014 section 61(2) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(gc) inserted 1 April 2014 section 61(2) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(gd) inserted 1 April 2014 section 61(2) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(h) amended 1 April 2014 section 61(3) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(l)(i) replaced 1 April 2014 section 61(4) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(l)(ia) inserted 1 April 2014 section 61(4) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(l)(ii) replaced 1 April 2014 section 61(4) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(l)(iii) amended 1 April 2014 section 61(5) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(l)(iv) inserted 1 April 2014 section 61(6) Financial Markets (Repeals and Amendments) Act 2013 Section 154(1)(la) inserted 30 January 2021 section 178(1) Trusts Act 2019 Section 154(1)(r) repealed 1 July 2013 Section 154(1)(s) repealed 1 July 2013 Section 154(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 154(5) amended 1 April 2014 section 61(7) Financial Markets (Repeals and Amendments) Act 2013 Section 154(5)(a) amended 1 April 2014 section 61(8) Financial Markets (Repeals and Amendments) Act 2013 Section 154(5)(b) amended 1 April 2014 section 61(9) Financial Markets (Repeals and Amendments) Act 2013 Section 154(5)(c) replaced 1 April 2014 section 61(10) Financial Markets (Repeals and Amendments) Act 2013 Section 154(5A) inserted 30 January 2021 section 178(2) Trusts Act 2019
155: Regulations relating to fees, charges, and costs
1: The Governor-General may from time to time, by Order in Council, make regulations—
a: requiring the payment to the FMA
i: in connection with the performance by the FMA
ii: on an application to the FMA
b: prescribing the amounts of the fees and charges payable to the FMA
c: prescribing the amount of any other fee required to be paid under this Act.
2: The Governor-General may from time to time, by Order in Council, make regulations authorising the FMA FMA FMA Section 155(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 155(1)(a)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 155(1)(a)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 155(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 155(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Other matters
156: No contracting out
The provisions of this Act have effect no matter what any agreement may say. 1988 No 234 s 41V
157: Territorial scope
1: This Act applies to a financial adviser service or broking service received by a client in New Zealand, regardless of where the person providing the service is resident, is incorporated, or carries on business.
2: Sections 33 34 49 77K 77L 77V 118 Section 157 substituted 1 July 2010 section 47 Financial Advisers Amendment Act 2010
158: Breach of exemption conditions
The breach of a term or condition of an exemption provided by regulations made under this Act or by notice under section 148 1988 No 234 s 49E
159: Exemption or regulation in respect of specified overseas jurisdictions
Section 159 repealed 1 July 2010 section 48 Financial Advisers Amendment Act 2010
160: Time for filing charging document
1: Despite anything to the contrary in section 25
a: a charging document may be filed at any time in respect of an offence against section 137E 137J
b: the limitation period in respect of an offence against section 114 115 116 120 126 127 128 134C 134D 134E 134F 134G 135 137
2: Nothing in subsection (1) affects the application of section 25 Section 160 replaced 1 July 2013 section 413 Criminal Procedure Act 2011
161: Ministry must review and report on operation of Act
1: The Ministry must, not later than 5 years after the commencement of this section,—
a: review the operation of this Act since the commencement of this section; and
b: prepare a report on the review for the Minister.
2: The report on the review must include recommendations to the Minister on whether any amendments to the Act are necessary or desirable.
3: As soon as practicable after receiving the report, the Minister must present a copy of that report to the House of Representatives. Other legislation affected
161A: Financial Service Providers (Registration and Dispute Resolution) Act 2008 amended
Section 161A repealed 1 May 2011 section 82 Financial Markets Authority Act 2011
162: KiwiSaver Act 2006 amended
1: This section amends the KiwiSaver Act 2006
2: The heading to section 206 investment advice financial adviser service
3: Section 206 give investment advice and is not an investment broker or a broker, for the purposes of the Investment Advisers (Disclosure) Act 1996 perform a financial adviser service for the purposes of the Financial Advisers Act 2008 OIC SR 2010/232 2010-08-16 KiwiSaver Act 2006
163: Securities Act 1978 amended
1: This section amends the Securities Act 1978
2: Section 10(1)(b) financial advisers, securities,
3: Section 10(1)(c) and financial advisers securities
4: Section 10(1)(d) and the law and practice relating to financial advisers securities
5: Section 11(1) 10 11
6: Section 11
3C: One of the members must be appointed by the Governor-General as Commissioner for Financial Advisers under section 79(3) of the Financial Advisers Act 2008
7: Schedule 1 Securities Markets Act 1988 Part 4 Financial Advisers Act 2008 OIC 2008/412 2008-12-05 Securities Act 1978 OIC SR 2010/232 2010-08-16 Securities Act 1978
164: Securities Markets Act 1988 amended
1: This section amends the Securities Markets Act 1988
2: Section 2(1) advertisement advice advertisement broker advertisement investment advice advice investment adviser adviser investment advisers' disclosure obligations investment advisers’ obligations investment broker broker investment brokers’ disclosure obligations investment brokers’ obligations investment brokers' service investment money money investment property property
3: Paragraph (e) of the definition of security section 2(1)
4: Part 4
5: Sections 42B(d) 42D 42E 42G(3)(b) 42N(b) 42P(c) 42S(f) 42T(2)(b) 42ZC 42ZD 43D 43E(1)(a) 43K to 43N
6:
7: Sections 48(1)(c) 49C OIC SR 2010/232 2011-07-01 Securities Markets Act 1988 The Securities Markets Act (New Zealand Post Limited Bonus Bonds) Exemption Notice 2009 is to expire on the day after Part 4 of the Securities Markets Act is repealed. Amends-note in that notice needs to be completed once commencement of subsection (4) is known. Section 164(6) repealed 28 July 2009 section 16 Financial Advisers Amendment Act 2009
165: Sharebrokers Act 1908 repealed
The Sharebrokers Act 1908 OIC SR 2010/232 2011-07-01 Sharebrokers Act 1908
166: Securities Markets (Investment Advisers and Brokers) Regulations 2007 revoked
The Securities Markets (Investment Advisers and Brokers) Regulations 2007 OIC SR 2010/232 2011-07-01 Securities Markets (Investment Advisers and Brokers) Regulations 2007 Transitional provisions
167: Transitional provisions for existing offences and contravention under Securities Markets Act 1988
1: This section applies to an offence committed under, or a contravention of, the Securities Markets Act 1988 section 164
2: The Securities Markets Act 1988
a: investigating an offence or contravention to which this section applies:
b: commencing or completing proceedings for an offence or contravention to which this section applies:
c: imposing a penalty or other remedy, or making an order, in relation to an offence or contravention to which this section applies.
168: Grant of authorisations in transitional period without prior inquiry into convictions
1: In this section, transitional period section 55 section 17
2: In the transitional period, the Commission may authorise a person under section 55 section 54(b)
3: An authorisation granted in reliance on subsection (2) is subject to the condition that it ceases to have effect if, before the expiry of the transitional period, the Commission notifies the applicant for authorisation that he or she is, given section 54(b)
4: If, at any time after the expiry of the transitional period, the Commission is satisfied that an authorised financial adviser is, given section 54(b) section 59(1)(a) Section 168 added 1 July 2010 section 49 Financial Advisers Amendment Act 2010