New Zealand: New Zealand Regulatory Update - Part 1

Last Updated: 20 December 2010
Article by Tracey Cross, Alasdair McBeth and Rachel Taylor
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PIE & NON-PIE FUNDS

There have been no further tax changes relating to Portfolio Investment Entity (PIE) and non-PIE funds of any note since the enactment of the Taxation (Budget Measures) Act 2010 and the Taxation (Annual Rates, Trans Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 in September this year.

REGISTRATION OF FINANCIAL INSTITUTIONS & DISPUTE RESOLUTION

The Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2010 (the Act) amends the 2008 version of the Act. Significant changes include:

  • The introduction of a wholesale/retail distinction. Persons who provide financial services to wholesale clients only are exempted from the requirement to join a dispute resolution scheme, but still need to be registered (unless acting on behalf of an entity that is registered).
  • Employers are exempted from the Act so far as they provide services for their employees to enable them to join superannuation or KiwiSaver schemes in which the employer participates for the benefit of its employees.
  • A change in the territorial scope of the Act. The Act will now apply to anyone ordinarily resident in New Zealand or who has a place of business in New Zealand regardless of where the financial service is provided. To date, Financial Services Complaints Limited, the Insurance and Savings Ombudsman the Banking Ombudsman and Financial Dispute Resolution (the government's reserve scheme) have been approved as dispute resolution schemes under the Act.

The new Financial Service Providers Register opened on 16 August 2010. All financial service providers (other than where an exemption applies) must be registered by 1 December 2010 and all financial advisers must be registered by 31 March 2011.

All issuers to the public are caught (unless exempted) and the Act will capture equity issuers, including those issuing under dividend reinvestment plans and under certain option schemes.

Fee and levy regulations released

  • The Financial Service Providers (Fee and Levy) Regulations 2010 were passed in August and prescribe the following fees and levy:
  • Application fee to be registered as a financial service provider: $350 plus $39.38 for a criminal record check of the applicant (unless waived by the Registrar). When the applicant is a body corporate or unincorporated body, the charge of $39.38 is multiplied by the number of controlling owners, directors and senior managers of the applicant or provider.
  • Annual confirmation fee: $60 plus criminal record check fee as above (unless waived by the Registrar).
  • Annual Dispute Resolution Scheme levy: $30.

The Registrar has the discretion to determine whether the criminal record check is necessary.

Cabinet decisions on regulations

A cabinet paper was released on 18 October 2010 seeking policy approval for the development of various regulations under the Financial Service Providers Act (FSPA) and the Financial Advisers Act (FAA), and these regulations have now been released, as per the Financial Service Providers (Exemptions) Regulations 2010. In respect of the FSPA, the following exemptions are covered by the regulations:

  • exemption for directors of promoters
  • exemption for financial services provided to related entities
  • exemption for sole adviser practice
  • exemption for individual trustees
  • exemption for loyalty schemes
  • exemption for gift cards and other gift facilities
  • exemption for credit provided, on an interim basis, by non-financial service businesses
  • exemption for Lloyd's underwriters
  • exemption for individual members of angel organisations
  • exemption for New Zealand Police
  • exemption for National Provident Fund and Annuitas Management Limited
  • exemption for low-value non-cash payment facilities.

FINANCIAL ADVISER REGIME

The Financial Advisers Amendment Act 2010 (amending the Financial Advisers Act 2008) fundamentally altered the scope of the financial advisers regime. Significant changes to the regime include:

  • Definition of financial advice: A narrower definition that omits 'guidance' and specifically states that certain activities are not financial advice.
  • Definition of financial adviser service: Under the refined definition, a financial adviser service is provided where, in the ordinary course of business, financial advice is given or a discretionary investment management service or investment planning service is provided.

A person will be providing a discretionary investment management service where (acting on the authority of the client) they decide which financial products to acquire or dispose of on behalf of a client, even if they have to consult with that client prior to making a decision.

