1: Title
This Act is the Financial Markets (Repeals and Amendments) Act 2013.
2: Commencement
1: Sections 4(2) to (4) 91 101(3), (6), and (7) 105 107
2: The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more orders may be made appointing different dates for different provisions and for different purposes.
3: To the extent that it is not previously brought into force under subsection (1) or (2), the rest of this Act comes into force on 1 April 2017.
4: In this section, provision Schedule Section 2(2) brought into force 1 April 2014 clause 3 Financial Markets Legislation (Phase 1) Commencement Order 2014 Section 2(2) brought into force 1 December 2014 clause 3 Financial Markets Legislation (Phase 2) Commencement Order 2014
3: Overview
1: This Act Financial Markets Conduct Act 2013
2: The transitional provisions governing the transition to the Financial Markets Conduct Act 2013 Schedule 4 Repeals and revocations
4: Repeals
1: The following Acts are repealed:
a: Securities Act 1978
b: Securities Markets Act 1988
c: Securities Transfer Act 1991
d: Superannuation Schemes Act 1989
e: Unit Trusts Act 1960
2: Sections 5(3) 16(3) 22 40 43(2) 49(3) to (6) sections 43N to 43S
a: those provisions are also repealed; and
b: section 66
3: Section 35A(5)
4: To avoid doubt, the reference to section 48(1)(c) section 164(7) 2013-09-14 Securities Amendment Act 2011 Securities Act 1978 Financial Reporting Act 1993 OIC LI 2014/325 2014-12-01 Securities Act 1978 Securities Markets Act 1988 Securities Transfer Act 1991 Superannuation Schemes Act 1989 Unit Trusts Act 1960 See section 4(2),(3): If brought into force earlier by OIC then change the above date — [Date has been changed —hm]
5: Revocations
The following enactments are revoked:
a: Futures Industry (Client Funds) Notice 1991
b: Futures Industry (Client Funds) Regulations 1990
c: KiwiSaver (Periodic Disclosure) Regulations 2013
d: Securities Act (Contributory Mortgage) Regulations 1988
e: Securities (Fees) Regulations 1998
f: Securities Markets (Disclosure of Relevant Interests by Directors and Officers) Regulations 2003
g: Securities Markets (Fees) Regulations 2003
h: Securities Markets (Insider Trading Exemption—Fonterra Co-operative Group Limited) Regulations 2012
i: Securities Markets (Insider Trading Exemption—Futures Contracts) Regulations 2010
j: Securities Markets (Market Manipulation) Regulations 2007
k: Securities Markets (Substantial Security Holders) Regulations 2007
l: Securities Markets (Unsolicited Offers) Regulations 2012
m: Securities (Moratorium) Regulations 2009
n: Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008
o: Securities Regulations 2009
p: Superannuation Schemes (Fees) Regulations 1992
q: Unit Trusts (Fees) Regulations 1999 OIC LI 2014/325 2014-12-01 Futures Industry (Client Funds) Notice 1991 Futures Industry (Client Funds) Regulations 1990 KiwiSaver (Periodic Disclosure) Regulations 2013 Securities Act (Contributory Mortgage) Regulations 1988 Securities (Fees) Regulations 1998 Securities Markets (Disclosure of Relevant Interests by Directors and Officers) Regulations 2003 Securities Markets (Fees) Regulations 2003 Securities Markets (Insider Trading Exemption—Fonterra Co-operative Group Limited) Regulations 2012 Securities Markets (Insider Trading Exemption—Futures Contracts) Regulations 2010 Securities Markets (Market Manipulation) Regulations 2007 Securities Markets (Substantial Security Holders) Regulations 2007 Securities Markets (Unsolicited Offers) Regulations 2012 Securities (Moratorium) Regulations 2009 Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008 Securities Regulations 2009 Superannuation Schemes (Fees) Regulations 1992 Unit Trusts (Fees) Regulations 1999 See section 4(2),(3): If brought into force earlier by OIC then change the above date—[date has been changed — hm] Amendments to Fair Trading Act 1986
6: Principal Act amended
Sections 7 8 Fair Trading Act 1986 OIC LI 2014/51 2014-04-01 Fair Trading Act 1986 See section 4(2),(3): If brought into force earlier by OIC then change the above date
7: Section 5A repealed
Section 5A
8: New sections 48P to 48S inserted
The following sections are inserted after section 48O
48P: Proceedings relating to financial products or financial services
1: This section applies if—
a: the Commission is considering commencing civil or criminal proceedings in relation to conduct that constitutes, or may constitute, a contravention of any of sections 9 to 13; and
b: the Commission considers that that conduct is in relation to a financial product or a financial service.
2: The Commission must, before commencing those proceedings, obtain the consent of the Financial Markets Authority (the FMA
3: However, a failure to obtain consent under subsection (2) does not affect any proceedings commenced by the Commission.
4: The FMA, when considering whether to give its consent, must have regard to the following matters to the extent that the FMA considers that those matters are relevant:
a: the purposes of the Financial Markets Conduct Act 2013 specified in sections 3 and 4
b: any warning, report, or guideline issued, or comment or statement made, under section 9(1)(a)(ii) or (v) of the Financial Markets Authority Act 2011:
c: any undertaking accepted under section 46 of the Financial Markets Authority Act 2011:
d: any exemption granted under the Financial Markets Conduct Act 2013:
e: any other action that the FMA has taken, or intends to take, in relation to the conduct:
f: any other matters that the FMA considers relevant.
5: The FMA's consent may relate to particular conduct or a class of conduct (whether or not the conduct has already occurred).
6: In this section,— financial product
a: has the same meaning as in section 7
b: includes, in relation to any provision of sections 9 to 13, any class or classes of financial product declared by regulations made under section 548(1)(a) Part 2 financial service section 6(1)
48Q: No pecuniary penalty and fine for same conduct involving financial products or financial services
1: A person cannot be ordered to pay a pecuniary penalty, or be liable for a fine, under the Financial Markets Conduct Act 2013 and be liable for a fine under this Act for the same conduct.
2: A person that has, in respect of certain conduct, paid an amount in lieu of a pecuniary penalty under section 46A(1)(b)
48R: Unsubstantiated representations prohibition does not apply to financial markets disclosure
1: The provision of this Act that corresponds to section 23
2: In this section, disclosure document register entry section 6(1)
48S: Certain conduct under Financial Markets Conduct Act 2013 does not contravene various provisions of this Act
1: Conduct that contravenes section 82, 99, 262, 265, or 427 or clause 27 of Schedule 1
2: For the purpose of this section, conduct must be treated as contravening section 82, 99, 262, 265, or 427 or clause 27 of Schedule 1
9: Transitional provision for existing offences and contraventions
1: This section applies to an offence committed under, or a contravention of, the principal Act before the commencement of section 7
2: The principal Act continues to have effect as if it had not been amended by sections 7 8
a: investigating an offence or a contravention to which this section applies:
b: commencing or completing proceedings for an offence or a contravention to which this section applies:
c: imposing a penalty or other remedy, or making an order, in relation to an offence or a contravention to which this section applies. Amendments to Financial Advisers Act 2008
10: Principal Act amended
Sections 11 to 61 Financial Advisers Act 2008 OIC LI 2014/51 2014-04-01 Financial Advisers Act 2008 Sections 10, 11, 13, 35, 37–39, 41, 42(1)–(3), 42(4) (other than as far as it relates to (1A)), 43–47, 49, 52, 53, 58, 61(2)-(10) brought into force on 1 April 2014 by SR 2014/51/3 OIC LI 2014/325 2014-12-01 Financial Advisers Act 2008 See section 4(2),(3): Provisions not brought into force earlier by OIC (see above) come into force on 1 April 2017- [dated changed hm]
11: Purpose of Act
1: Section 3
1A: That purpose is additional to the purposes of the Financial Markets Conduct Act 2013 set out in sections 3 and 4
2: Section 3(2) To this end, the Act— To those ends, this Act (without limitation)—
3: Section 3(2)(b)
iia: ensures that appropriate governance arrangements apply to services to allow for effective monitoring and reduce governance risks; and
12: Interpretation
1: Section 5 call building society share call credit union share client money client property futures contract investment statement issuer promoter prospectus registered exchange related body corporate security
2: Section 5 acquire 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
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) of the Friendly Societies and Credit Unions Act 1982; 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 credit union for a particular period of time client money client property custodial service DIMS facility DIMS licensee section 392(3) financial markets legislation FMCA financial product
a: an equity security:
b: a debt security:
c: a managed investment product:
d: a derivative information investment authority section 12(3) issuer section 11(1)(b) licensed market section 6(1) offeror section 6(1) personalised DIMS product disclosure statement PDS section 6(1) promoter regulated offer section 41 related section 12(2)
3: Section 5 category 1 product 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
4: The definition of category 2 product section 5
ja: a DIMS facility, if the investment authority covers only category 2 products; or
5: Paragraph (a) of the definition of product provider section 5
a: the issuer, in the case of an FMCA financial product:
6: The definition of product provider section 5
ca: the person to whom the investment authority is granted, in the case of a DIMS facility:
13: Who are clients
Section 5A(1)(b) the financial product is acquired or disposed of or the client money or client property is held the client money or client property is received, held, paid, or transferred under the service
14: Who are wholesale clients
1: Section 5C(1)(c)
2: Section 5C(1)(d) (except in respect of a discretionary investment management service) an entity
3: Section 5C(1)
f: a person who is a wholesale investor within the meaning of clause 3(2) of Schedule 1 see
g: a person who is, in relation to an offer of FMCA financial products, a wholesale investor within the meaning of clause 3 of Schedule 1
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 and 5 of Schedule 1
gb: a person who is, in relation to a DIMS facility provided by a DIMS licensee, a wholesale investor under clause 36(b) of Schedule 1
4: Section 5C(3)
3: The relevant time, for the purposes of applying Schedule 1
15: Who are eligible investors
Section 5D(1)(a)
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
16: How to opt out of being wholesale client
Section 5G(5) under section 5D
17: When person provides discretionary investment management service
1: Section 12(1) FMCA financial products
2: Section 12
3: For the purposes of this Act, the authority referred to in subsection (1)(b) is the investment authority
18: Other exemptions
1: Section 14(1)
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; or
ii: exempted, by section 389 section 389(2)(b) section 388(c)
2: Section 14(1)
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 of Schedule 1
3: Section 14(1)(o)
i: a product disclosure statement, a disclosure document under clause 26 of Schedule 1 subpart 4 of Part 3 section 89
4: Section 14
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
19: When financial adviser service is personalised service or class service
Section 15
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).
20: Who may provide financial adviser service
Section 17
1A: Sections 18 to 20 only permit a person to provide a service to the extent that the service is within the scope of the person's authorisation, registration, or grant of QFE status (including, in the case of a QFE adviser, taking into account any limitation imposed under section 67A or 75B(4)).
21: Who is permitted to provide personalised service to retail clients
1: Section 18(1)(a) or providing a discretionary investment management service
2: Section 18(1)(a)
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):
3: Section 18(1)(c) or providing a discretionary investment management service
4: Section 18(1)
d: if providing a discretionary investment management service, an authorised financial adviser.
5: Section 18
22: Who is permitted to provide class service to retail clients
Section 19
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
23: Who may hold themselves out as authorised financial adviser
Section 20A
1A: A person ( A B
24: Financial adviser must make disclosure before providing personalised service to retail client
Section 22
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); or
b: if not practicable before, as soon as practicable after the time applying under paragraph (a).
25: What financial adviser must disclose
Section 23(2)
ca: information relating to any discretionary investment management service or any broking service provided:
26: No compliance with disclosure obligation if disclosure out of date
1: Section 29(1) or, in the case of a discretionary investment management service, the investment authority is exercised
2: Section 29(2)(b)(iv) or, in the case of a discretionary investment management service, change any instruction in relation to the service
27: New section 29A inserted
The following section is inserted after section 29
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 of Part 9 of the Financial Markets Conduct Act 2013 (if any).
28: What is conduct obligation and when does it apply
Section 32(2)
c: sections 37 to 45A apply to an authorised financial adviser:
29: Financial adviser must exercise care, diligence, and skill
Section 33
3: This section does not apply to a service to the extent that section 40
30: New section 38 substituted
Section 38
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) see 1988 No 234 s 41S
31: New sections 39 to 44 inserted
The following sections are inserted after section 38
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.
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.
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
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.
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)
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 of Part 9 of the Financial Markets Conduct Act 2013 (if any).
