Financial Markets Authority Act 2011

1: Title
This Act is the Financial Markets Authority Act 2011.
2: Commencement
This Act comes into force on 1 May 2011.
1: Preliminary provisions
3: Purpose of this Act
The purpose of this Act
a: establish the Financial Markets Authority as an independent Crown entity for the purposes of section 7
b: state the Financial Markets Authority's main objective and its functions; and
c: provide for the Financial Markets Authority to have certain general information-gathering and enforcement powers; and
d: provide for the disestablishment of the Securities Commission and of the office of the Government Actuary.
4: Interpretation
1: In this Act, unless the context otherwise requires,— associate member section 11(1) chairperson dealing section 6(1) document section 4 financial markets
a: means the financial markets in New Zealand; and
b: includes—
i: markets in New Zealand for the provision of financial services; and
ii: the capital markets in New Zealand financial markets legislation Schedule 1 financial markets participant
a: means a person who is, or is required to be, registered, licensed, appointed, accredited, Part 1 accredited,
b: includes any of the following:
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
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)
iiib: an operator of an FMI within the meaning of section 5 section 10(2)
iv: an FMC reporting entity (within the meaning of section 451
v: a climate reporting entity (within the meaning of section 461O
c: also includes any of the following:
i: a body corporate that is related to a person referred to in paragraph (a) or (b) (within the meaning of section 12(2)
ii: a director or senior manager of a person referred to in paragraph (a) or (b) (within the meaning of those terms in section 4
iii: a person who was previously a person referred to in any of paragraphs (a), (b), or (c)﻿(i) or (ii), in respect of any action, event, or circumstance while the person was such a person; but
d: does not include any class or classes of persons declared by the Governor-General by Order in Council not to be financial markets participants ( see financial products section 7 financial service section 5 FMA Part 2 involved in a contravention section 533 issuer section 11(1)﻿(b) law enforcement or regulatory agency
a: any department of State that, with the authority of the Prime Minister, is responsible for the administration of any part of the financial markets legislation:
b: the Commerce Commission:
c: the Director of the Serious Fraud Office:
d: the New Zealand Police:
e: the Registrar of Companies:
f: the Registrar of Financial Service Providers:
g: the Reserve Bank of New Zealand:
h: the Takeovers Panel
i: an accredited body (within the meaning of section 6(1) Auditor Regulation Act 2011) member
a: means a member of the board of the FMA referred to in section 10
b: in the circumstances set out in section 12 Minister offeror section 6(1) overseas regulator product holder section 6(1) regulated offer section 41(1) regulated product section 41(2)
2: An order under paragraph (d) of the definition of financial markets participant in subsection (1) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 4(1) dealing inserted 1 December 2014 section 63(1) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) dealings in securities repealed 1 December 2014 section 63(1) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant amended 1 July 2012 section 82 Auditor Regulation Act 2011 Section 4(1) financial markets participant replaced 1 December 2014 section 63(3) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant replaced 1 December 2014 section 63(3) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant replaced 1 December 2014 section 63(3) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant inserted 1 December 2014 section 63(3) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant inserted 11 May 2021 section 162 Financial Market Infrastructures Act 2021 Section 4(1) financial markets participant replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 4(1) financial markets participant inserted 27 October 2022 section 55(2) Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021 Section 4(1) financial markets participant replaced 1 December 2014 section 63(4) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) financial markets participant amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 4(1) financial products inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) involved in a contravention inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) issuer inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) law enforcement or regulatory agency inserted 1 July 2012 section 82 Auditor Regulation Act 2011 Section 4(1) offeror inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) product holder inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) regulated offer inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) regulated product inserted 1 December 2014 section 63(2) Financial Markets (Repeals and Amendments) Act 2013 Section 4(1) securities repealed 1 December 2014 section 63(5) Financial Markets (Repeals and Amendments) Act 2013 Section 4(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
5: Act binds the Crown
This Act binds the Crown.
2: Financial Markets Authority
Establishment of FMA
6: Financial Markets Authority established
This section establishes the Financial Markets Authority.
7: FMA is Crown entity
1: The FMA is a Crown entity for the purposes of section 7
2: The Crown Entities Act 2004 FMA's main objective and functions
8: FMA's main objective
The FMA's main objective is to promote and facilitate the development of fair, efficient, and transparent financial markets.
9: FMA's functions
1: The FMA's functions are as follows:
a: to promote the confident and informed participation of businesses, investors, and consumers in the financial markets, including (without limitation) by—
i: collecting and disseminating information or research about any matter relating to those markets:
ii: issuing warnings, reports, or guidelines, or making comments, about any matter relating to those markets, financial markets participants, or other persons engaged in conduct relating to those markets (including in relation to 1 or more particular persons):
iii: providing information about its functions, powers, and duties under this Act and other enactments (including promoting awareness by investors that all investments involve risks and that it is not the role of the FMA to remove those risks):
iv: providing, or facilitating the provision of, public information and education about any matter relating to those markets:
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):
b: to perform and exercise the functions, powers, and duties conferred or imposed on it by or under the financial markets legislation and any other enactments:
c: to monitor compliance with, investigate conduct that constitutes or may constitute a contravention or an involvement in a contravention
i: the Acts referred to in Part 1
ii: the Acts referred to in Part 2
d: to monitor, and conduct inquiries and investigations into any matter relating to, financial markets or the activities of financial markets participants or of other persons engaged in conduct relating to those markets:
e: to keep under review the law and practices relating to financial markets, financial markets participants, and other persons engaged in conduct relating to those markets:
f: to co-operate with—
i: any other law enforcement or regulatory agency (including under section 30
ii: overseas regulators (including under section 30 31
2: Subsection (1)﻿(b) and (c) do not limit the functions, powers, and duties conferred or imposed on any other person in respect of financial markets legislation.
