Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698836927682.pdf (New Zealand)
2011/238 Financial Advisers (Australian Licensees) Exemption Notice 2011 Pursuant to section 148 of the Financial Advisers Act 2008, the Fi- nancial Markets Authority gives the following notice (to which is ap- pended a statement of reasons of the Financial Markets Authority).

Contents Title Commencement Expiry Interpretation Exemptions Conditions of exemptions Page 1 1 1 1 3 4 Notice Title This notice is the Financial Advisers (Australian Licensees) Exemption Notice 2011.
Commencement This notice comes into force on 1 July 2011.

Expiry This notice expires on 30 June 2013.
(1) Interpretation In this notice, unless the context otherwise requires,— Act means the Financial Advisers Act 2008 1 cl 4 Financial Advisers (Australian Licensees) Exemption Notice 2011 2011/238 ASIC means the Australian Securities and Investments Com- mission Australian licensee means a person to whom all of the fol- lowing apply: (a) the person holds a current Australian financial services licence granted by ASIC under the Corporations Act that licenses or authorises the person to provide finan- cial product advice to retail clients; and the person is in the business of providing a financial service in Australia; and the person has no place of business in New Zealand; and the person has notified FMA, in writing, that it wishes to rely on this exemption and has provided to FMA the documents listed in clause 6(d) (b) (c) (d) Australian personalised services for a retail client means financial adviser services to which all of the following apply: the services are personalised services received by a re- (a) tail client in New Zealand and one of the following ap- plies: (i) the client’s name either— (A) is on the client list that is provided to FMA under clause 6(d)(iii) at the time when the Australian licensee notifies FMA that it wishes to rely on this exemption; or has been notified to FMA under clause 6(h)(iii); or (B) (ii) (iii) the client became a client of the Australian li- censee when the client was physically in Aus- tralia; or the client became a client of the Australian li- censee
 when the client was physically in New Zealand, but did not become a client as a re- sult of conduct that was intended to induce or solicit retail clients in New Zealand to use any personalised financial adviser service, or conduct that was likely to have that effect, engaged in by the Australian licensee or its specified represen- tatives; and 2 2011/238 Financial Advisers (Australian Licensees) Exemption Notice 2011 cl 5 (c) (b) the services are provided from outside New Zealand through a specified
 representative; and the services are equivalent to, or no more than, the ser- vices that the Australian licensee is licensed or author- ised to provide to Australian clients in Australia Corporations Act means the Corporations Act 2001 of the Commonwealth of Australia FMA means the Financial Markets Authority FSPA means the Financial Service Providers (Registration and Dispute Resolution) Act 2008 specified representative means an individual to whom all of the following apply: (a) the individual is a representative (as defined in the Cor- porations Act) of the Australian licensee; and FMA has been notified in accordance with clause 6(d)(ii) or (h)(ii) by the Australian licensee that the individual is its specified representative; and the individual provides or will provide Australian per- sonalised services for a retail client on behalf of an Aus- tralian licensee from a place of business in Australia; and the individual has no place of business in New Zealand; and the individual is not a registered financial adviser or an authorised financial adviser or a QFE adviser under the Act.
(b) (c) (d) (e) (2) Any term or expression that is defined in the Act and used, but not defined, in this notice has the same meaning as in the Act.