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.
32: Eligibility to be authorised
1: Section 54 for a financial adviser service to be authorised
2: Section 54(a)
iiia: A meets the eligibility criteria (if any) that are prescribed by the regulations for that kind of financial adviser service; and
33: FMA must approve or decline application for authorisation
1: Section 55(1)(b) a discretionary investment management service on behalf of clients a personalised DIMS
2: Section 55
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.
3: Section 55(2) (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)
4: Section 55(5)(a) (in whole or in part) application
34: FMA's powers in relation to default by authorised financial adviser
Section 59
6: The FMA may act under this section in respect of the authorisation in whole or in part.
35: What is broking service
1: Section 77B(1) and (2)
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 subsection (1)(b)
2: Section 77B Corporations Act 2001 s 766E(1) (Aust)
36: Other exemptions
Section 77C(1)
d: a person providing a relevant service in the course of acting as a derivatives issuer under a licence under Part 6
37: What broker must disclose and form of disclosure
Section 77F(1)
g: information relating to the broking service provided:
38: What is conduct obligation and when does it apply
Section 77J(3)
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
39: Section 77N repealed
Section 77N
40: New section 77O substituted
Section 77O
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
41: Heading above section 77P substituted
The heading above section 77P Obligations for handling client money and client property
42: Broker must pay client money into separate trust account
1: The heading to section 77P and hold client property on trust
2: Section 77P(1) retail
3: Section 77P(1)
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
4: Section 77P
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)
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.
43: Broker must account for client money and client property
Section 77Q(1) retail
44: Broker must keep records of client money and client property
1: Section 77R(1) retail
2: Section 77R(2) retail
3: Section 77R(2)(c) where when
4: Section 77R
2A: The broker must also keep all other prescribed records.
5: Section 77R(3)
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.
45: New section 77RA inserted
The following section is inserted after section 77R
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
46: Restrictions on use of client money and client property
Section 77S(1) retail
47: Protection of client money and client property held on trust
Section 77T retail
48: Content of code
Section 86
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.
49: Section 120 repealed
Section 120
50: Offence of recommending offer of securities when subscription illegal
The heading to section 121 of securities when subscription illegal that contravenes financial markets legislation
51: Offence of receiving client money if offer for subscription illegal
The heading to section 134B for subscription illegal contravenes financial markets legislation
52: Offence of contravening requirement to pay client money into separate trust account
The heading to section 134C and hold client property on trust
53: New section 134EA inserted
The following section is inserted after section 134E
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.
54: Heading to subpart 4 of Part 4 amended
The heading to subpart 4 , banning orders,
55: Sections 137C to 137J and heading repealed
Sections 137C to 137J section 137F
56: Pecuniary order for contravening wholesale certification requirement
1: The heading to section 137K or conduct obligations related to discretionary investment management service
2: Section 137K(1) or a conduct obligation under any of sections 39 to 44
3: Section 137K(5)
4: The heading above section 137K or conduct obligations related to discretionary investment management service
5: Section 137L(1) or a conduct obligation related to a discretionary investment management service certification requirement
57: When FMA may make temporary banning orders for financial adviser services or broking services
Section 137M(a) Securities Act 1978 Financial Markets Conduct Act 2013
58: Approval of standard conditions for incorporation in authorisations and grants of QFE status
Section 147A(3) ; 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.
59: FMA may grant exemptions
Section 148
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.
60: New section 150 inserted
The following section is inserted after section 149
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.
61: General regulations
1: Section 154(1)(b) a security an FMCA financial product
2: Section 154(1)
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 of Part 6
3: Section 154(1)(h) and, for the purposes of section 55(1A)
4: Section 154(1)(l)
i: that any or all of sections 77P to 77T to apply to wholesale clients and the extent to which and the circumstances in which they so apply:
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 and what entities are prescribed for the purposes of the trust account, and other provisions regulating the establishment and operation of the trust account and the receipt, handling, and application of client money and client property by a broker (including requirements relating to the investment of money that is held in trust and providing for how interest or other income from that investment is to be paid, retained, or otherwise dealt with):
ii: provisions regulating the keeping, retention, reconciliation, inspection, and audit or review of trust account records and other records and procedures of brokers:
5: Section 154(1)(l)(iii) (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
6: Section 154(1)(l)
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:
7: Section 154(5) or (gc) (1)(a)
8: Section 154(5)(a) exemption is regulations are
9: Section 154(5)(b) exemption relates regulations relate
10: Section 154(5)
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. Amendments to Financial Markets Authority Act 2011
62: Principal Act amended
Sections 63 to 72 Financial Markets Authority Act 2011 OIC LI 2014/51 2014-04-01 Financial Markets Authority Act 2011 See section 4(2),(3): Sections 62, 64, 65, 66(1), 67–69, 70(1), (4) & (6), 71 brought into force on 1 April 2014 by SR 2014/51/3 OIC LI 2014/325 2014-12-01 Financial Markets Authority Act 2011 See section 4(2),(3): Provisions not brought into force earlier by OIC (see above) come into force on 1 April 2017
63: Interpretation
1: Section 4 dealings in securities dealing section 6(1)
2: Section 4 financial products section 7 involved in a contravention section 533 issuer section 11(1)(b) offeror section 6(1) product holder section 6(1) regulated offer section 41(1) regulated product section 41(2)
3: Paragraph (b) of the definition of financial markets participant section 4
i: a person who participates in a regulated offer as an issuer or offeror:
ii: a person who participates in an offer of financial products as an issuer or offeror and who is required to give a disclosure document under clause 26 of Schedule 1
iii: a person who acts, in respect of regulated products, as a supervisor, a manager, an investment manager, an administration manager, a custodian, or a qualified auditor (within the meaning of those terms in section 6(1)
iiia: a listed issuer (within the meaning of section 6(1)
4: Paragraph (c) of the definition of financial markets participant section 4
i: a body corporate that is related to a person referred to in paragraph (a) or (b) (within the meaning of section 12(2)
5: Section 4 securities
64: FMA's functions
1: Section 9(1)(a)
v: stating whether or not, or in what circumstances, the FMA intends to take or not take action over a particular state of affairs or particular conduct (for example, to give a person some level of certainty that the FMA will take no further action in relation to a matter):
2: Section 9(1)(c) is amended by inserting or an involvement in a contravention contravention
65: Power to enter and search place, vehicle, or other thing
1: Section 29(1) and (3)(a) , or being involved in a contravention, constitute a contravention
2: Section 29(1)(a) or involvement constitute such a contravention
66: FMA may exercise person’s right of action
1: Section 34(2)(b) fraud, negligence, default a contravention, an involvement in a contravention, fraud, negligence
2: Section 34(3)
c: if person A is an issuer, any product holders of financial products issued by person A.
3: Section 34(4)
67: FMA may accept undertakings
Section 46
1A: An undertaking may be given in connection with the FMA making a statement under section 9(1)(a)(v)
68: New section 46A inserted
The following section is inserted after section 46
46A: Undertaking may include requirements as to compensation or penalties
1: An undertaking under section 46 may include—
a: an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention, involvement in a contravention, or possible contravention, or involvement in a contravention of any provision of the financial markets legislation:
b: an undertaking to pay to the FMA an amount in lieu of a pecuniary penalty.
2: The FMA must ensure that each amount paid under subsection (1)(b)
3: If an undertaking referred to in subsection (1)(b)
4: The notice under subsection (3)
a: a statement of the amount that has been undertaken to be paid; and
b: a brief description of the circumstances and nature of the alleged contravention to which the undertaking relates.
5: This section does not limit section 46.
69: New heading and section 48A inserted
The following heading and section are inserted after section 48 Power to appear and be heard and adduce evidence
48A: FMA may appear and be heard and adduce evidence
1: The FMA is entitled to appear and be heard in any specified proceedings.
2: The FMA has the right to adduce evidence and the right to cross-examine witnesses if the FMA appears under this section, unless the specified proceedings are by way of appeal.
3: The rights referred to in this section apply whether or not the FMA was a party to the specified proceedings at any earlier stage in the proceedings.
4: In this section, specified proceedings
a: civil or criminal proceedings under, or in respect of, any financial markets legislation:
b: civil proceedings that, in connection with the offer, issue, transfer, supply, or use of financial products or financial services, seek damages or other relief for a contravention, involvement in a contravention, fraud, negligence, breach of duty, or other misconduct.
70: FMA may require its warning to be disclosed
1: Section 49(1)
b: ensure that every restricted communication of the kind that is specified in the order and that is distributed by or on behalf of the relevant person or any of those associated persons contains a copy of the warning in a prominent position or is accompanied by a copy of the warning:
2: Section 49(1)(c) disclosure document or other ensure that any
3: Section 49(7)(a)(ii) securities financial products
4: Section 49(7)
b: disclosure document
i: has the same meaning as in section 6(1)
ii: includes a register entry (within the meaning of that Act):
5: Section 49(7)(c) securities financial products
6: Section 49(7)
d: offer restricted communication associated person distributed section 6(1)
71: Levy of financial markets participants and other persons registered or incorporated under Acts referred to in Schedule 1
Section 68
10: The FMA, or any other person prescribed for the purposes of this subsection, must ensure that—
a: each levy payment is paid into a Crown Bank Account and is separately accounted for; or
b: by the 20th day of the month after the month in which the FMA or other person receives a levy payment, the levy payment is paid into a Crown Bank Account.
72: Schedule 1 amended
1: Part 1 of Schedule 1
Part 1: Auditor Regulation Act 2011 Financial Advisers Act 2008 Financial Markets Authority Act 2011 Financial Markets Conduct Act 2013 Financial Markets Supervisors Act 2011 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Part 4 and Schedule 1 of the KiwiSaver Act 2006 Sections 45U and 45V of the Public Finance Act 1989
2: Part 2 of Schedule 1 Trustee Companies Management Act 1975 Amendments to KiwiSaver Act 2006
73: Principal Act amended
Sections 74 to 109 KiwiSaver Act 2006 2013-09-14 KiwiSaver Act 2006 Sections 91, 101(3), (6), & (7), 105, and 107 OIC LI 2014/325 2014-12-01 KiwiSaver Act 2006 See section 4(2),(3): If brought into force earlier by OIC then change the above date
74: Purpose
Section 3(2) enables the establishment of schemes provides for schemes
75: Interpretation
1: Section 4(1) administration manager, complying superannuation fund, defined contribution scheme, department, exempt employer, fee subsidy, independent trustee, investment manager, investment statement, KiwiSaver scheme, KiwiSaver schemes register, manager, member’s accumulation, member’s interest, Minister, nominated person, nominee, promoter, registered superannuation scheme, related company, restricted KiwiSaver scheme restricted scheme, trust deed, trustee corporation, trustees umbrella trust
2: Section 4(1) administration manager section 6(1) complying superannuation fund section 6(1) department exempt employer
a: who was approved as an exempt employer under section 30 (before its repeal), or who has been approved to succeed to exempt employer status under section 152; and
b: whose approval has not been revoked investment manager section 6(1) KiwiSaver scheme section 6(1) managed investment scheme section 6(1) manager section 6(1) member's accumulation
a: the member’s contributions; and
b: any vested employer contributions in respect of the member; and
c: any fee subsidies paid in respect of the member under regulations made under section 228(1)(n) or (o) before the revocation of those regulations; and
d: the Crown contribution paid in respect of the member member's interest
a: the member’s accumulation; and
b: any unvested employer contributions Minister Part 4, sections 228 and 230,
a: means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of Part 4
b: includes, for the purposes of subpart 2 of Part 4 section 228 or 230 section 132 product disclosure statement register of managed investment schemes Schedule 2 restricted scheme section 6(1) retirement scheme section 6(1) scheme superannuation scheme section 6(1) 2013 supervisor section 6(1) trust deed section 6(1) workplace savings scheme section 6(1) 2013
3: The definition of default investment product section 4(1) section 177 section 132
4: The definition of default KiwiSaver provider section 4(1) section 177 section 132
5: The definition of default KiwiSaver scheme section 4(1) section 177 section 132
6: Paragraph (a) of the definition of defined benefit scheme member section 4(1) registered superannuation scheme superannuation scheme
7: Paragraph (a)(i) of the definition of defined benefit scheme member section 4(1) , section 119G of this Act, or section 179(2)(b) section 9BAA of the Superannuation Schemes Act 1989
8: Paragraph (d) of the definition of fee section 4(1) referred to in section 200 or charged under regulations made under section 228(c) referred to in section 67 of the Financial Markets Authority Act 2011 or charged under regulations made under section 228(1)(a)
9: The definition of KiwiSaver scheme rules section 4(1) section 126 section 116
76: Meaning of provider
Section 5
1: For the purpose of anything that must or may be done by or to or in relation to a scheme, provider
a: means the person who is the manager of the scheme; and
b: in the case of a restricted scheme, includes any person to whom the manager has made a lawful delegation to do any thing (for example, an administration manager).