The concept of 'an investment planning service' replaces the former 'financial planning service', the earlier definition criticised as being too wide. The new definition now covers a person designing, or offering to design, a plan for a client based on an analysis of the client's current and future overall financial situation, investment needs and future investment goals, where the plan includes one or more recommendations or opinions on how to realise those goals.

Those who provide guidance on the procedure for acquiring or disposing of a financial product or who pass on financial advice are excluded from the regime.

  • Broad exclusion for incidental service: Services that are an incidental part of another business that is not a financial service are excluded from the regime. Services are incidental if they facilitate the carrying out of another business or are ancillary to another business.
  • Categorisation of products: Several products have been re-categorised. Of note is the replacement of 'estate or interest in land' with 'land investment product' and changes to the categorisation of insurance and cash/term PIEs (such products yet to be defined by regulation).
  • Wholesale/retail distinction: Persons who advise wholesale clients will not be required to be authorised, comply with the Code, or make disclosure (but will still be subject to general conduct requirements). The definition of 'wholesale client' is very broad. As part of the wholesale carve out, clients will be regarded as 'eligible investors' if they certify in writing that they have sufficient knowledge, skills or experience in financial matters to assess the value and risks of the financial products and the merits of services provided, and that they understand the consequences of certifying themselves as an eligible investor. Clients who would otherwise be classified as a wholesale client can opt out of being a wholesale client and will be regarded as retail clients entitled to the protections under the regime.
  • Class versus personalised service: Adviser obligations have been reduced by the introduction of the concepts of 'personalised service' and 'class service'.

A financial adviser service is 'personalised' if the adviser can identify the client and either the adviser has taken into account that client's particular financial situation or goals, or the client would reasonably expect the adviser to have taken them into account. Persons providing a nonpersonalised service (or a 'class service') will have lesser obligations to satisfy under the regime, although it should be noted that such obligations are yet to be confirmed by regulation.

  • QFE model: Groups of entities will now be able to operate under the umbrella of a single Qualifying Financial Entity (QFE), where each partner entity is jointly and severally liable for members of the QFE group. QFEs can also seek to have one or more entities approved by the Commission as 'associated entities' of the QFE.

An individual cannot be the nominated representative of more than one QFE (unless the QFEs are related bodies corporate).

  • Broking services: The broking services provisions remain largely unchanged from the Supplementary Order Paper. Broking services are defined as the receipt, holding, payment or transfer of client money or client property by a person acting as an intermediary for a client. Brokers face conduct and disclosure obligations.
  • Powers: The Securities Commission has enhanced powers to monitor and enforce the FAA.
  • Scope: The regime applies to financial adviser services or broking services received by a client in New Zealand regardless of where the provider is resident, incorporated or carries on business; and services received by a client outside of New Zealand if provided by a person ordinarily resident/incorporated/carrying on business in New Zealand.

Further regulations are expected any time, including in respect of disclosure and exemptions.

Code of Professional Conduct for Authorised Financial Advisers

The minister approved the Code on 20 September 2010.

Financial adviser fees regulations released

The Financial Advisers (Fees) Regulations 2010 were passed in August and prescribe the following fees:

  • Authorised Financial Adviser (AFA) application fee: $1,120
  • AFA renewal of authorisation fee: $560
  • QFE application fee: $4,780
  • QFE renewal of status: $4,500.

Each partner entity in a QFE group must pay the relevant fee. Associated entities, however, are exempt.

Financial Advice Regulations

Cabinet has approved regulations that set out the form and content of disclosure statements that need to be provided by financial advisers from 1 July 2011. These regulations apply to AFAs, registered advisers and QFE Advisers.

Cabinet decisions on regulations

A Cabinet paper was released on 18 October 2010 seeking policy approval for the development of various regulations under the FSPA and FAA. In respect of the FAA, the following proposals have been approved by Cabinet:

  • Definitions for certain undefined terms in the FAA. Proposals include:
    • The definition of land investment product should be focused on complex land investment schemes.
    • Credit union share (subject to a statutory 60-day withholding period) should be categorised as category two.
    • Investment-linked contract of insurance should be a contract aimed at generating a return (as opposed to the mitigation of risk).
    • Unit in a cash or term PIE should be defined to cover PIEs that are invested entirely in category two term or call securities issued by the issuer of the cash or term PIE.
  • Exemption from the FAA for superannuation advice provided to employees of related companies.
  • Exemption for sole traders who are financial advisers from the obligation to register their company (but their company must belong to a dispute resolution scheme).standard conditions

Standard conditions

On 28 October 2010 the Securities Commission released standard conditions for AFAs. Standard conditions for QFEs are yet to be released.