2A: The function in subsection (1)﻿(f) includes acting as a member of the Council of Financial Regulators and as chairperson of the council (jointly with the Reserve Bank or in accordance with section 287(2)
3: The fact that some other person has functions, powers, and duties in respect of financial markets legislation does not limit or restrict the FMA's functions, powers, and duties in respect of that legislation.
4: Except as expressly provided otherwise in this or any other Act, the FMA must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
a: this Act; and
b: any other Act that expressly provides for the functions, powers, or duties of the FMA (other than the Crown Entities Act 2004 1978 No 103 s 10 Section 9(1)﻿(a)﻿(v) inserted 1 April 2014 section 64(1) Financial Markets (Repeals and Amendments) Act 2013 Section 9(1)﻿(c) amended 1 April 2014 section 64(2) Financial Markets (Repeals and Amendments) Act 2013 Section 9(2A) inserted 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Membership of board of FMA
10: Membership of board of FMA
The board of the FMA consists of not fewer than 5, and not more than 9, members. 1978 No 103 s 11(1)
11: Associate members
1: The Minister may appoint any person to be an associate member of the board of the FMA after consulting the chairperson.
2: The Minister may appoint no more than 5 associate members.
3: Subsection (1) applies despite section 28(1)﻿(b)
4: An associate member may be appointed only in relation to a matter or a class of matters to be specified in the member's notice of appointment, and for the period, not exceeding 5 years, that is specified in that instrument.
5: An associate member may not be appointed as chairperson, deputy chairperson, or a temporary deputy chairperson under clause 5 1986 No 5 s 11(1)–(2), (6)
12: Associate member treated as member of board
1: An associate member must be treated as being a member of the board of the FMA for the purposes of the performance or exercise of any function, duty, or power of a member of the board of the FMA under this Act or any other enactment.
2: Despite subsection (1), an associate member may attend and vote only at a meeting of the FMA relating to the matter or class of matters specified in that member's notice of appointment (including a meeting relating to matters incidental to the matter or class of matters so specified).
3: Except where section 11 1986 No 5 s 11(3), (4)
13: Removal of associate members
1: The Minister may remove any associate member from office on the same grounds and in the same manner as the Governor-General may remove a member under section 39
2: Subsection (1) applies despite section 39(1) 1986 No 5 s 13(2), (3) Provisions relating to divisions
14: FMA may act by divisions
1: The FMA or chairperson may determine that the powers of the FMA in relation to any matter or class of matters may be exercised by separate divisions of the FMA.
2: The FMA or chairperson may revoke or amend a determination made under subsection (1).
3: Every determination (or revocation or amendment of a determination) must be recorded in writing and signed by 3 members or the chairperson.
4: The powers in this section are an exception to clause 14
5: This section does not limit the power of the board of the FMA to delegate any of the functions or powers of the FMA or the board under section 73 1978 No 103 s 14B
15: Membership, chairperson, meetings, and resolutions of division
1: Each division consists of the members who are assigned to it for the time being by the FMA or chairperson.
2: Each division must have at least 3 members.
3: If the members assigned to a division do not include the chairperson, the FMA or chairperson must nominate 1 of those members as chairperson of the division. 1978 No 103 s 14C
16: Powers of division
1: For the purposes of determining any matter or class of matters specified in a determination under section 14
a: the FMA consists of the division of the FMA specified in the determination; and
b: the powers of that division are not affected by any changes or vacancies in its membership.
2: A division of the FMA may exercise powers of the FMA even though another division of the FMA is exercising powers of the FMA at the same time. 1978 No 103 s 14D Provisions relating to meetings of FMA
17: Quorum for meetings of FMA
1: At any meeting of the FMA, the quorum necessary for the transaction of business is 3 members.
2: This section and section 18 clause 9(1) 1978 No 103 s 15(5), (6)
18: Completion of proceedings where member unable to attend meeting
1: This section applies if—
a: a meeting of the FMA with 3 or more members commences any proceeding, inquiry, investigation, or the transaction of other business; and
b: the number of those members able to attend any subsequent meeting is reduced to 2 as a result of illness, accident, or other unavoidable cause, or the expiration of a member's term, or the resignation or removal from office of a member.
2: Despite section 17(1)
3: At a meeting of the FMA at which those 2 members are present, each of those members has a deliberative vote and, in the event of an equality of votes, the presiding member has a casting vote.