77: Outline
1: Section 8(3) regulates contains additional governance provisions relating to
2: Section 8(5) and Schedules 2 and 3 contain contains
3: Section 8(6) and the Superannuation Schemes Act 1989
4: Section 8
7: Also, other rules about KiwiSaver schemes and complying superannuation funds are contained in the Financial Markets Conduct Act 2013 (for example, rules about registration, governance, and offers of interests).
78: Outline of how people become members of overall KiwiSaver scheme
Section 9(2) This subpart Subpart 4 of Part 4
79: Extension of opt-out period
Section 18(1)(b) an investment statement the product disclosure statement
80: Sections 24 to 32 and heading repealed
Sections 24 to 32
81: Employer must also supply investment statement for employer’s chosen KiwiSaver scheme (if any)
1: The heading to section 43 investment statement product disclosure statement
2: Section 43(a) an investment statement for the product disclosure statement for the offer of interests in
82: Effect of employer choice of KiwiSaver scheme
Section 48
2: On the first day that this section applies to an employee, the employee is treated, for the purposes of this Act and the Financial Markets Conduct Act 2013, as having—
a: been given a product disclosure statement for the offer of interests in the employer’s chosen KiwiSaver scheme; and
b: immediately after, applied to become a member of that scheme; and
c: become a member of that scheme.
3: The provider of the employer’s chosen KiwiSaver scheme must accept that application and register the employee as a member of the scheme.
4: The membership contract of the KiwiSaver scheme is binding on the employee and the provider, and enforceable as if it were a contract that was freely and voluntarily entered into.
5: The contract may be varied, replaced, cancelled, or otherwise terminated, and the managed investment products may be returned,—
a: to the extent permitted by section 131
b: except as provided by that section, in the same way as if the contract were freely and voluntarily entered into.
83: Effect on existing members of change, etc, in employer chosen scheme
Section 49(2) section 119G (which provides for transfers without consent in certain circumstances) section 181
84: Commissioner provisionally allocates certain people to default KiwiSaver schemes and sends investment statement
1: The heading to section 50 investment statement product disclosure statement
2: Section 50(3)(c) investment statement product disclosure statement
3: Section 50(4)
b: the Commissioner receives notice under section 212(1)(b) paragraph (ba)
ba: a scheme winds up, if that winding up is after the Commissioner receives notice under that section; or
c: the Commissioner receives notice under section 131(1)
85: New section 52 substituted
Section 52
52: Effect of completion of allocation
1: A person whose allocation is completed under section 51 is treated, for the purposes of this Act and the Financial Markets Conduct Act 2013, as having—
a: been given a product disclosure statement for the offer of interests in the default KiwiSaver scheme; and
b: immediately after, applied to become a member of that scheme; and
c: become a member of that scheme.
2: The provider of the default KiwiSaver scheme to which the person has been allocated must accept that application and register the person as a member of the scheme.
3: The membership contract of the default KiwiSaver scheme is binding on the person and the provider, and enforceable as if it were a contract that was freely and voluntarily entered into.
4: The contract may be varied, replaced, cancelled, or otherwise terminated, and the managed investment products may be returned,—
a: to the extent permitted by section 131
b: except as provided in that section, in the same way as if the contract were freely and voluntarily entered into.
86: Notification of transfers and requirement to transfer funds and information
Section 56
6: The circumstances are that—
a: members have been notified of a proposal to transfer all of the members of the old scheme to another scheme under section 180
b: a copy of a winding-up order or resolution of the old scheme has been given to the FMA under section 212
87: Involuntary transfers
1: Section 57(1)
b: the Commissioner receives notice under section 212(1)(b)
ba: a scheme winds up, if that winding-up is after the Commissioner receives notice under section 212(1)(b)
c: the Commissioner receives notice under section 131(1)
2: Section 57(2) if section 119G applies to a transfer to which section 181
88: Compulsory employer contribution amount: general rule
1: Section 101D(5)(b)
a: omitting registered superannuation scheme retirement scheme
b: inserting in subparagraph (i) or section 179(2)(b)
2: Section 101D(6) registered superannuation scheme retirement scheme
3: Section 101D(8)(b) registered superannuation scheme retirement scheme
89: De minimis: other contributions and hybrid schemes amount
Section 101FC(a) and (b) registered superannuation scheme retirement scheme
90: Sections 101H to 101K and heading repealed
Sections 101H to 101K
91: Implied provision as to transfer of members, etc
Section 119C(2) and regulations made under section 230 section 119G
92: Part 4 substituted
Part 4
4: Additional governance provisions
115: Overview of Part
This Part contains governance provisions relating to schemes that are additional to those contained in the Financial Markets Conduct Act 2013, and other matters related to the functions of the Financial Markets Authority, as follows:
a: subpart 1
b: subpart 2
c: subpart 3
d: subpart 4
e: subpart 5
1: Implied terms and other regulation of schemes
KiwiSaver scheme rules
116: KiwiSaver scheme rules are implied in trust deeds establishing KiwiSaver scheme
1: The provisions set out in Schedule 1 are to be known as the KiwiSaver scheme rules.
2: The KiwiSaver scheme rules set out in Schedule 1 are implied in every trust deed that establishes a KiwiSaver scheme in relation to the KiwiSaver scheme.
3: The KiwiSaver scheme rules—
a: apply despite anything to the contrary in the trust deed; and
b: are enforceable by the manager, the supervisor, or any member of the scheme. 2006 No 40 s 126 as at October 2011 Provisions about unreasonable fees that apply to both KiwiSaver schemes and complying superannuation funds
117: Duty to give notice to FMA about fee increases
1: Any person who increases a fee must give notice of the increase to the FMA before or as soon as is reasonably practicable after the increase takes effect if—
a: the person is referred to in clause 2 of the KiwiSaver scheme rules (which relates to a requirement that fees not be unreasonable), and that clause applies to the fee; or
b: (in the case of a complying superannuation fund) the person would be referred to in clause 2 of the KiwiSaver scheme rules, and that clause would apply to the fee, if the complying superannuation fund were a KiwiSaver scheme.
2: Every person commits an offence, and is liable on conviction to a fine not exceeding the amount set out in subsection (4)
3: If any body corporate commits an offence under this section, every officer of the body corporate who knowingly authorises or permits the offence also commits the offence.
4: A person who is convicted of an offence under this section is liable,—
a: the first time that the person is convicted, to a fine not exceeding $25,000; and
b: on every other occasion that the person is convicted, to a fine not exceeding $50,000. 1989 No 10 s 39; 2006 No 40 ss 189B, 199 as at October 2011
118: Exercise of functions by FMA about unreasonable fees
In considering whether a fee is unreasonable in relation to the provision of a KiwiSaver scheme or a complying superannuation fund, the FMA—
a: must have regard to any prescribed matter; and
b: may have regard to any other matter that the FMA considers relevant; and
c: may make decisions in accordance with any prescribed process. 2006 No 40 s 127 as at October 2011
119: Powers of High Court in relation to unreasonable fees
1: If the High Court is satisfied, on the application of a member of a scheme or the FMA, that any of the persons referred to in section 117(1)(a) or (b)
2: The High Court may make any other order it thinks fit for the purpose of giving effect to an order under subsection (1)
3: An application for an order may be made within 1 year of the day that the fee is imposed or debited.
4: In determining whether a fee is unreasonable for the purposes of this section, the High Court—
a: must have regard to any prescribed matter; and
b: may have regard to any other matter it thinks fit. 1989 No 10 s 40; 2006 No 40 s 189C as at October 2011 Other implied terms
120: Terms relating to backdated validation implied into trust deeds of KiwiSaver schemes
1: Terms necessary for giving effect to the law relating to back-dated validation of invalid membership under subpart 4 of Part 2 are implied into the trust deed that establishes a KiwiSaver scheme in relation to the KiwiSaver scheme.
2: The terms—
a: apply despite anything to the contrary in the trust deed of the scheme; and
b: are enforceable by the manager, the supervisor, or a member of the scheme. 2006 No 40 s 128B as at October 2011
121: Terms relating to members’ tax credits implied into trust deeds of KiwiSaver schemes and complying superannuation funds
1: Terms necessary for giving effect to the law relating to the tax credits described in section MK 1 of the Income Tax Act 2007 are implied into the trust deed that establishes—
a: a KiwiSaver scheme in relation to the KiwiSaver scheme:
b: a complying superannuation fund in relation to the complying superannuation fund.
2: The terms—
a: apply despite anything to the contrary in the trust deed of the scheme; and
b: are enforceable by the manager, the supervisor, or a member of the scheme. 2006 No 40 s 128A as at October 2011
122: Terms relating to compulsory employer contributions implied into trust deeds of KiwiSaver schemes and complying superannuation funds
1: Terms necessary for giving effect to the law relating to compulsory employer contributions are implied into the trust deed that establishes—
a: a KiwiSaver scheme in relation to the KiwiSaver scheme:
b: a complying superannuation fund in relation to the complying superannuation fund.
2: The terms—
a: apply despite anything to the contrary in the trust deed of the scheme; and
b: are enforceable by the manager, the supervisor, or a member of the scheme. 2006 No 40 s 128D as at October 2011
123: Terms relating to lump sum payments by complying superannuation funds
1: Terms necessary for giving effect to clause 2(c) of Schedule 28 of the Income Tax Act 2007 are implied into the trust deed that establishes a complying superannuation fund in relation to the complying superannuation fund.
2: The terms—
a: apply despite anything to the contrary in the trust deed of the scheme; and
b: are enforceable by the manager, the supervisor, or a member of the scheme. 2006 No 40 s 128C as at October 2011 Other regulation of schemes
124: Requirement for annual return
1: The manager of a KiwiSaver scheme and the manager of a complying superannuation fund must provide an annual return to the FMA that—
a: is in the prescribed form; and
b: meets any further prescribed requirements.
2: The prescribed requirements may include a requirement to provide statistical information in relation to the KiwiSaver scheme or complying superannuation fund.
3: The annual return must be provided before the prescribed date and relate to the prescribed 12-month period.
4: Nothing in this section requires the manager to provide—
a: information about an identifiable individual; or
b: information that is not in the possession or control of the manager; or
c: information that is not reasonably ascertainable from information that is in the possession or control of the manager.
5: Every person commits an offence, and is liable on conviction to a fine not exceeding the amount set out in subsection (7)
6: If a body corporate commits an offence under this section, every officer of the body corporate who knowingly authorises or permits the offence also commits the offence.
7: A person who is convicted of an offence under this section is liable,—
a: the first time that the person is convicted, to a fine not exceeding $25,000; and
b: on every other occasion that the person is convicted, to a fine not exceeding $50,000. 2006 No 40 ss 125, 199 as at October 2011
125: Unclaimed money held in KiwiSaver scheme
1: Section 77 of the Trustee Act 1956 applies subject to this section in relation to a member’s interest in a KiwiSaver scheme held by, or in the control of, the supervisor or manager of that scheme.
2: Section 77 of the Trustee Act 1956 applies to the member’s interest only if, at the time that section is applied,—
a: the member of the scheme in respect of which the trust exists is able to be identified, according to the information held by or available to the manager, as being at least 5 years older than the date on which a withdrawal is permitted under clause 4 of the KiwiSaver scheme rules; and
b: the manager has ensured that reasonable efforts have been made to locate the member but the member is unable to be found; and
c: there has been no contribution made to the member’s account in the preceding 5 years, excluding any Crown contribution. 2006 No 40 s 195 as at October 2011
126: Restrictions on transactions for scheme with fewer than 20 members
1: This section applies to a KiwiSaver scheme if the scheme has fewer than 20 members, treating all interests in the scheme held by persons associated under subpart YB of the Income Tax Act 2007 as being held by 1 person.