ANTI-MONEY LAUNDERING

On 9 August 2010 a Regulations and Codes of Practice consultation document and a Ministerial Exemptions Policy were released.

The consultation document follows on from the Regulations discussion document released earlier in 2010 and contains proposals regarding:

  • the application of the Anti-Money Laundering and Counter-Terrorism (AML/CFT) Act (exemptions and threshold values)
  • customer due diligence requirements (identity verification and document certification)
  • factors to be considered when completing a risk assessment
  • third-party reliance
  • designated business groups
  • annual reporting requirements.

Submissions on the consultation document closed on 6 September 2010.

The Ministerial Exemptions Policy sets out the regulation-making powers of the Minister and the Governor-General and how applications for exemptions will be assessed.

The AML/CFT co-ordination committee (Securities Commission, Reserve Bank, Internal Affairs, Police, Customs and Justice) are continuing to work on implementation and are meeting on a monthly basis.

All affected entities are recommended to continue to assess business risk in preparation for submitting their risk assessments.

The implementation period is likely to be two years from the release of the regulations (given the minister's recent announcements regarding the slowing down in the AML implementation process to enable providers to deal with the current amount of regulation being introduced, the AML regime is likely to be fully in force by late 2013).

SECURITIES ACT / REGULATIONS

The Ministry of Economic Development (MED) released a discussion paper on the Review of Securities Law in June 2010, with submissions closing on 20 August 2010.

The paper details the proposals to substantially revise New Zealand's securities laws and update the regulatory regime.

The following is proposed:

  • Defining regulated financial products: The new Act proposes to cover four specific categories of financial products, with economic substance considered over form: equity, debt, collective investment schemes and derivatives. The focus of the amendments will be on investment products designed to create an investment return or to hedge risk. The Financial Markets Authority (FMA) has discretion to designate financial products into one of the categories or to reclassify a product.
  • Offers to exempt investors: A new set of exemptions for offers to investors is proposed where the full regulatory requirements of the Securities Act are deemed inappropriate (eg investment businesses and sophisticated investors). The objective is to provide certainty in respect of such exemptions, with categories widened and tests simplified.
  • Disclosure: A single Product Disclosure Statement (PDS) is proposed, which would be designed specifically for certain financial products. Each PDS would be split into two sections: a two page summary of the nature of the investment and its risks followed by additional disclosures necessary for an investor to make a decision. Issuers will be required to set a simple risk rating with additional disclosures registered on the financial register of securities.
  • Collective investment schemes: A new standard framework for all collective investment schemes is proposed, regardless of legal form.
  • Other matters: Other matters discussed include the treatment of unregistered and lightly regulated securities exchanges and expanding the powers of the FMA.

The full paper is available at: http://www.med.govt.nz/upload/73375/discussion-document.pdf

The new Securities Act is expected in 2012.

The Securities Regulations 2009 are now in force.

TRANS-TASMAN MUTUAL RECOGNITION

The general Securities Act (Australia Registered Managed Investment Schemes) Exemption Notice previously relied on by many Australian issuers expired on 30 September 2010. Any issuer of an Australian registered managed investment scheme will need to have opted into the new trans Tasman mutual recognition regime to offer securities into New Zealand, unless they are prepared to comply with New Zealand legislative requirements in this regard.

CROWN RETAIL DEPOSIT GUARANTEES

The Retail Deposit Guarantee Scheme ended on 12 October 2010, but under the Securities Act (Crown Retail Deposit Guarantee Schemes) Exemption Notice 2010 it has been extended to 31 December 2011 on the basis of stricter criteria (primarily credit rating). Deposits with institutions approved for guarantees under the previous exemption notice are no longer guaranteed by the Crown unless the deposit-taking institution has been approved for the Extended Retail Deposit Guarantee Scheme.

