New Zealand: New Zealand Regulatory Update - Part 2

Last Updated: 20 December 2010
Article by Tracey Cross and Rachel Taylor
This article is part of a series: Click New Zealand Regulatory Update - Part 1 for the previous article.
Go to Part 1 of this article

TRUSTEE SUPERVISION

The Securities Trustees and Statutory Supervisors Bill received its first reading on 23 March and submissions to the Commerce Committee closed on 6 May. The Commerce Committee reported back to parliament on 19 October 2010.

The Bill removes the automatic statutory approval for the existing six trustee companies and requires all debt trustees, statutory supervisors and unit trustees to be licensed by the Securities Commission. The Securities Commission will consider a number of factors in deciding whether to grant a license, including the experience, skills and qualifications and financial resources of the applicant, together with the applicant's independence from issuers of securities covered by the licence and the applicant's governance structure. Licences will be tailored so that they fit the purpose and impose obligations that reflect the characteristics of the issuers being supervised. Ongoing monitoring will be the responsibility of the Securities Commission.

Minister of Commerce Simon Power recently announced the intention to amend the Securities Act so the manager of a retail KiwiSaver scheme is the 'issuer'. In this announcement, he also confirmed trustees of retail KiwiSaver schemes will be subject to the Bill. The licensing requirements in respect of KiwiSaver trustees will be delayed with the change to the KiwiSaver issuer to be implemented in legislation establishing the FMA.

The Select Committee recommended a number of amendments to the Bill. The maximum duration of licenses will be extended from five years to eight. A new provision provides for Regulations to be promulgated setting out guidelines for determining whether an applicant's director, senior officers and controlling owners persons are of 'good character' - one of the mandatory requirements for licensing. Other minor amendments were recommended to fine tune the operation and implementation of the regime. It is expected that this Bill will be passed into law sometime before the end of the year.

TRANS-TASMAN PORTABILITY OF RETIREMENT SAVINGS

The Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver and Remedial Matters) Bill was passed by parliament on 25 August 2010 and received royal assent on 7 September 2010. The final version of the Bill as passed is expected to be available soon. The provisions in the Bill relating to Trans-Tasman Savings Portability are expected to come into effect in early- to mid-2011. At the time of this update, no specified date can be provided as the legislation relies on equivalent enabling legislation in Australia being passed.

The Finance and Expenditure Committee (which reported back to the House on the Bill in May 2010) recommended that the Bill be passed with amendments.

Regarding the Trans Tasman portability of retirement savings, the committee recommended:

  • Reallocation or transfer back to Australia of savings if membership is declined or invalid: The Bill should be amended to refer to the 'amount transferred' rather than 'net' amounts to be paid if an individual's superannuation membership is found to be invalid. The committee also recommends amending the Bill to ensure that in situations where KiwiSaver account amounts must be transferred back to the original Australian complying scheme because the KiwiSaver enrolment is deemed invalid, an individual could nominate another superannuation scheme in Australia if their original scheme would not accept a transfer, or the scheme no longer existed.
  • Fees first deducted from New Zealand-sourced savings: Deleting the clause from the KiwiSaver scheme rules that requires fees to be first deducted from the net value of amounts not transferred from Australia.
  • Other matters: The committee considered amending the Bill to take account of concerns about the transfer of superannuation funds that exceed Australia's contribution threshold. However, the committee concluded that this issue is not of great concern at present because of the relatively small amounts in KiwiSaver accounts that may be transferred.

The committee's full report is available at: http://www.parliament.nz/NR/rdonlyres/D16AD1CE-691B-47FC-8DC3-6713AFB84D74/143038/DBSCH_SCR_4745_TaxationAnnualRatesTransTasmanSavin.pdf

KIWISAVER

MED discussion paper on periodic reporting

On 30 November 2010, the Ministry of Economic Development (MED) released a discussion paper on Periodic Reporting Regulations for Retail KiwiSaver Schemes. The paper follows a cabinet decision in April this year that KiwiSaver scheme providers should be required to periodically publish information on fees, returns and asset allocations in a prescribed manner. The paper proposes that all KiwiSaver providers be required to report on the following matters every three months:

  • fees and charges
  • fund performance and returns
  • asset allocation and portfolio holdings
  • fund manager tenure and conflicts of interest.

MED considered the possibility of using prescribed templates and standardised tables to present this reporting information.

The purpose of the paper is to elicit feedback and commentary from stakeholders that will guide the development of regulations for the prescription and form of periodic reporting.

MED is seeking public submissions on the proposal by 11 March 2011.

It is likely that periodic reporting will be mandatory from 2012-13.

KiwiSaver Act amendments

The Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver and Remedial Matters) Act 2010 (the Tax Act) is now in force. The Tax Act makes a number of technical amendments to the KiwiSaver Act 2006, including clarifying how persons under the age of 18 may enrol in a KiwiSaver scheme and allowing providers to provide annual reports by hyperlink.