2: The provider must not lend money or provide financial assistance to—
a: a member:
b: a person associated (under subpart YB of the Income Tax Act 2007) with a provider or member. 2006 No 40 s 117A as at October 2011
127: Member’s interest in KiwiSaver scheme not assignable
1: Except as expressly provided in this Act, a member’s interest or any future benefits that will or may become payable to a member under the KiwiSaver scheme must not be assigned or charged or passed to any other person whether by way of security, operation of law, or any other means.
2: However, subsection (1) 2006 No 40 s 196 as at October 2011
128: Application of Financial Transactions Reporting Act 1996 to default allocation of members to KiwiSaver schemes
1: This section applies in respect of any allocation of a person ( A A 52
2: For the purposes of section 6 of the Financial Transactions Reporting Act 1996, an application or allocation to which this section applies is not a request to a financial institution for the person to become a facility holder as defined in section 2(1) of that Act.
3: Despite subsection (2)
a: a provider of a KiwiSaver scheme must make reasonable efforts to verify A’s identity at the time that A becomes a member of a KiwiSaver scheme; and
b: if A makes a voluntary payment into the KiwiSaver scheme, the payment must, for the purposes of section 6 of the Financial Transactions Reporting Act 1996, unless the provider has already verified A’s identity, be treated as a request to a financial institution for the person to become a facility holder within the meaning of that Act.
4: In this section, voluntary payment
a: in relation to a member of a KiwiSaver scheme who has become a member of that scheme under section 48 or 52
b: in relation to a member of a KiwiSaver scheme to whom paragraph (a) 2006 No 40 s 204 as at October 2011
129: Product disclosure statements must contain responsible investment statement
1: Every product disclosure statement relating to an offer of interests in a KiwiSaver scheme or a complying superannuation fund must contain a statement in the following form if it is a scheme that takes responsible investment, including environmental, social, and governance considerations, into account in the investment policies and procedures of the scheme: Responsible investment, including environmental, social, and governance considerations, is taken into account in the investment policies and procedures of the scheme as at the date of this product disclosure statement. You can obtain an explanation of the extent to which responsible investment is taken into account in those policies and procedures at the issuer's Internet site at [ specify Internet site address
2: Every product disclosure statement relating to an offer of interests in a KiwiSaver scheme or a complying superannuation fund must contain a statement in the following form if it is a scheme that does not take responsible investment, including environmental, social, and governance considerations, into account in the investment policies and procedures of the scheme: Responsible investment, including environmental, social, and governance considerations, is not taken into account in the investment policies and procedures of the scheme as at the date of this product disclosure statement.
3: A failure to comply with this section must be treated as if it were a failure to comply with the requirements of regulations made under the Financial Markets Conduct Act 2013 as to the information that a product disclosure statement must contain. 2006 No 40 s 205A as at October 2011 Interface with securities law
130: Application of Financial Markets Conduct Act 2013
1: An employer does not contravene the Financial Markets Conduct Act 2013 by reason only that, acting as an employer, that person—
a: complies with the person’s responsibilities as an employer under this Act; or
b: chooses a KiwiSaver scheme as the employer’s chosen KiwiSaver scheme under section 47.
2: No act or omission by the Crown, or any officer or employee of the Crown, that occurs during the performance or exercise, or intended performance or exercise, of any functions, duties, or powers in respect of KiwiSaver schemes and complying superannuation funds, gives rise to any civil or criminal liability of the Crown or those officers or employees under the Financial Markets Conduct Act 2013. 2006 No 40 s 209 as at October 2011
131: Certain sections of Financial Markets Conduct Act 2013 modified in relation to KiwiSaver scheme
1: The manager of a KiwiSaver scheme must provide the Commissioner with notice of—
a: any member—
i: who has given notice under section 35(2) or 54(2)
ii: to whom money would have had to have been repaid under section 80(1)(a) or 85(3)(a)
iii: who has not confirmed that he or she still wants to acquire the financial products under section 80(2) or 85(4)
b: if all or part of the consideration for the issue of financial products to that member was the transfer of the member’s accumulation from another KiwiSaver scheme, the name of that scheme from which the member’s accumulation was transferred; and
c: the name, address, and tax file number of the member.
2: If a member is notified to the Commissioner under subsection (1),—
a: the following do not apply:
i: any right of the member under the Financial Markets Conduct Act 2013 to withdraw from holding the financial product and to have the relevant money repaid; and
ii: any duty of the issuer or any other person to repay any contribution under section 36, 55, 80, or 85
b: instead, the following both apply:
i: a process for the person to be allocated to a new scheme ( see 52
ii: a process for the person to be transferred to a new scheme ( see 2006 No 40 s 210 as at October 2011
2: Default KiwiSaver schemes
132: Appointment of default providers
1: The Minister may appoint 1 or more managers for a specified term to provide—
a: a default KiwiSaver scheme that is specified in the instrument of appointment; and
b: a default investment product of that default KiwiSaver scheme that is specified in the instrument of appointment.
2: The appointment may be made subject to such terms and conditions as the Minister considers fit.
3: The instrument of appointment must—
a: identify the default KiwiSaver scheme and the default investment product of the scheme:
b: state any terms and conditions of the appointment:
c: state any prescribed information.
4: In determining whether to appoint a manager as a default KiwiSaver provider under this section, the Minister must seek the advice of the FMA.
5: A restricted scheme is not eligible to be a default KiwiSaver scheme. 2006 No 40 s 177 as at October 2011
133: Provisions of instrument of appointment to prevail over provisions of trust deed
1: The manager and the supervisor must take all reasonable steps to ensure that the trust deed of a default KiwiSaver scheme is consistent with the instrument of appointment.
2: The provisions of the instrument of appointment prevail over the terms of the trust deed establishing the KiwiSaver scheme that relate to the KiwiSaver scheme.
3: A product disclosure statement relating to an offer of interests in a KiwiSaver scheme to which an instrument of appointment under section 132 2006 No 40 s 178 as at October 2011
134: Effect of appointment under section 132
If a person is appointed as a provider of a default KiwiSaver scheme under an instrument of appointment under section 132
a: the default KiwiSaver scheme must be shown as a default KiwiSaver scheme on the register of managed investment schemes; and
b: the Commissioner may nominate the default investment product of the scheme as a default investment product to which persons may be allocated for the purposes of sections 50 to 52 2006 No 40 s 179 as at October 2011
135: Appointment must be notified
1: The Minister must, as soon as practicable after an appointment under section 132
2: This section also applies to any variation, renewal, or revocation of the instrument of appointment. 2006 No 40 s 180 as at October 2011
136: Power of High Court to act in respect of terms and conditions of appointment as default KiwiSaver scheme and regulations relating to default KiwiSaver schemes
1: This section applies if the High Court is satisfied that the manager of a default KiwiSaver scheme appointed under section 132
a: a breach of the terms and conditions of the instrument of appointment referred to in section 132
b: a breach of regulations made under section 230.
2: Sections 480 and 481
3: Without limiting those sections, the High Court may make any orders on any terms and conditions that it thinks appropriate, including—
a: an order to restrain the manager or the supervisor of the scheme, or both, from engaging in conduct that constitutes, or would constitute, the breach:
b: an order to require the manager or the supervisor of the scheme, or both,—
i: to do a particular act or thing:
ii: to comply with the conditions of the instrument of appointment:
c: an interim order. 2006 No 40 s 183 as at October 2011
137: Revocations, etc, of instruments of appointment
1: An instrument of appointment may provide for its renewal or variation or expiry or revocation by the Minister or the provider.
2: Despite any matter provided for in an instrument of appointment as to its expiry or revocation, the Minister may, by notice in writing to a provider, revoke an instrument of appointment if—
a: the FMA directs that a scheme's registration as a KiwiSaver scheme be removed under section 134
b: the FMA directs that a scheme's registration as a managed investment scheme be cancelled under section 195
c: an order or resolution to wind up the scheme is made as referred to in section 212
d: the Minister is satisfied that—
i: the provider is not operating in accordance with the terms and conditions of the instrument of appointment; and
ii: the failure to operate in accordance with the terms and conditions of the instrument of appointment is a significant breach as prescribed in regulations made under section 230.
3: The appointment of the provider under section 132
4: The Minister must notify the FMA, the Commissioner, and the Registrar of Financial Service Providers (for the purpose of updating the register of managed investment schemes) as soon as practicable after an instrument of appointment is revoked. 2006 No 40 s 184 as at October 2011
138: Duration of obligations as default provider after terminating event
1: In this section,— reporting obligations
a: any requirement for the provider to report to persons specified in an instrument of appointment; and
b: any requirement for the provider to produce to any persons specified in an instrument of appointment any papers, documents, records, or things in respect of the scheme (and the power of any person to require production of those papers, documents, records, or things) terminating event
a: the revocation of an instrument of appointment by the provider or the Minister under the terms and conditions of the instrument of appointment; or
b: the revocation of an instrument of appointment in accordance with section 137(2)
c: the expiry of the term of appointment (as specified in the instrument of appointment and in accordance with any renewal of the term of appointment).
2: Despite any terminating event,—
a: any terms and conditions of the instrument of appointment that relate to a provider’s reporting obligations in respect of the provider’s scheme continue to apply until the date when the term of appointment would have expired but for the terminating event; and
b: regulations made under section 230 continue to apply in relation to the provider until the provider has completed every act or thing that the regulations require the provider to do following any terminating event. 2006 No 40 s 185 as at October 2011
3: Complying superannuation funds
139: Outline of subpart
1: This subpart contains rules relating to complying superannuation funds (which are schemes that were approved for the purposes of the Income Tax Act 2007 under section 35 of the Superannuation Schemes Act 1989 before its repeal) as follows:
a: the rules that apply to complying superannuation funds:
b: the rules relating to revocation of approval of complying superannuation funds.
2: These rules are in addition to rules elsewhere in this Act that apply to complying superannuation funds (for example, in relation to implied terms and unreasonable fees).
140: Failure to pay: provider notice
1: This section applies if the provider of a complying superannuation fund knows that an employer has failed to pay to the provider an amount of compulsory employer contribution in accordance with subpart 3A of Part 3.
2: The provider must, as soon as practicable, give a notice to the employer requesting the payment of the amount of compulsory employer contribution. The provider must send to the FMA a copy of the notice.
3: If the employer does not pay the amount of compulsory employer contribution to the provider within 1 month of this section first applying for the amount, and the total of the amounts of compulsory employer contributions unpaid is more than $500, then the provider must immediately give a notice to the FMA.
4: A notice under subsection (3)
a: the name of the employer; and
b: the amounts of compulsory employer contributions unpaid; and
c: the employer’s name, address, and tax file number (if known); and
d: the relevant employees to whom the failure to pay relates and their tax file numbers and addresses; and
e: the pay periods and relevant amounts for the employees to whom the failure to pay relates; and
f: other information required by the FMA.
5: If the employer pays an amount of compulsory employer contribution remedying a failure to pay that was notified to the FMA under subsection (3) 2006 No 40 s 101H as at October 2011
141: Failure to pay: FMA's duties
1: If the FMA receives a notice under section 140(3)
2: The FMA may use any power (with necessary modifications for complying superannuation funds) that the FMA has in respect of KiwiSaver schemes in the performance of the duty to decide imposed by subsection (1)
3: As soon as practicable, the FMA must give a notice to the employer showing the information described in subsection (4)
4: A notice under subsection (3)
a: require the payment of the amount (the liable amount subsection (1)
b: specify the relevant calendar months and related amounts; and
c: specify that the employer must pay the liable amount within 28 days after the notice is given; and
d: specify the employer's name, address, and tax file number (if known); and
e: specify the relevant employees to whom the failure to pay relates and their tax file numbers and addresses; and
f: specify the pay periods and relevant amounts for the employees to whom the failure to pay relates; and
g: inform the employer that failure to comply with the notice will result in the Commissioner receiving notice of the failure to comply; and
h: show other information required by the Commissioner.
5: If the employer does not pay the liable amount in the period specified in subsection (4)(c) subsection (1) section 156
a: give to the Commissioner a notice showing the information described in subsection (6)
b: send to the provider a copy of the notice.