Exemptions 5 (1) An Australian licensee is exempt, in respect of Australian per- sonalised services for a retail client, from sections 17(1), 20B, and 22 of the Act.
(2) A specified representative of an Australian licensee is exempt, in respect of Australian personalised services for a retail client, from sections 17(1), 20B, and 22 of the Act and from sections 11 and 12 of the FSPA in relation to the provision of those services.
3 Financial Advisers (Australian Licensees) Exemption Notice 2011 2011/238 Conditions of exemptions The exemptions in clause 5 are subject to the following con- ditions: (a) (b) (c) (d) (e) (f) the Australian licensee must be registered as a financial service provider under the FSPA; and the Australian licensee must be a member of a dispute resolution scheme in New Zealand in accordance with section 48 of the FSPA, and under that scheme must be responsible for the actions of its specified representa- tives in providing Australian personalised services for a retail client; and the Australian licensee and each of its specified rep- resentatives must have submitted to the non-exclusive jurisdiction of the New Zealand courts, and must have appointed a New Zealand agent to accept service of process, in respect of Australian personalised services for a retail client under this exemption notice; and the Australian licensee must have provided to FMA— written notice that the Australian licensee wishes (i) to rely on this exemption; and the names of, and contact information in respect of, each of its specified representatives at the time that it gives the notice under subparagraph (i); and a copy of the New Zealand retail client list of the Australian licensee at the time it gives its notice under subparagraph (i), showing those clients who have notified the Australian licensee that they have a residential address in New Zealand; and (iii) (ii) the Australian licensee must ensure that its specified representatives are adequately trained and competent under Australian law to provide Australian personalised services for a retail client; and the Australian licensee must have provided written dis- closure (which may be via email) to the New Zealand retail client (before, or, if not practicable before, as soon as practicable after, the Australian personalised services for a retail client are provided to the client in cl 6 6 4 2011/238 Financial Advisers (Australian Licensees) Exemption Notice 2011 cl 6 New Zealand) containing
 prominent statements and in- formation to the following effect: (i) that the specified representative acting on behalf of the Australian licensee is exempt from the re- quirement to be registered as a financial service provider under the FSPA and from the require- ment to be an authorised financial adviser under the Act in respect of the financial adviser ser- vices; and that the specified representative and the Aus- tralian licensee are regulated by ASIC under Australian laws, which differ from New Zealand laws (in particular the disclosure obligations); and that the Australian licensee is a member of a dispute resolution scheme in New Zealand, and under that scheme is responsible for the actions of its specified representatives in providing Aus- tralian personalised services for a retail client; and the details of that scheme; and that the Australian licensee and the specified rep- resentative have submitted to the non-exclusive jurisdiction of the New Zealand courts in respect of Australian personalised services for a retail client under this exemption notice; and the contact details of the agent appointed under paragraph (c) to accept service of process in New Zealand; and (ii) (iii) (iv) (v) (vi) (g) (h) the Australian licensee and its specified representatives must provide disclosure to the New Zealand retail client in accordance with the relevant Australian regulatory requirements as if the services were provided to an Aus- tralian retail client; and the Australian licensee must notify FMA as soon as practicable of the following, where it is relevant to the services that the Australian licensee provides under this exemption: 5 cl 6 Financial Advisers (Australian Licensees) Exemption Notice 2011 2011/238 (i) (ii) (iii) (iv) any change to its Australian financial services licence (including termination); and any change to its specified representatives; and if a specified representative has transferred from another Australian licensee to the Australian li- censee, any
 clients previously notified to FMA under paragraph (d)(iii) by the other Australian licensee in respect of that specified representa- tive and to whom the Australian licensee wishes to provide services under this exemption; and any exemptions or relief under Australian laws that it obtains; and (i) (j) (k) (l) the Australian licensee must notify FMA as soon as practicable of any material enforcement action or dis- ciplinary action taken by ASIC or any other overseas regulatory authority against the Australian licensee or any of its specified representatives; and the Australian licensee must maintain procedures to identify and record the address of its clients at the time that they become clients and to show when clients advise the Australian licensee that they have moved to New Zealand; and the Australian licensee must provide FMA upon request with an updated New Zealand client list showing the information specified in paragraphs (h)(iii) and (j); and the Australian licensee or its specified representatives must not, at any time after the date that the Australian licensee notifies FMA that it wishes to rely on this ex- emption, engage in— (i) conduct that is intended to induce or solicit retail clients in New Zealand to use any personalised financial adviser service; or conduct that is likely to have that effect.
(ii) Dated at Wellington this 28th day of June 2011.

6 2011/238 Financial Advisers (Australian Licensees) Exemption Notice 2011 Statement of reasons Sean Hughes, Chief Executive.

Statement of reasons This exemption notice comes into force on 1 July 2011 and expires on 30 June 2013.

The exemption is granted to permit Australian-regulated financial services firms to provide financial adviser services into New Zealand on an offshore basis.
The effect is that persons who hold current Australian financial ser- vices licences granted by the Australian Securities and Investments Commission, and their specified representatives under Australian law, are exempted from the following provisions of New Zealand law to the extent that they provide personalised services from Aus- tralia to New Zealand retail clients and have no place of business in New Zealand: • section 17(1) of the Financial Advisers Act 2008 (the Act).
In the case of Australian licensees, the broad effect is that this exempts the entity from acting only through registered or au- thorised individual advisers.
In the case of specified represen- tatives, the broad effect is that this exempts the entity’s indi- vidual advisers from having to be registered or authorised: in the case of both Australian licensees and specified represen- tatives, section 20B of the Act (restrictions on holding out as financial planner or investment planner): in the case of both Australian licensees and specified represen- tatives, section 22 of the Act (financial adviser must make dis- closure before providing personalised service to retail client): in the case of specified representatives, sections 11 and 12 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (broadly, this exempts the entity’s in- dividual advisers from having to be registered, and from the prohibition on holding out as being in the business of provid- ing financial service unless registered).
• • • FMA considers that it is appropriate to grant the exemption as a tem- porary measure to assist Australian-regulated financial advisers to 7 Statement of reasons Financial Advisers (Australian Licensees) Exemption Notice 2011 2011/238 provide personalised services to certain clients whilst long-term mu- tual arrangements for trans-Tasman recognition are being considered.
FMA is satisfied that the elements of section 148(2)(b) of the Act are fulfilled in relation to the exemption, as follows: • the relevant services are subject to the regulations of an over- seas jurisdiction; and the protection of the New Zealand public is unlikely to be prejudiced because of— • • • • • the protections offered under the Australian financial service providers regulatory regime: FMA’s relationship with ASIC, the regulator of Aus- tralian financial advisers, which involves sharing of in- formation and co-operation arrangements: the scope of the exemption being limited to certain cat- egories of New Zealand clients and certain services: the conditions imposed including notices to New Zealand clients, so that they are aware of the nature of the exemption, and disclosure being made as if the clients were based in Australia: the requirement that Australian licensees must be regis- tered on the New Zealand financial service providers register and be members of a New Zealand dispute reso- lution scheme; and the exemption is of limited duration, is to address rigidities in the law, is framed in such a way that it is no broader than is reasonably necessary to address the matters that gave rise to the exemption, and is granted as a class exemption so that potential candidates in similar situations will benefit from the same treatment.
• • Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 30 June 2011.

This notice is administered by the Financial Markets Authority.

12 8 Wellington, New Zealand: Published under the authority of the New Zealand Government—2011