Managers to become issuers of KiwiSaver schemes

The Financial Markets (Regulators and KiwiSaver) Bill has passed first reading and been referred to the Commerce Select Committee, whose report on the Bill is due in February next year. Notably, the Bill contains amendments to be made to the Securities Act 1978 in order to make the manager of a KiwiSaver scheme the issuer, rather than the trustee.

NEW ZEALAND AS A FUNDS DOMICILE

The government has announced an initiative to look at the feasibility of establishing New Zealand as an Asia-Pacific funds domicile. A private sector group called the Fund Services Development Group was formed and has submitted its report to the minister. It is understood the report is positive towards the initiative, but emphasises it is a long-term game that needs strong leadership and focus. The paper will address such things as the opportunity, regulatory requirements, tax and incentives. It is likely that it will recommend a public/private sector working group be set up to progress the initiative. Oliver Wyman was engaged as a consultant to assist the group.

Prime Minister John Key has reportedly been frustrated at the slow progress of his officials and has therefore ordered Gerry Brownlee to urgently prepare a paper to fast forward the 0% Prescribed Investor Rate (PIR) for international funds administered from New Zealand but invested overseas and with offshore investors. The 0% PIR is one of the initiatives required to bring the concept of New Zealand as a funds domicile to fruition. It is anticipated that this will be included in the November Tax Bill and passed by 1 April 2011.

FINANCIAL MARKETS AUTHORITY(NEW 'SUPER REGULATOR')

The Financial Markets (Regulators and KiwiSaver) Bill received its first reading on 23 September 2010 and was referred to the Commerce Committee, which called for submissions by 10 November 2010. Submissions have now closed and the Commerce Committee is due to report back to the House by 28 February 2011. We understand that some submissions criticise the Bill for going too far and for giving New Zealand markets a competitive disadvantage.

Amongst other things, the Bill will establish an integrated single regulator - the FMA. It is expected to be operating by April next year and will incorporate a wide range of existing regulatory powers and functions, including those of the Securities Commission and some currently performed by the Companies Office and its National Enforcement Unit.

The FMA will also have the following functions:

  • It will have the sole responsibility for enforcing securities, financial reporting and company laws.
  • It will have the broad power to exercise another person's right of action, where doing so would be 'in the public interest'. This would enable the FMA, for example, to take over and exercise investors' right to sue the directors of an issuer.
  • It will regulate and oversee trustees, auditors, directors of financial service providers and financial advisers.
  • Sharemarket operator NZX will retain the power to make and enforce its own market rules, but they will need to be approved by the FMA, which will also have powers to formulate rules.
  • The functions of NZX's NZ Markets Disciplinary Tribunal will be transferred to a new statutory rulings panel serviced by the FMA.
  • All of the functions of the Government Actuary, including KiwiSaver regulation, will be transferred to the FMA.

The Bill will bring forward some of the changes to the Securities Law regime foreshadowed in the Securities Law Review. Specifically, it provides for the establishment of a searchable electronic register of securities to contain information and documents relating to public securities offerings. It will also replace the procedure for the registration and review of prospectuses. Under the current regime, prospectuses are reviewed by the Companies Office and 'go live' on registration. This will be replaced with a regime similar to that in Australia. Prospectuses will be registered without any detailed compliance review and registration will be followed by a five-to-ten day 'stand down' period, during which no subscriptions can be accepted. This period provides the FMA with an opportunity to review the offering documentation for compliance before subscriptions are accepted and, if necessary, take further steps. Provided that no further steps are taken, subscriptions can be accepted after the expiry of the stand down period.

The Bill will also modify the KiwiSaver regime. A distinction will be introduced between employer- and industry-sponsored 'restricted' KiwiSaver schemes and other 'non-restricted' KiwiSaver Schemes, such as the default schemes. The regime for 'restricted' KiwiSaver Schemes will not change significantly from the status quo. However, there will be significant changes for 'non-restricted' KiwiSaver Schemes. The role of manager will be formalised and the respective responsibilities of manager and trustee will be enumerated. Importantly, the manager will become the 'issuer' of interests in the scheme for Securities Act purposes and so will bear the primarily responsibility for ensuring compliance with Securities Law requirements. A new Securities Act provision for Regulations to specify periodic reporting requirements will first be used to require standardised period reporting by KiwiSaver issuers. Furthermore, it is anticipated changes will be made to the Bill once the Securities Trustees and Statutory Supervisors Bill comes into force that will require trustees of 'non-restricted' KiwiSaver schemes to be licensed under that regime.

On 20 October 2010, Minister of Commerce Simon Power announced the appointment of Sean Hughes as Chief Executive designate of the FMA. Mr Hughes is an expatriate lawyer and banker currently completing a senior executive role with ASIC, the Australian securities regulator.