6: A notice under subsection (5)
a: state that the employer has failed to comply with notices under section 140(2) subsection (3)
b: show the information described in subsection (4)
c: specify the extent to which an amount of compulsory employer contributions remains unpaid for the liable amount; and
d: specify the relevant employees to whom the unpaid amounts relate and their tax file numbers and addresses; and
e: specify the pay periods and relevant amounts for the employees to whom the unpaid amounts relate. 2006 No 40 s 101I as at October 2011
142: Failure to pay: Commissioner
1: If the Commissioner receives a notice under section 141(5) section 141(5)
2: The Commissioner must send the employer a notice of the amount due and payable, and the due date, specified in subsection (1) 2006 No 40 s 101J as at October 2011
143: Recovered amounts
An amount of compulsory employer contribution for an employee's complying superannuation fund that is received by the FMA or the Commissioner by virtue of subpart 3A of Part 3 or this subpart must be paid by them to the relevant provider. The relevant amount of compulsory employer contributions remaining unpaid for the relevant liable amount is consequentially reduced. 2006 No 40 s 101K as at October 2011
144: Reduction of scheme insurance upon transfer out of complying superannuation fund
1: This section applies to a complying superannuation fund ( scheme A
a: scheme A provides or facilitates the provision of insurance (the scheme insurance person
b: the benefit of the scheme insurance is calculated by reference to contributions for the person held by a complying superannuation fund (the contributions
c: an amount of contributions is transferred out of the complying superannuation fund to a complying superannuation fund or KiwiSaver scheme (other than scheme A).
2: A term is implied into the trust deed of scheme A. That term must have the effect of allowing the benefit of the person's scheme insurance to be reduced in proportion to the amount of contributions transferred out of the complying superannuation fund to a complying superannuation fund or KiwiSaver scheme (other than scheme A). 1989 No 10 s 9D
145: Revocation of approval of complying superannuation funds
1: The FMA may revoke the approval of a scheme as a complying superannuation fund if—
a: the FMA is satisfied that the scheme no longer meets the requirements in subsection (2)
b: the manager of the scheme makes an application for revocation.
2: The requirements are that—
a: the complying superannuation fund section of the scheme and any relevant participation agreement must contain rules that subject the following to complying fund rules (as defined in section YA 1 of the Income Tax Act 2007):
i: relevant contributions:
ii: returns on relevant contributions:
iii: relevant benefits; and
b: the scheme must have at least 20 members, treating all interests in the scheme or account held by associated persons within the meaning of section YA 1 of the Income Tax Act 2007 as being held by 1 person; and
c: the fund must have rules that meet all the requirements set out in Schedule 28 of the Income Tax Act 2007 (requirements for complying fund rules) and do not detract from those requirements.
3: The FMA must not exercise a power under subsection (1)(a)
a: the FMA gives the manager of the scheme no less than 10 working days' written notice of the following matters before it exercises the power:
i: that the FMA may exercise the power or refuse the application (as the case may be); and
ii: the reasons why it may do so; and
b: the FMA gives the manager or the manager's representative an opportunity to make written submissions on the matter within that notice period.
4: The FMA must, as soon as practicable after revoking the approval, give notice to—
a: the manager of the scheme; and
b: the Registrar of Financial Service Providers, for the purpose of updating the register of managed investment schemes; and
c: any person who originally applied for approval under section 34 of the Superannuation Schemes Act 1989; and
d: the Commissioner.
5: The manager of a scheme who is notified that approval is revoked must immediately—
a: give notice of that revocation to each member who may be affected, and to their employers; and
b: give notice to the Commissioner of each member who may be affected, and of their employers.
6: Each of those notices must specify an effective revocation date. 1989 No 10 ss 35, 36
4: Exempt employers
146: Effect of being exempt employer and outline of subpart
1: A person who starts new employment with an exempt employer is exempt from the automatic enrolment rules.
2: For the avoidance of doubt, subsection (1)
a: does not prevent an employee of an exempt employer from opting in under subpart 1 of Part 2
b: does not prevent a person who is already a member of a KiwiSaver scheme from becoming liable for automatic deduction of contributions from the salary or wages paid in respect of employment with an exempt employer under section 15(1)(a)(ii) or 36(1)(a)(ii).
3: This subpart contains rules relating to exempt employers (as approved under section 30 before its repeal by the Financial Markets Conduct Act 2013) as follows:
a: the rules that apply to exempt employers:
b: the rules relating to revocation of approval of exempt employers.
4: These rules are in addition to rules elsewhere in this Act that apply to exempt employers. 2006 No 40 s 24 as at October 2011
147: Eligibility to continue to be exempt employer
1: An employer is eligible to continue to be an exempt employer if the FMA is satisfied that the employer provides access to a superannuation scheme or workplace savings scheme for its employees that complies with the following rules:
a: every person who becomes a permanent employee (including a part-time employee) of that employer, and who is aged 18 or over but less than the New Zealand superannuation qualification age, must be eligible, in practice, at the time when the person so becomes an employee,—
i: to become a member of the scheme; and
ii: to transfer to the scheme the member’s accumulation in relation to other superannuation schemes or workplace savings schemes (to the extent that transfers are available from those other schemes); and
b: the trust deed of the scheme must have the effect that each member who satisfies the scheme’s requirements for a withdrawal benefit, and who elects to withdraw from membership of the scheme, may transfer the member’s accumulation to another superannuation scheme, workplace savings scheme, or KiwiSaver scheme (to the extent that transfers are available to those other schemes); and
c: the trust deed of the scheme must provide for an amount equal to at least 4% of annual gross base salary or wages to be contributed to, or otherwise credited within, the scheme in respect of each person who becomes a permanent employee of that employer and a member of the scheme.
2: However, subsection (1)(c)
a: to the extent that an employee is, in accordance with the terms of the scheme, temporarily relieved from contributions at that rate (for example, in the event of financial hardship); or
b: if the scheme is a defined benefit scheme of a type that does not satisfy the 4% minimum amount rule in subsection (1)(c) section 148
3: In this section,— defined benefit scheme section 6(1) permanent employees
a: who are not employed in temporary employment (as described in section 12); and
b: to whom the automatic enrolment rules would apply, but for the application of this section. 2006 No 40 s 25 as at October 2011
148: How 4% minimum amount may be calculated for exempt employer defined contribution schemes
1: For the purposes of section 147(1)(c)
a: the minimum amount required by section 147(1)(c)
i: entirely of contributions by the employee; or
ii: entirely of contributions by an employer; or
iii: partially of contributions by the employee and partially of contributions by an employer; and
b: the minimum amount required by section 147(1)(c)
i: the minimum prescribed amount that the employee must contribute:
ii: the maximum prescribed amount that the employer would be required to contribute if the member were to contribute the maximum prescribed amount:
c: any amount contributed to the scheme by an employer in respect of an employee does not count towards the minimum amount required by section 147(1)(c)
i: the employee is legally entitled to require the employer to contribute that amount on his or her behalf; and
ii: the trust deed of the scheme provides for the minimum amount required by section 147(1)(c)
d: any amount contributed to the scheme by an employer in respect of an employee must be calculated, for the purposes of the minimum amount required by section 147(1)(c)
2: Subsection (1)(b) does not limit subsection (1)(c) or (d). Example
Company A provides access to a superannuation scheme for its employees. The trust deed provides that employees, if they decide to become members, must contribute at either 1% or 3% of annual gross base salary. The employer is obliged to match the employee’s contributions (eg, if employee contributes 1%, the company must contribute 1%). The scheme complies with the rule as to the 4% minimum contribution as follows: The following table is small in size and has 2 columns with content but no headings. Minimum amount employee member must contribute 1% Maximum amount that employer must contribute in respect of employee member 3% 4% 2006 No 40 s 26 as at October 2011
149: Exempt employers who provide access to more than 1 scheme
An employer who provides access to more than 1 superannuation scheme or workplace savings scheme for its employees is eligible to continue to be an exempt employer if the FMA is satisfied that, if all of those schemes were considered as a whole (as if they were 1 scheme), the rules in section 147 2006 No 40 s 27 as at October 2011
150: Exempt employers who have schemes established under master trusts
An employer who provides access to a superannuation scheme or workplace savings scheme for its employees that is established under a master trust is eligible to continue to be an exempt employer if the FMA is satisfied that the rules in section 147
a: the master trust in so far as it relates to the employer’s scheme; and
b: the participation agreement executed by the employer in relation to the membership of the employer’s employees in the scheme; and
c: anything else that the FMA decides is relevant to evidencing compliance with the rules in section 147 2006 No 40 s 28 as at October 2011
151: Employers may apply to succeed to former employer's exempt employer status
1: A person may make an application to the FMA for approval to succeed to an exempt employer's exempt employer status if the person is a succeeding employer for that exempt employer.
2: The application must be accompanied by—
a: information that satisfies the FMA that the rules in section 147 section 149 or 150
b: the names, addresses, and tax file numbers of each employer in respect of whom the application is made; and
c: if the application is made in respect of an employer that is part of a group of companies, any details of the names, addresses, tax file numbers, and payroll arrangements of any other members of the group that the FMA may request.
3: In this section, succeeding employer 2006 No 40 s 29 as at October 2011
152: How applications to succeed to former employer's exempt employer status must be dealt with
1: The FMA must, within 20 working days after receiving an application made under section 151(1) section 151(2)
a: consider whether the FMA is satisfied that each employer in respect of whom the application is made complies with the rules in section 147 section 149 or 150
b: if so satisfied, approve the employer as an exempt employer and register the employer on the register of exempt employers kept under section 155
2: The FMA must—
a: give notice to the employer as soon as practicable after approving, or declining to approve, the employer as an exempt employer; and
b: specify in that notice an effective date after which an employee who starts new employment with the employer will be exempt from the automatic enrolment rules (unless those rules do not otherwise apply). 2006 No 40 s 30 as at October 2011
153: Revocation of exempt employer approval
1: The FMA may revoke an approval as an exempt employer given under this Act if—
a: the FMA is satisfied that the employer is no longer eligible to be an exempt employer because the employer no longer provides access to a scheme for its employees that complies with the rules in section 147 section 149 or 150
b: the employer makes an application for revocation.
2: The FMA must not exercise a power under subsection (1)(a)
a: the FMA gives the employer no less than 10 working days' written notice of the following matters before it exercises the power:
i: that the FMA may exercise the power or refuse the application (as the case may be); and
ii: the reasons why it may do so; and
b: the FMA gives the employer or the employer's representative an opportunity to make written submissions on the matter within that notice period.
3: The FMA must—
a: give notice to the employer as soon as practicable after revoking the approval; and
b: specify in that notice an effective revocation date after which an employee who starts new employment with the employer will be subject to the automatic enrolment rules (unless those rules do not otherwise apply); and
c: ensure that the employer is removed from the register of exempt employers kept under section 155 2006 No 40 s 31 as at October 2011
154: FMA must give notice to Commissioner of exempt employers
The FMA must give notice to the Commissioner as soon as practicable after an employer is approved under section 152 or an approval is revoked under section 153 2006 No 40 s 32 as at October 2011
155: Register of exempt employers
1: The FMA must ensure that a register is kept by the FMA or under subsection (2)
2: That register may be part of the register of managed investment schemes, in which case the Financial Markets Conduct Act 2013 applies to the keeping of the register accordingly.
5: Miscellaneous
156: Right of appeal against certain decisions of FMA
1: A person affected by a decision of the FMA under any of the following provisions may appeal against the decision to the High Court:
a: section 141
b: section 145
c: section 152
d: section 153
2: A decision against which an appeal is lodged under this section continues in force unless the High Court orders otherwise. 2006 No 40 s 186 as at October 2011
157: Sharing of information and documents with Commissioner for purpose of administering KiwiSaver schemes
1: The FMA may provide to the Commissioner any information, or a copy of any document, that the FMA—
a: holds in relation to the performance or exercise of the FMA’s functions, powers, or duties under this Act or in connection with 1 or more KiwiSaver schemes or complying superannuation funds under this Act or any other enactment; and
b: considers may assist the Commissioner in the performance or exercise of the Commissioner's functions, powers, or duties under this Act or in connection with 1 or more KiwiSaver schemes or complying superannuation funds under this Act or any other enactment.
2: The FMA may use any information, or a copy of any document, provided to it by the Commissioner under any enactment in the FMA’s performance or exercise of its functions, powers, or duties under this Act or in connection with 1 or more KiwiSaver schemes or complying superannuation funds under this Act or any other enactment.
3: This section applies despite anything to the contrary in any contract, deed, or document. 2006 No 40 s 188 as at October 2011
158: Conditions that may be imposed on providing information, documents, or evidence to Commissioner
1: The FMA may impose any conditions in relation to providing information or documents to the Commissioner (whether in compliance with a request or otherwise).
2: The FMA must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.
3: Those conditions may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993):
b: the storing of, use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided. 2006 No 40 s 189 as at October 2011
159: Annual report by FMA
1: The FMA must, within 3 months after the end of every financial year, report to the Minister on the principal matters transacted under this Act during that year.