A new form of guarantee deed applies from 1 January 2010 for those entities continuing to offer securities subject to this guarantee. Under the terms of the Extended Retail Deposit Guarantee Scheme, eligible depositors will be repaid up to a maximum of $250,000 per non-bank institution, if a participating institution defaults on its obligations. Only deposit-taking institutions with a credit rating of BB or higher are eligible for the extended scheme.

Current participants in the extended scheme include Canterbury Building Society, Equitable Mortgages Limited, Fisher & Paykel Finance Limited, MARAC Finance Limited, PGG Wrightson Finance Limited, Southern Cross Building Society and Wairarapa Building Society.

A further series of questions and answers on the Retail Deposit Guarantee Scheme have been posted on the Treasury's website. These include information on who is covered by the scheme, how the scheme works, claims and defaults and changes to the scheme, as well as specific information tailored for institutions and trusts. The questions and answers are available here: http://www.treasury.govt.nz/economy/guarantee/retail/qanda

South Canterbury Finance

The government has paid out $1.7 billion to cover investor losses to Trustees Executors Limited, which oversees the interests of South Canterbury's 35,000 investors. This decision covers all investors, including some that would be ineligible for payment under the guarantee under criteria relating to citizenship and tax residency.

Treasury Secretary Gabriel Makhlouf stated that while this will incur an upfront cost, it is cheaper overall for the Crown because it facilitates the immediate payout of depositors and avoids the need for the Crown to make future interest payments.

On 15 October 2010, the Treasury published documents relating to South Canterbury Finance's participation in the recently expired Retail Deposit Guarantee Scheme. This information was released in response to Official Information Act requests received by the Treasury and the Minister of Finance. The documents are available at http://www.treasury.govt.nz/publications/informationreleases/scf

REGULATION OF NON-BANK DEPOSIT TAKERS

On 8 October 2010, the Reserve Bank of New Zealand (RBNZ) released a consultation paper seeking comment on policy proposals for a second Bill to complete the legislative framework for the RBNZ's regulation of the non-bank deposit takers sector. The proposals would give the RBNZ a number of powers covering licensing, fit and proper person requirements for directors and senior office holders of non-bank deposit takers, the ability to place restrictions on changes of ownership, as well as distress and failure management.

Submissions for the consultation paper closed on 5 November 2010. The RBNZ will use submissions to develop policy recommendations for Cabinet to consider, which are expected to lead to the second Bill being introduced to parliament in the early part of 2011.

On 7 October 2010, the Deposit Takers (Liquidity Requirements) Regulations 2010 were gazetted. These regulations require quantitative liquidity requirements to be included in trust deeds. These were followed by the release of liquidity guidelines for non-bank deposit takers on 29 October 2010. The non-binding guidelines complement the Liquidity Requirements and are intended to help the sector develop quantitative liquidity requirements that are appropriate for a non-bank deposit taker to meet their obligations under the regulations.

From 1 September 2009, non-bank deposit takers were required to comply with risk management programme guidelines, and from 1 March 2010, long-term issuer credit ratings were required.

The Deposit Takers (Credit Ratings, Capital Ratios and Related Party Exposures) Regulations 2010 were released in June 2010. The Regulations:

  • specify the type of credit rating that a deposit taker is required to have
  • require every deposit taker and trustee to ensure that the deposit taker's trust deed includes the minimum capital ratio that the deposit taker must maintain
  • specify the minimum capital ratio that must be included in the trust deed and how the ratio must be calculated
  • declare additional classes of persons to be related parties of deposit takers
  • require every deposit taker's trust deed to include a maximum limit on aggregate exposures to related parties
  • specify the maximum limit on related party exposures included in the trust deed and how the limit must be calculated.

The Securities (Moratorium) Regulations 2009 prescribe additional disclosure for offer documents in moratorium proposals, imply terms into trust deeds and require additional reporting.