The Bill should be passed into law in early 2011.

CAPITAL MARKET DEVELOPMENT TASKFORCE

On 26 May 2010, Simon Power released a progress report on the government's response to the Capital Development Taskforce. The document outlines recommendations that:

  • have been delayed
  • have been fast-tracked
  • are on-track to be implemented.

The full progress report is available at: http://www.med.govt.nz/upload/72824/CMDT-April-ProgressUpdate.pdf

The taskforce report was originally issued in December. The report covers:

  • better informing of retail investors
  • improving the quality of investment products
  • improving commercialisation and start-up funding
  • freeing up private markets and expanding public markets
  • co-ordinating capital market infrastructure
  • addressing tax biases.

The minister released the government's plan for responding to the Capital Market Development Taskforce report on 18 February 2010. Some of the recommendations the government has said that it is committed to implementing are:

  • Introducing plain English into investment statements and prospectuses, with warnings on risky or complex products.
  • A more co-ordinated approach to the government's role in improving the financial literacy of New Zealanders.
  • Ensuring the duties of fund managers and supervisors are clear and enforced.
  • Considering consolidating parts of the Companies Office, Securities Commission and the NZX Disciplinary Tribunal into a new market conduct regulator.
  • Making it easier and cheaper for companies to raise capital privately by clarifying and broadening the exemptions to the Securities Act and Takeovers Act.
  • Improving risk management in the economy by supporting the development of derivatives markets in commodities and energy.

As well as steps to improve capital markets, the government has started work on a business case to develop the taskforce recommendation of establishing an Asia-Pacific financial services hub.

INVESTMENT SAVINGS AND INSURANCE ASSOCIATION (ISI)

The Investment Savings and Insurance Association (ISI) represents many investment and life insurance companies in New Zealand.

ISI is looking at addressing concerns by self-regulation rather than regulation.

New standards and guidelines that have recently been released by the ISI for its members include:

  • Proposed policy to phase-out commissions (April 2010): The proposed policy will include the discontinuance of volume-based performance bonuses or commission and ongoing renewal commissions. The policy will not be retrospective and there will be a transition period for members to comply. The ISI hopes the policy will result in consumers negotiating a fee for the service they receive, which will ensure the consumer is fully aware of the cost and how that advice will be paid for.
  • Code of Ethics and Conduct Standards (April 2010) - the Standards contain ethical standards (eg 'Members will conduct themselves with integrity and in a manner consistent with fostering and maintaining the good reputation of their industry and will refrain from any conduct that may bring discredit to their industry') and conduct standards (eg 'Members must at all times safeguard the interest of their customers provided that they do not conflict with the duties and loyalties owed to the community, as expressed by its laws').

These standards and guidelines are all available on the ISI's website at: http://www.isi.org.nz

AUDITOR OVERSIGHT

On 28 April 2010, the government announced that auditor oversight as it relates to issuer audits is to be the responsibility of the FMA.

The government believes oversight is necessary to avoid finance company audit failures and to ensure practitioners who carry out financial sector audits have the necessary skills and experience to carry out the work to a high standard. The changes will also bring New Zealand into line with international practise in this area, in order to allow New Zealand auditors to be recognised by overseas regulators.

The reforms will only affect audits of issuers of securities, along with banks, insurance companies and other entities that take deposits or hold assets for broad groups of investors.

The Auditor Regulation and External Reporting Bill is currently with the Commerce Committee, to be reported back to the House in March 2011. The auditor-related oversight functions of the FMA are likely to come into force in mid-2012.

NZ-AUSTRALIA GOVERNMENT MOU ON THECO-ORDINATION OF BUSINESS LAW

On 23 June 2010, a revised Memorandum of Understanding (MOU) on the Coordination of Business Law was signed by the governments of New Zealand and Australia, in accordance with the five-yearly review requirements of the original MOU.

The revised MOU incorporates the work programme of 27 cross-border 'outcome areas' agreed to in August 2009 by the New Zealand and Australian prime ministers, which include insolvency law, financial reporting policy, financial services policy, competition policy, business reporting, corporations law, personal property securities law, intellectual property law and consumer policy.

The governments' aims are to accelerate, deepen and widen the trans-Tasman trade and investment relationship. Anticipated benefits include improvement of the business environment in both countries, increased international competitiveness, increased national productivity and job creation.

The agreed principles to drive co-ordination efforts are:

  • People should not have to engage in processes or provide information twice.
  • Measures should deliver substantially the same outcomes.
  • Regulated occupations should operate seamlessly in each country.
  • Governments should seek economies of scale in regulation.
  • Products and services should be supplied in both jurisdictions.
  • Joint capability to influence international policy design should be strengthened.
  • Net trans-Tasman benefit should be optimised.