2: Every report must be presented to the House of Representatives by the Minister as soon as practicable after it has been received by that Minister. 1989 No 10 s 28; 2006 No 40 s 194 as at October 2011
160: Offence to supply false or misleading information, etc
1: Every person commits an offence, and is liable on conviction to a fine not exceeding the amount set out in subsection (3)
2: If a body corporate commits an offence under this section, every officer of the body corporate who knowingly authorises or permits the offence also commits the offence.
3: A person who is convicted of an offence under this section is liable to a fine not exceeding $300,000. 2006 No 40 ss 198(1)(f), 199 as at October 2011
161: No Crown guarantee of KiwiSaver schemes or products
1: There is no Crown guarantee in respect of any KiwiSaver scheme or investment product of a KiwiSaver scheme.
2: Every product disclosure statement relating to an offer of interests in a KiwiSaver scheme must contain a statement to that effect. 2006 No 40 s 205 as at October 2011
162: Factual description of, or transmission of information about, KiwiSaver scheme not financial adviser service
For the avoidance of doubt, the Crown or any other person does not perform a financial adviser service for the purposes of the Financial Advisers Act 2008 if the Crown or that person—
a: supplies an information pack as required or authorised by this Act; or
b: gives a factual description to another person of the features of a KiwiSaver scheme or of KiwiSaver schemes (for example, information about admission as a member or termination of membership); or
c: gives information of the type referred to in paragraph (b)
d: acts only as an intermediary who transmits information about a KiwiSaver scheme; or
e: otherwise exercises or carries out a function, duty, or power under this Act. 2006 No 40 s 206 as at October 2011
93: Sections 205 to 206 repealed
Sections 205 to 206
94: Sections 209 and 210 and heading repealed
Sections 209 210
95: Duty of Commissioner under section 50 modified in certain cases in which section 210 applies
1: The heading to section 211 section 210 section 131
2: Section 211(1)(a) section 210(2) section 131(1)
96: Section 220 substituted
Section 220
220: Special rules about giving of product disclosure statements
Sections 217 to 219 apply to the giving or supplying of a product disclosure statement under this Act (including for the purposes of the Financial Markets Conduct Act 2013) as if it were the giving of a notice.
97: Administration of Act
1: Section 224(1) and Schedule 3
2: Section 224(2) Schedules 1 and 2 Schedule 1
98: Section 225 repealed
Section 225
99: Status of Crown contribution and fee subsidy for tax purposes
1: The heading to section 227 and fee subsidy
2: Section 227 or a fee subsidy paid in respect of a member of a KiwiSaver scheme under regulations made under section 228(n)
100: Section 228 substituted
Section 228
228: Regulations
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing fees payable to the Commissioner or the FMA in respect of any matter under this Act or the manner in which fees may be calculated:
b: prescribing the information or matters that must be included in the information packs referred to in Part 2:
c: prescribing provisions to be implied in the trust deed of a KiwiSaver scheme ( see subsection (3)
d: providing for operational matters and electronic compatibility between the Commissioner and all or any class of providers, including—
i: requiring the Commissioner and all or any class of providers to sign scheme provider agreements before registration of a scheme as a KiwiSaver scheme; and
ii: providing for the updating of those agreements after registration; and
iii: specifying the matters that may be required to be covered in all or any of those agreements:
e: prescribing requirements in relation to annual returns for the purposes of section 124
f: prescribing what must be treated as reasonable efforts for the purposes of section 128
g: prescribing the maximum number of persons that the Minister may appoint under section 132
h: specifying information that must be contained in the instrument of appointment referred to in section 132
i: providing for fees or charges that must be treated as fees for the purposes of this Act:
j: prescribing matters that are relevant to a determination or consideration as to whether a fee is unreasonable for the purposes of clause 2 of the KiwiSaver scheme rules or section 118
k: prescribing circumstances in which the purchase of an estate in land enables a withdrawal under clause 8 of the KiwiSaver scheme rules:
l: prescribing circumstances for the purposes of clause 8(3)(a) of the KiwiSaver scheme rules or prescribing who is a qualifying person for the purpose of clause 8(3)(c)(ii) of the KiwiSaver scheme rules:
m: prescribing matters that may be regarded as matters from which significant financial difficulties have arisen for the purposes of clause 11 of the KiwiSaver scheme rules:
n: recognising specific foreign superannuation schemes or classes of specific foreign superannuation schemes that are based in named countries as schemes to which funds can be transferred on permanent emigration under the provision implied by clause 14 of the KiwiSaver scheme rules:
o: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations may be made under this section for the purpose of a matter dealt with in Part 4
3: A provision prescribed for the purposes of subsection (1)(c)
a: specify the duties and powers of the supervisor of the scheme:
b: specify the duties of the manager of the scheme.
4: A provision implied in the trust deed under this section—
a: does not apply to the extent that it is inconsistent with provisions implied in the trust deed by this Act; but
b: applies despite anything to the contrary in the trust deed of the scheme; and
c: is enforceable by the manager, the supervisor, or a member of the scheme, unless the regulations provide otherwise.
101: Regulations relating to default KiwiSaver providers
1: Section 230(1)(a) section 184(2) section 137(2)
2: Section 230(1)(b)(iii) section 184(2) section 137(2)
3: Section 230(1)
ba: providing for the following matters in relation to all or any class of default members of a scheme that is subject to a terminating event under section 185:
i: requiring those default members to be reallocated and transferred to a default KiwiSaver scheme and providing the method of determining, terms of, and procedures for the reallocation and the transfer (or providing for the Minister to require or determine any of those matters by direction to the scheme provider or providing for another person or method to determine any of those matters):
ii: requiring the reallocation and transfer to be carried out in accordance with that method, those terms, and those procedures:
4: Section 230(1)(ba) subsection (3) section 185 section 138
5: Section 230(1)(c) and (d) section 185 section 138
6: Section 230(1)(c)(iii) , regulations made under paragraph (ba)
7: Section 230
1A: In this section, default members
102: Sections 231 to 237 repealed
Sections 231 to 237
103: Amendments to Schedule 1 (KiwiSaver scheme rules)
1: The Schedule 1 ss 4, 126 ss 4, 116
2: Clauses 1 to 1E
1: Application
The KiwiSaver scheme rules apply to all KiwiSaver schemes.
104: Amendments to Schedule 1 (KiwiSaver scheme rules)
Clause 2
1: The following persons must not charge a fee that is unreasonable:
a: the manager of the scheme:
b: the supervisor of the scheme:
c: the administration manager of the scheme:
d: the investment manager of the scheme:
e: any other person who charges a fee for services in relation to the provision of a KiwiSaver scheme.
2: For the purposes of subclause (1)
3: In this clause,— associated person section 12 fund related underlying fund
a: an underlying fund that is managed by the manager of the KiwiSaver scheme ( A
b: if a fund of the KiwiSaver scheme is managed as a whole by a person other than A, an underlying fund that is managed by that person or that person's associated persons underlying fund KiwiSaver fund
4: For the purposes of this clause, the terms manager supervisor administration manager investment manager
105: Amendments to Schedule 1 (KiwiSaver scheme rules)
1: Clause 4(2)
2: Clause 4(6) earlier earliest
3: Clause 4(6) ; or
c: the date that is 5 years after the day on which the member first became a member of a complying superannuation fund, if the member has become a member of the KiwiSaver scheme as a result of a transfer from a complying superannuation fund.
106: Amendments to Schedule 1 (KiwiSaver scheme rules)
Schedule 1 clause 4
4A: No external financial advantages from funds
1: The manager must ensure that the entire value, benefit, or other return derived in respect of the member's accumulation is credited to the member's accumulation and is not received as an external financial advantage.
2: In this clause, an external financial advantage
a: means any direct or indirect financial advantage payable to or derived by the member or any associated person of the member; and
b: includes the value of a reduction or an avoidance of a financial liability (such as a financial advantage obtained by using any part of the member's accumulation to offset, or to reduce the interest payable on, a loan); but
c: to avoid doubt, excludes permitted withdrawals.
3: This clause does not prevent minor financial advantages that are incidental or secondary to a KiwiSaver scheme membership from being provided to or in respect of a member, including such advantages in the form of—
a: an inducement or incentive or other form of reward to contribute to, or be a member of, the scheme; or
b: a reduction or rebate of the fees or commission payable to a financial adviser, or for financial adviser services, that takes into account the member's accumulation; or
c: rewards such as discounts on fees payable in respect of non-KiwiSaver services or products.
4: In this clause, associated person section 12
107: Amendments to Schedule 1 (KiwiSaver scheme rules)
1: Clause 8(7)(a) the member's solicitor a practitioner (within the meaning of section 6 of the Lawyers and Conveyancers Act 2006) acting on behalf of the member
2: Clause 8(7)(b) the member's solicitor that practitioner
108: Further terminology amendments to Schedule 1 (KiwiSaver scheme rules)
1: Clause 4B trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
2: The heading to clause 5 Trustees and managers Manager
3: Clause 5(1) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
4: The heading to clause 6 Trustees and managers Manager
5: Clause 6 trustee (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
6: Clause 7(1) trustees of a restricted KiwiSaver scheme and the manager of any other KiwiSaver scheme manager
7: Clause 7(1) them the manager
8: Clause 8(7)(b) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
9: Clause 8(7)(b)(ii) trustees or the manager (as the case may be) make manager makes
10: Clause 8(7)(b)(iii) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
11: Clause 9 trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
12: Clause 10
1: If the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) is reasonably satisfied that a member is suffering or is likely to suffer from significant financial hardship, the member may, on application to that manager or supervisor in accordance with clause 13, make a significant financial hardship withdrawal in accordance with this clause.
13: Clause 10(2) the trustees' approval the manager's approval (in the case of a restricted KiwiSaver scheme) or the supervisor's approval (in the case of any other KiwiSaver scheme)
14: Clause 10(3) trustees manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)
15: Clause 10(3)(b) trustees' opinion opinion of the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)
16: Clause 12(1) trustees are manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) is
17: Clause 12(1) trustees in manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) in
18: Clause 13(1) trustees manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)
19: Clause 13(2) trustees manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)
20: Clause 14(1) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
21: Clause 14(2) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) manager
22: Clause 14(2) trustees or manager (as the case may be) manager
23: Clause 14(3) trustees or manager (as the case may be) manager
24: Clause 14(3)(b) trustees or manager (as the case may be) manager
25: Clause 14(4) trustees or manager (as the case may be) manager
26: Clause 14B(1) trustees or the manager (as the case may be) manager
27: Clause 14B(2) trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme), have the trustees or the manager (as the case may be) manager, have the manager
28: Clause 14B(3) trustees or the manager (as the case may be) manager
29: Clause 14B(4) trustees or the manager (as the case may be) manager
30: Clause 14B(4)(b) trustees or the manager (as the case may be) manager
31: Clause 14B(5) trustees or the manager (as the case may be) manager
32: Clause 16(1) trustees, apply to have the trustees manager, apply to have the manager
33: Clause 16(2) trustees manager
34: If section 189
35: If section 189(3) clause 14(1) and (2)
109: Schedules 2 and 3 repealed
Schedules 2 3 Amendments to Securities Trustees and Statutory Supervisors Act 2011
110: Principal Act amended
Sections 111 to 147 Securities Trustees and Statutory Supervisors Act 2011 OIC LI 2014/325 2014-12-01 Securities Trustees and Statutory Supervisors Act 2011 See section 4(2),(3): If brought into force earlier by OIC then change the above date
111: Name of principal Act changed
1: As from the commencement of this section,—
a: the Securities Trustees and Statutory Supervisors Act 2011
b: every reference in any enactment and in any document to the Securities Trustees and Statutory Supervisors Act 2011
2: Section 1 Securities Trustees and Statutory Financial Markets
112: New section 3 substituted
Section 3
3: Purpose
1: The purpose of this Act is to protect the interests of product holders, and of residents of retirement villages, and to enhance investor confidence in financial markets and retirement villages, by—
a: requiring persons who wish to be appointed as supervisors to be capable of effectively performing the functions of supervisors; and
b: requiring supervisors to perform their functions effectively; and
c: enabling supervisors to be held accountable for any failure to perform their functions effectively.