INSURANCE (PRUDENTIAL SUPERVISION) ACT

The Insurance (Prudential Supervision) Act Commencement Order (No 2) 2010 brings into force various provisions of the Insurance (Prudential Supervision) Act 2010 on 1 February 2011, including:

  • provisions requiring the licensing of insurers and transitional provisions relating to the issuing of provisional licences, including requirements for fit and proper policies and risk management programmes (licensing application requirements)
  • provisions establishing prudential supervision by the Reserve Bank
  • distress management provisions
  • provisions that enable Lloyd's to obtain a licence
  • the offence of making a false declaration or representation relating to the Act
  • restrictions on licensed insurers' constitutions
  • provisions empowering district courts to ban certain persons from participating in insurance business
  • provisions empowering the Reserve Bank to approve transfers of insurance business between insurers.

The remaining provisions of the Act will come into force at dates yet to be appointed. It is expected that the provisions relating to statutory funds will come into force in June 2011, and the requirement to be licensed will take effect on 7 March 2012.

The Act, which received royal assent on 7 September 2010, aims to promote a sound and efficient insurance sector and increase public confidence in it.

The first key compliance date under the Act for insurers to be aware of is that all insurers must indicate to the RBNZ, by completing the prescribed form, whether they intend to remain in the insurance industry or not. Forms are due by 31 December 2010, however the RBNZ has indicated it will accept forms until 5 January 2011. The form is available here: http://www.rbnz.govt.nz/finstab/nbdt/insurance/InsurerNoticeofIntention.pdf .

All insurers that carry on business in New Zealand will have to be provisionally licensed by the RBNZ by 7 March 2012 and fully licensed by 7 September 2013.

In order to get a licence, insurers must meet the requirements under the Act, including having:

"

  • a current financial strength rating
  • the ability to carry on business in a prudent manner
  • the ability to comply with prudential regulation and statutory fund provisions
  • the ability to hold and maintain a minimum amount of capital specified in an applicable solvency standard
  • a satisfactory fit and proper policy and risk management program (including appointing an actuary
  • appropriate incorporation and ownership structure, governance and financial strength.

Draft solvency standards for life insurers were released for comment on 23 August 2010.

SETTLEMENT SYSTEMS

NZX's new clearing and settlement system, the NZCDC Settlement System, was granted 'designated' status under Part 5C of the Reserve Bank of New Zealand Act on 3 September 2010, and came into effect on 6 September 2010.

The NZCDC Settlement System will be important to NZX's plans to create dairy, energy and other derivative products. Launched on 8 October 2010, NZX Dairy Futures is a global, cash-settled, exchange-traded futures product that enables participants to manage risk in the world dairy market.

In June 2010, the NZX Market Supervision gave notice to the public of amendments to its NZSX/NZDX/NZAX listing rules relating to the introduction of the NZCDC Settlement System. A copy of the amended rules can be found at www.nzx.com/market-supervision/rules/.

The Securities Markets Act (NZCDC Settlement System) Exemption Notice 2010 exempts the New Zealand Clearing and Depository Corporation Limited, NZ Clearing Limited, New Zealand Depository Limited and specified participants from the substantial security holders' disclosure obligations in sections 22 to 25 of the Securities Markets Act 1988 in respect of any relevant interests in a security under the new NZCDC settlement system.

NZX has recently signed a Memorandum of Understanding (MOU) with the RBNZ that will ensure inter-operability for customers between their systems: NZClear (formerly known as Austraclear) and New Zealand Clearing Limited, respectively. The RBNZ and NZX have also agreed to establish a joint settlements advisory council to create a unified approach to dealing with industry issues.

A policy document (Designation and Oversight of Designated Settlement Systems (DSS1)) explaining the roles and policies of the RBNZ and the Securities Commission in relation to the designation and oversight of designated settlement systems can be found on the Securities Commission website.

The application process, the application fee and information that should be submitted with an application for designation are set out in the joint regulators' Application Guidelines for Designation under Part 5C of the Reserve Bank of New Zealand Act 1989 (DSS2), also found on the Securities Commission website.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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