The MOU will be reviewed again in 2015.

CONSUMER LAW REVIEW

The Ministry of Consumer Affairs is currently undertaking a review of seven key consumer laws as part of a consumer law reform, including some areas that have not been reviewed for many years.

The legislations included in this review are:

  • the Fair Trading Act
  • the Consumer Guarantees Act
  • the Weights and Measures Act
  • the Layby Sales Act
  • the Unsolicited Goods and Services Act
  • the Door to Door Sales Act
  • the Auctioneers Act
  • aspects of the of Goods Act and the Sale of Goods Act.

The discussion document assesses each of these pieces of legislation, in particular assessing their history, purpose, ongoing relevance, whether they are up-to-date for today's consumer transactions, any gaps in the law and the overall effectiveness of the law. The full discussion document is available on the ministry's website.

The review aims to lead to:

  • principles-based consumer law, aiming to increase consumer confidence and protect reputable suppliers and consumers. Consumer law needs to be up-to-date and relevant, easily accessible, in line with international best practise, effective and enforceable
  • simplification and consolidation of the existing consumer law
  • harmonisation with Australian consumer law (where appropriate), as part of the government's agenda of a single economic market with Australia.

Submissions on the discussion document closed in July. The ministry received a total of 113 submissions from a wide variety of submitters including consumers, consumer organisations, businesses, legal and academic parties, government agencies and disputes resolution services. The ministry has observed that, based on the submissions it has received, the most favoured outcome is for there to be an enhanced Fair Trading Act, with a separate Consumer Guarantees Act and Weights and Measures Act.

The ministry is now considering all submissions it has received and has prepared a brief summary of submissions, which that is available on the ministry's website.

The ministry has also released a number of additional papers that relate to specific areas of the review, which are also available on its website:

  • unfair contract terms
  • referencing good faith in a Fair Trading Act purpose clause
  • unconscionability
  • layby sales
  • electricity and the Consumer Guarantees Act.

The next step will be for the ministry to formerly report to the Minister of Consumer Affairs on a recommended path for the reform of consumer laws.

REGULATORY RESPONSIBILITY

Submissions on the Draft Regulatory Responsibility Bill prepared by the Regulatory Responsibility Taskforce closed on 27 August 2010. There has been no further movement on the consultation process since the closing date for submissions.

The central feature of the Bill is the introduction of six principles of responsible legislation. In brief, these are that legislation (which is defined broadly but does not include local government legislation at this stage) should:

  • be consistent with the rule of law
  • not diminish personal liberty, security, freedom of choice or action or property rights except as necessary to provide for the liberty, freedom or rights of another
  • not take or impair property without the consent of the owner except in the public interest and with full compensation
  • not impose charges unless the charges are reasonable and only impose taxes through Acts of Parliament
  • provide for merits review of decisions by public bodies that affect a person's liberties, freedoms or rights
  • not be made unless those affected have been consulted, the benefits of it outweigh the costs and it is the most effective, efficient and proportionate response to the issue.

However, the Bill limits these principles by stating that incompatibility with the principles is justified to the extent it is reasonable and can be demonstrably justified in a free and democratic society.

The Bill includes four key mechanisms for ensuring compliance with the principles:

  • Ministers and chief executives of government departments must certify that any proposed new legislation is compatible with the principles and if not, why not.
  • Courts must interpret legislation consistently with the principles where possible (all new legislation following the Bill and all legislation, new and old, following the 10th anniversary of the Bill).
  • Courts have the power to declare legislation to be incompatible with the principles (all new legislation following the Bill and all legislation, new and old, following the 10th anniversary of the Bill). However, any such declaration will not affect the validity of the incompatible legislation.
  • Public entities must review all the legislation they are responsible for in order to check compatibility with the principles and publish information on these reviews.

See https://www.treasury.govt.nz/economy/regulation/rrb for more detail and a list of the consultation questions.

LOCAL AUTHORITY TEST

The establishment of a central 'bond bank' through which local government participants could collectively raise finance was one of the February 2009 Jobs Summit Top Twenty initiatives and was also recommended by the Capital Markets Development Taskforce. With the benefit of the security offered by the rating power of the participating local authorities, such an entity (now termed the 'Local Government Debt Vehicle') would be able to obtain financing on more attractive terms than is currently the case, particularly for smaller local authorities.

In July 2009, Finance Minister Bill English announced that the government was considering the concept and $5 million of capital funding was appropriated from the central government budget for the financial year 2010/11. Although no formal announcements have been made, reports indicate that the concept is progressing and that draft legislation should be expected soon, with a view to being finalised in the latter part of 2011.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 and no liability will be accepted for any losses incurred by those relying solely on this publication.

© 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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This article is part of a series: Click New Zealand Regulatory Update - Part 1 for the previous article.
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