2: That purpose is additional to the purposes of the Financial Markets Conduct Act 2013 set out in sections 3 and 4
113: Interpretation
1: The definitions of deed of participation governing document issuer issuer obligation KiwiSaver scheme KiwiSaver trustee licensee licensee obligation restricted scheme security statutory supervisor supervised issuer trust deed trustee unit trustee section 4(1)
2: Section 4(1) debt security section 8 financial product section 7 governing document
a: a governing document within the meaning of section 6(1)
b: a deed of supervision issuer
a: in respect of a debt security, means the issuer of the debt security within the meaning of section 11
b: in respect of a registered scheme, means the manager of the scheme within the meaning of section 6(1) issuer obligation
a: the governing document that relates to the product:
b: the terms of any offer of the product:
c: a court order relating to the product:
d: this Act:
e: the Financial Markets Conduct Act 2013:
f: the KiwiSaver Act 2006:
g: Part 5D of the Reserve Bank of New Zealand Act 1989 licensee
a: means a supervisor that holds a licence; and
b: includes an FMA appointee, whether or not that appointee holds a licence licensee obligation
a: every governing document:
b: the terms of the offer of the financial product:
c: a court order relating to a supervised interest:
d: this Act:
e: the Financial Markets Conduct Act 2013:
f: the KiwiSaver Act 2006:
g: Part 5D of the Reserve Bank of New Zealand Act 1989:
h: the Retirement Villages Act 2003 product holder section 6(1) registered scheme section 6(1) supervised issuer supervisor statutory supervisor
a: in relation to a debt security or registered scheme, a supervisor within the meaning of section 6(1)
b: in relation to a retirement village, a statutory supervisor as defined in section 5 of the Retirement Villages Act 2003
3: Paragraph (a) of the definition of material change of circumstances section 4(1) trustee or statutory supervisor in respect of a security supervisor in respect of a debt security or registered scheme
4: The definition of supervised interest section 4(1)
a: in relation to a supervisor of a debt security or registered scheme ( S
5: Section 4(2) Securities Act 1978 (in relation to securities) Financial Markets Conduct Act 2013 (in relation to financial products)
114: Heading to Part 2
The heading to Part 2 trustees and statutory
115: Heading to subpart 1 of Part 2
The heading to subpart 1 trustees and statutory
116: New section 6 substituted
Section 6
6: Supervisor must be licensed
1: A supervisor in respect of a debt security must hold a licence that covers supervision of the security.
2: A supervisor in respect of a registered scheme must hold a licence that covers supervision of the scheme.
3: A statutory supervisor in respect of a retirement village must hold a licence that covers supervision of the retirement village.
4: A contravention of this section may give rise to a pecuniary penalty under section 41
117: New section 7 substituted
Section 7
7: Licensee must comply with conditions imposed on licence
A licensee must comply with—
a: every condition imposed on the licence by the FMA under section 11; and
b: every condition imposed on the licence by regulations made under this Act (if any).
118: New section 8 substituted
Section 8
8: Prohibition on holding out
1: A person must not represent that the person is licensed to be a supervisor in respect of a debt security, registered scheme, or retirement village if the person does not hold a licence that covers supervision of the debt security, registered scheme, or retirement village.
2: A contravention of this section may give rise to a pecuniary penalty under section 41
119: Requirement to be licensed: exception for certain FMA appointees
Section 9 Sections 6 and 8(1) and (2) do Section 6 does
120: New section 10 substituted
Section 10
10: FMA may license supervisors
1: The FMA may license a person to be 1 or more of the following:
a: a supervisor in respect of debt securities:
b: a supervisor in respect of registered schemes:
c: a statutory supervisor in respect of retirement villages.
2: A licence may cover supervision of all debt securities, all registered schemes, all retirement villages, or any 1 or more of the following:
a: debt securities of 1 or more classes:
b: 1 or more particular issues of debt securities:
c: registered schemes of 1 or more classes:
d: 1 or more particular registered schemes:
e: retirement villages of 1 or more classes:
f: 1 or more particular retirement villages.
3: A class may be defined (to include or exclude supervision of a debt security, registered scheme, or retirement village) in any way, including, without limitation, by reference to—
a: a particular issuer or operator; or
b: a particular class of issuer or operator.
121: FMA may impose conditions on licence
1: Section 11(2)(b)
i: supervisor in respect of a particular debt security or class of debt security; or
ia: supervisor in respect of a particular registered scheme or class of registered scheme; or
2: Section 11(4) is amended by repealing paragraphs (a) and (b) and substituting the following paragraphs:
a: limiting the number of appointments as supervisor that may be held by the licensee:
b: setting a maximum value for supervised interests that are debt securities or registered schemes:
122: Information to be stated in licence
1: Section 13
b: in the case of debt securities, the debt security or debt securities the supervision of which is covered by the licence:
c: in the case of registered schemes, the scheme or schemes the supervision of which is covered by the licence:
ca: in the case of retirement villages, the retirement village or villages the supervision of which is covered by the licence:
2: Section 13(d) by the FMA under section 11 licence
123: FMA must send licence and details to licensee and others
1: Section 14(4)(a) security debt security or registered scheme
2: Section 14(4)(b) trustee of supervisor of a debt security issued by
124: Decision on application for, or to vary, licence
1: Section 16
1: The FMA may issue or vary a licence only if the FMA is satisfied that, having regard to any conditions imposed on the licence, the applicant is capable of effectively performing (or will, after the variation, be capable of effectively performing)—
a: the functions of a supervisor in respect of debt securities or registered schemes the supervision of which is covered by the licence:
b: the functions of a statutory supervisor in respect of retirement villages the supervision of which is covered by the licence.
2: Section 16(2)
c: in the case of an applicant for a licence that covers supervision of a debt security or a registered scheme, the applicant is, or will be, registered under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 on and from commencing to perform the functions of a supervisor:
3: Section 16(2)(d) supervision of covers
4: Section 16(3)(e)
i: in the case of a licence relating to debt securities or registered schemes, issuers of those debt securities or of managed investment products in those schemes comply with the issuer obligations; and
5: Section 16(3)
i: other prescribed matters that relate to the applicant, to debt securities, registered schemes, or retirement villages the supervision of which is covered by the licence, and to issuers or operators covered by the licence:
125: Application to cancel licence
Section 17(2) trustee or statutory
126: Notice, consultation, and submissions concerning decision under section 16(1)
Section 18(1)(a) and (b) supervision of covers
127: Appeal to High Court against FMA's decision on application
Section 19
2: If a supervisor in respect of a debt security, registered scheme, or retirement village lodges an appeal against a decision not to issue a new licence that covers supervision of the debt security, scheme, or retirement village, the court may extend the validity of the supervisor's current licence, to the extent that it covers supervision of the debt security, scheme, or retirement village, until the appeal has been determined or withdrawn.
128: Heading above section 20 amended
The heading above section 20 and temporary appointment powers for expiries and other vacancies
129: Effect of expiry of licence
Section 20(1) trustee or statutory
130: Licensee must apply for new licence or notify issuer or operator before licence expires
Section 21
1: A licensee appointed as a supervisor in respect of a debt security, registered scheme, or retirement village must, between 9 and 12 months before the expiry date of the licence,—
a: make an application under section 15 for a new licence that covers supervision of that debt security, scheme, or retirement village; or
b: notify the issuer of the debt security or managed investment products in the scheme or the operator of that retirement village (as the case may be) and the FMA, in writing, that the licensee does not intend to make the application referred to in paragraph (a)
131: Rejection of application for new licence: FMA may replace existing appointee
1: Section 22 FMA may make temporary appointment
2: Section 22
1: This section applies if—
a: all of the following are satisfied in relation to a supervisor in respect of a debt security or registered scheme or a statutory supervisor in respect of a retirement village (the existing appointee
i: the FMA rejects an application by the existing appointee for a new licence that covers supervision of the debt security, scheme, or retirement village; and
ii: the existing appointee no longer holds a licence that covers supervision of the debt security, registered scheme, or retirement village; and
iii: the existing appointee has not been replaced; or
b: the existing appointee wishes, at any time, to resign, ceases to carry on business, refuses to act as a supervisor, or is for any reason incapable of acting as a supervisor and the existing appointee has not been replaced; or
c: a debt security, a registered scheme, or a retirement village does not, for any reason, have a supervisor.
2: The FMA may,—
a: in the case of subsection (1)(a) or (b)
b: in any case, appoint a person (the FMA appointee
c: if the FMA considers it necessary or desirable in the circumstances, reappoint the FMA appointee (as an FMA appointee) to the position of supervisor of the debt security, registered scheme, or retirement village for a further period that the FMA thinks fit (and a reappointment under this paragraph may be made on 1 or more occasions).
3: Section 22(3) (2)(b) (2)(b) or (c)
4: Section 22
3A: The FMA's ability to set preconditions on requests to it under subsection (1)(b)
a: it is appropriate for the replacement of the existing appointee to be done under this section rather than by means of another power or process; and
b: the FMA appointee’s costs and charges (including for any appointment on a continuing basis referred to in subsection (9)(b)), and any costs of the FMA in connection with the appointment, will be met by the issuer or operator, under subsection (5)
c: a suitable bond has been, or will be, paid to secure—
i: the performance of any indemnity or other obligation in connection with the costs or changes referred to in paragraph (b)
ii: compliance with any other preconditions.
5: Section 22(4) of the security, or the operator of the retirement village, or the operator
6: Section 22
5: The issuer or operator must reimburse the FMA for—
a: the FMA appointee's costs and charges that are paid by the FMA; and
b: any costs of the FMA in connection with the appointment.
5A: An amount payable under subsection (5)
7: Section 22(6) under which the existing appointee was appointed relating to the debt security, registered scheme, or retirement village
8: Section 22(7)(b) of the security of the debt security or managed investment product
9: Section 22(9) Before the end of the 6-month appointment Before the appointment of the FMA appointee under subsection (2) finally comes to an end (taking into account any reappointment under subsection (2)(c))
10: Section 22(9)
b: appoint the FMA appointee as the supervisor on a continuing basis (provided that the FMA appointee holds a licence that covers supervision of the debt security, registered scheme, or retirement village).
11: Section 22
11: If the FMA appointee does not hold a licence, the FMA appointee must, for the purposes of the Financial Markets Conduct Act 2013 and the Retirement Villages Act 2003, be treated as holding a licence that covers supervision of the debt security, registered scheme, or retirement village (as the case may be).
132: Expiry of licence: issuer or operator may replace existing appointee or FMA appointee
1: The heading to section 23 Expiry of licence: issuer Issuer
2: Section 23
1: This section applies if—
a: the licence of a supervisor in respect of a debt security or registered scheme or of a statutory supervisor of a retirement village (the existing appointee
b: the existing appointee will, on the expiry of the licence, no longer hold a licence that covers supervision of the debt security, registered scheme, or retirement village.
2: For the purposes of subsection (1)(a)
a: the licensee has given notice in accordance with section 21(1)(b)
b: the FMA has given notice in accordance with section 18(3)(b) (notice that the FMA will not be issuing a new licence as proposed in the application).
3: Section 23(3) 22(2)(b) 22(2)(b) or (c)
4: Section 23
4: If the issuer of the debt security or managed investment products, or the operator of the retirement village, appoints a person (the new appointee
133: Expiry of licence: existing appointee must provide documents
1: The heading to section 24 Expiry of licence: existing Existing
2: Section 24
4: An existing appointee or an FMA appointee to whom a notice is given under subsection (1) or (2) must comply with the notice.
3: Section 24
6: A contravention of subsection (4) section 41
4: Section 24(7) existing appointee existing appointee
a: has the meaning given in section 22(1)(a) or 23(1)(a)
b: includes, in relation to an FMA appointee who is appointed in the circumstances referred to in section 22(1)(c)
134: FMA may vary licence because of material change of circumstances, etc
1: Section 30(1)(c)(iii) , 36, or 49 or 36
2: Section 30(1)(c)
iiia: fails to comply with a direction of the FMA under section 205
3: Section 30(3) a trustee or statutory supervisor in respect of securities a supervisor in respect of debt securities or registered schemes
135: FMA's powers if action plan not submitted, etc
1: Section 32(1)(c) , 36, or 49 or 36
2: Section 32(1)
ca: fails to comply with a direction of the FMA under section 205
136: Removal notice
1: Section 33
4: The removal of the existing appointee as supervisor in respect of an affected debt security or scheme, or as statutory supervisor of an affected retirement village, takes effect on the final removal date unless the existing appointee is removed from that appointment before that date (whether under section 38(1) or otherwise).
2: Section 33(5) affected person affected person
a: the issuer in respect of an affected debt security or scheme:
b: the operator of an affected retirement village
3: Section 33(5) affected security affected debt security or scheme
137: Removal notice: FMA may give direction to existing appointee
1: Section 36(1) trustee or statutory supervisor in respect of an affected security supervisor in respect of an affected debt security or scheme
2: Section 36
5: A person who refuses or fails, without reasonable excuse, to comply with a direction under subsection (1) commits an offence and is liable on conviction to a fine not exceeding $300,000.
138: Removal notice: FMA may replace existing appointee
1: Section 37(1) trustee or statutory
2: Section 37
1A: If the FMA considers it necessary or desirable in the circumstances, the FMA may reappoint the FMA appointee (as an FMA appointee) to the position of supervisor for a further period that the FMA thinks fit (and a reappointment under this subsection may be made on 1 or more occasions).
3: Section 37(2) subsection (1) subsection (1) or (1A)
4: Section 37(2) relevant issuer or operator affected person
5: Section 37
4: The affected person must reimburse the FMA for—
a: the FMA appointee's costs and charges that are paid by the FMA; and
b: any costs of the FMA in connection with the appointment.
4A: An amount payable under subsection (4)
5: The FMA appointee is bound by the terms of the governing document under which the existing appointee was appointed (subject to subsection (6)).
6: Section 37(6)(b) security debt security or managed investment products
7: Section 37(8) Before the end of the 6-month appointment Before the appointment of the FMA appointee under this section finally comes to an end (taking into account any reappointment under subsection (1A)
8: Section 37(8)
b: appoint the FMA appointee as the supervisor on a continuing basis (provided that the FMA appointee holds a licence that covers supervision of the debt security, registered scheme, or retirement village).
9: Section 37
10: If the FMA appointee does not hold a licence, the FMA appointee must, for the purposes of the Financial Markets Conduct Act 2013 and the Retirement Villages Act 2003, be treated as holding a licence that covers supervision of the debt security, registered scheme, or retirement village (as the case may be).
139: Replacement notice: affected person may replace existing appointee or FMA appointee
1: Section 38(1) trustee or statutory
2: Section 38(3) 6-month
140: Notice requiring documents: existing appointee, etc, must provide documents
1: Section 39(4)(b) and (6)(a) trustee or statutory supervisor in respect of the affected security supervisor in respect of the affected debt security or scheme
2: Section 39
5: An existing appointee, an FMA appointee, or a new appointee to whom a notice is given under any of subsections (1) to (3) must comply with the notice.
3: Section 39
7: A contravention of subsection (5) or (6) section 41
141: New heading and section 40A inserted
The following heading and section are inserted after section 40 FMA appointee's powers and duties
40A: FMA appointee has powers and duties of supervisor
1: An FMA appointee (whether appointed under section 22 or 37) has all of the powers and duties of the supervisor of the debt security, registered scheme, or retirement village that are conferred or imposed by the governing document or by law.
2: This section is subject to sections 22(7) and 37(6).
142: New section 41 substituted
Section 41
41: Pecuniary penalty orders
1: The High Court may, on application by the FMA, order a licensee or other person to pay a pecuniary penalty to the Crown if the court is satisfied that—
a: the licensee or other person has contravened section 6, 8, 24(4) or (5), or 39(5) or (6)
b: the licensee has contravened a licensee obligation.
2: In determining whether or not to make a pecuniary penalty order and (if an order is to be made) the amount of the penalty to be imposed, the court must have regard to all relevant matters, including—
a: the nature and extent of the contravention:
b: in the case of a contravention relating to a debt security or registered scheme, the likelihood, nature, and extent of any damage to the integrity or reputation of New Zealand's financial markets as a result of the contravention:
c: the nature and extent of any loss or damage suffered by product holders or residents because of the contravention:
d: the circumstances in which the contravention occurred:
e: whether or not the licensee or other person has previously contravened this Act or a licensee obligation:
f: the public benefit in encouraging prompt and honest self-reporting of breaches or possible breaches of licensee obligations:
g: any other circumstances that the court considers relevant.
3: The maximum amount of a pecuniary penalty under this section is $600,000.
4: If conduct by a person constitutes a contravention of 2 or more provisions referred to in subsection (1)
143: Compensation orders
Section 42
1: The High Court may, on application by the FMA, a product holder, or a resident, order a licensee to pay compensation to any product holder or resident (the aggrieved person
a: the licensee has contravened a licensee obligation; and
b: the aggrieved person has suffered, or is likely to suffer, loss or damage because of the contravention.
144: Part 3 repealed
Part 3
145: FMA may vary or cancel direction
Section 51(1) , 36, or 49 or 36
146: New section 52 substituted
Section 52
52: Protection for supervisor who complies with FMA's direction
1: No civil, criminal, or disciplinary proceedings may be brought against a supervisor in respect of a protected act.
2: No person may terminate the appointment of a supervisor by reason of a protected act.
3: No tribunal, body, or authority that has jurisdiction in respect of the professional conduct of a supervisor may make an order against, or do any act in relation to, the supervisor in respect of a protected act.
4: In this section, protected act 1989 No 157 s 157ZH
147: Regulations
Section 53(1)
aa: prescribing conditions that licences are subject to, including (without limitation) providing for conditions that require a licensee to accept an appointment as an FMA appointee under section 22 or 37: Transitional provisions
148: FMA may vary licences under Financial Markets Supervisors Act 2011
1: The FMA may, by written notice to a licensee, vary a licence if the FMA is satisfied that the variation is necessary or desirable in connection with the orderly implementation of the Financial Markets Conduct Act 2013
2: A power under subsection (1) may be exercised—
a: only on or before the date that is 2 years after the commencement of this section:
b: despite anything to the contrary in the principal Act.
3: The FMA may vary a licence under this section only if the FMA gives the licensee—
a: at least 10 working days' written notice of the following matters before the FMA varies the licence:
i: that the FMA may vary the licence; and
ii: the reasons why it is considering taking that action; and
b: an opportunity to make written submissions and to be heard on the matter within that notice period.
4: The notice under subsection (3) must state—
a: the FMA's reasons for varying the licence; and
b: the date on which the variation takes effect.
5: In this section and section 149 licence licensee
149: Appeal against licence decision
1: A licensee who is dissatisfied with the FMA's decision under section 148
2: A decision against which an appeal is lodged remains valid pending the determination of the appeal unless the court orders otherwise. Amendments to other enactments
150: Amendments to other enactments
The enactments specified in the Schedule OIC LI 2014/51 2014-04-01 Auditor Regulation Act 2011 Companies Act 1993 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Summary Proceedings Act 1957 Takeovers Act 1993 Section 150 brought into force on 1 April 2014 for the purposes of the items listed in SR 2014/51/3(f) OIC LI 2014/325 2014-12-01 Accident Compensation Act 2001 Airport Authorities Act 1966 Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Armed Forces Canteens Act 1948 Auditor Regulation Act 2011 Bank of New Zealand Officers' Provident Association Act 1971 Building Act 2004 Building Societies Act 1965 Charities Act 2005 Chartered Professional Engineers of New Zealand Act 2002 Children's Commissioner Act 2003 Commerce Act 1986 Companies Act 1993 Construction Contracts Act 2002 Co-operative Companies Act 1996 Crimes Act 1961 Crown Entities Act 2004 Crown Research Institutes Act 1992 Crown Retail Deposit Guarantee Scheme Act 2009 Dairy Industry Restructuring Act 2001 Defence Act 1990 Education Act 1989 Electoral Act 1993 Electricity Industry Act 2010 Energy Companies Act 1992 Estate and Gift Duties Act 1968 Films, Videos, and Publications Classification Act 1993 Finance Act (No 2) 1990 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Financial Transactions Reporting Act 1996 Friendly Societies and Credit Unions Act 1982 Goods and Services Tax Act 1985 Government Superannuation Fund Act 1956 Health and Disability Commissioner Act 1994 Health Sector (Transfers) Act 1993 Housing Restructuring and Tenancy Matters Act 1992 Human Rights Act 1993 Human Rights Amendment Act 1994 Income Tax Act 2007 Independent Police Conduct Authority Act 1988 Insolvency Act 2006 Insurance Intermediaries Act 1994 Insurance (Prudential Supervision) Act 2010 Judicature Act 1908 Lawyers and Conveyancers Act 2006 Local Government Act 2002 Local Government (Auckland Council) Act 2009 Local Government Borrowing Act 2011 Mackelvie Trust Act 1958 Māori Language Act 1987 Maori Reserved Land Amendment Act 1997 Māori Television Service (Te Aratuku Whakaata Irirangi Māori) Act 2003 Masterton Trust Lands Act 2003 Methodist Charitable and Educational Trusts Act 1911 Motor Vehicle Sales Act 2003 Museum of New Zealand Te Papa Tongarewa Act 1992 National Heart Foundation of New Zealand Empowering Act 1970 National Provident Fund Restructuring Act 1990 National Provident Fund Restructuring Amendment Act 1997 New Zealand Antarctic Institute Act 1996 New Zealand Council for Educational Research Act 1972 New Zealand Horticulture Export Authority Act 1987 New Zealand Maori Arts and Crafts Institute Act 1963 New Zealand Public Health and Disability Act 2000 New Zealand Stock Exchange Restructuring Act 2002 New Zealand Superannuation and Retirement Income Act 2001 Ombudsmen Act 1975 Personal Property Securities Act 1999 Port Companies Act 1988 Privacy Act 1993 Property Law Act 2007 Property (Relationships) Act 1976 Public Finance Act 1989 Public Trust Act 2001 Racing Act 2003 Real Estate Agents Act 2008 Receiverships Act 1993 Remuneration Authority Act 1977 Reserve Bank of New Zealand Act 1989 Retirement Villages Act 2003 Royal Society of New Zealand Act 1997 Sale and Supply of Alcohol Act 2012 Social Security Act 1964 Sports Anti-Doping Act 2006 Stamp and Cheque Duties Act 1971 State Sector Act 1988 State Sector Amendment Act 1990 St John's College Trusts Act 1972 State-Owned Enterprises Act 1986 Takeovers Act 1993 Tarawera Forest Act 1967 Tax Administration Act 1994 Trustee Act 1956 Trustee Companies Act 1967 Veterinarians Act 2005 Wellington Methodist Charitable and Educational Trusts Act 1916 Winston Churchill Memorial Trust Act 1965 Anti-Money Laundering and Countering Financing of Terrorism (Definitions) Regulations 2011 Anti-Money Laundering and Countering Financing of Terrorism (Exemptions) Regulations 2011 Building Societies Regulations 1989 Climate Change (Unit Register) Regulations 2008 Deer Industry New Zealand Regulations 2004 Electricity (Statistics) Regulations 1996 Financial Advisers (Definitions, Voluntary Authorisation, Prescribed Entities, and Exemptions) Regulations 2011 Financial Service Providers (Exemptions) Regulations 2010 Gas Governance (Compliance) Regulations 2008 Gas (Information Disclosure) Regulations 1997 Gas (Statistics) Regulations 1997 Government Superannuation Fund (Ceasing Contributions) Regulations 1995 Health Entitlement Cards Regulations 1993 Lawyers and Conveyancers Act (Lawyers: Nominee Company) Rules 2008 Overseas Investment Regulations 2005 Public Trust Regulations 2002 Real Estate Agents (Duties of Licensees) Regulations 2009 Real Estate Agents (Licensing) Regulations 2009 Reserve Bank of New Zealand (Designated Settlement System—NZCDC) Order 2010 Securities Transfer (Approval of Austraclear New Zealand Electronic Registries Interface System) Order 2010 Securities Transfer (Approval of FASTER System) Order 2001 Securities Transfer (Approval of System for Electronic Transfer of Securities on Australian Stock Exchange) Order 1997 Social Security (Income and Cash Assets Exemptions) Regulations 2011 Social Security (Long-term Residential Care) Regulations 2005 Social Security (Temporary Additional Support) Regulations 2005 Trustee Companies (Group Investment Funds: Disclosure of Expenses and Management Fees) Regulations 2003 Financial Transactions Reporting Act 1996, insertion of new section 3(1)(h) is not yet in force. (see amends-note below which comes into force 2017-04-01 or earlier by OIC) 2017-04-01 Financial Transactions Reporting Act 1996 Financial Transactions Reporting Act 1996, insertion of new section 3(1)(h) is not yet in force.