4: This section applies whether or not a division of the FMA is acting. 1978 No 103 s 15A
19: Assent to resolution without meeting
1: A resolution in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication), by 3 members of the FMA is as valid and effectual as if it had been passed at a meeting of the FMA duly called and constituted.
2: This section applies despite clause 13(1) 1978 No 103 s 16 Miscellaneous matters
20: Minister may request that FMA inquire and report
The Minister may, by notice to the FMA, request that the FMA inquire into, and report on, any matter relating to the financial markets, financial markets participants, or other persons engaged in conduct relating to those markets.
21: Provisions relating to Government Superannuation Fund
1: Despite anything in this Act, any person who, immediately before becoming a member or an employee of the FMA, is a contributor to the Government Superannuation Fund under Part 2
2: The Government Superannuation Fund Act 1956
3: Nothing in this section entitles any person referred to in subsection (1) to become a contributor to the Government Superannuation Fund after he or she has once ceased to be a contributor.
4: Subsection (3) is subject to the Government Superannuation Fund Act 1956
5: For the purposes of applying the Government Superannuation Fund Act 1956 controlling authority 1978 No 103 s 22(2)–(4)
22: Protection from liability for FMA and members and employees
1: The FMA is not liable for anything it may do or fail to do in the course of the performance or exercise or intended performance or exercise of its functions, powers, or duties, unless it is shown that it acted in bad faith or without reasonable care.
2: No member or employee of the FMA, nor any delegate of the FMA, is liable for anything that person may do or say or fail to do or say in the course of the operations of the FMA, unless it is shown that the person acted in bad faith.
3: Nothing in subsections (1) and (2) applies in respect of proceedings for—
a: an offence against section 78 78AA(1) 78A(1) 105 105A 105B
b: the offence of conspiring to commit an offence against any of those sections of the Crimes Act 1961
c: the offence of attempting to commit an offence against any of those sections of the Crimes Act 1961
4: Sections 122 to 126
5: This section contains an exception to section 121
6: This section is subject to sections 165 to 168 1978 No 103 s 28(1)–(5B) Section 22(3)﻿(a) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 22(6) amended 1 October 2012 section 245(2) Search and Surveillance Act 2012
23: FMA's warnings, reports, guidelines, or comments protected by qualified privilege
For the purposes of clause 3 1978 No 103 s 28(7) s 106(10)
24: Evidence of orders and decisions of FMA
In any proceeding under this Act or any other enactment, a certificate purporting to be signed by the chairperson and certifying that an order or a decision described in, or a copy of which is attached to, the certificate was made by the FMA on a date specified in the certificate is sufficient evidence, until the contrary is proved, that the order or decision was so made by the FMA. 1978 No 103 s 29
3: General information-gathering and enforcement powers
1: General information-gathering powers
Power to obtain information, documents, and evidence
25: FMA may require person to supply information, produce documents, or give evidence
1: If the FMA considers it necessary or desirable for the purposes of performing or exercising its functions, powers, or duties under this Act or any provision of the financial markets legislation, the FMA may, by written notice served on any person, require the person—
a: to supply to the FMA, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
b: to produce to the FMA, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or
c: if necessary, to reproduce, or assist in reproducing, in usable form, information recorded or stored in any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or
d: to appear before the FMA, or a specified person, at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice.
2: The FMA may also exercise its powers under subsection (1) for the purposes of complying with the request of an overseas regulator under section 31
3: Information supplied in response to a notice under subsection (1)﻿(a) must be—
a: given in writing; and
b: signed in the manner specified in the notice.
4: If a document is produced in response to a notice under subsection (1), the FMA, or the person to whom the document is produced, may—
a: inspect and make records of that document; and
b: take copies of the document or extracts from the document.
5: In this section and sections 26 27 specified person
a: a member or an employee of the FMA; or
b: another person to whom the board of the FMA has delegated the power to receive the relevant evidence (being a person that the FMA is satisfied is suitably qualified or trained, or is a member of a class of persons who are suitably qualified or trained, to exercise the power).
6: Subpart 5 1978 No 103 ss 67 68 69D s 98
26: Powers of FMA to receive evidence
1: The FMA may receive evidence through a specified person, or any 2 or more specified persons.
2: The FMA may receive in evidence, whether admissible in a court of law or not, any statement, document, information, or matter that,—
a: in the opinion of the FMA or the specified person who is receiving it, may assist the FMA in dealing effectively with any matter before it; or
b: the FMA may receive under section 31 1978 No 103 ss 69B(1) 69BA
27: How evidence may be given
1: The FMA may receive evidence—
a: given on oath:
b: not given on oath:
c: if the specified person who is receiving the evidence permits it, given by a written statement:
d: if the specified person who is receiving the evidence permits it, given by a written statement verified on oath:
e: given by audio-visual communication, if the FMA and the person giving the evidence agree.
2: A specified person may administer an oath for the purpose of a person giving evidence on oath. 1978 No 103 s 69C s 99(2)–(4)
28: Witnesses' expenses
1: If a person has appeared as a witness (whether or not under a notice under section 25
2: That sum must not exceed the amount that would be payable to the witness if his or her attendance had been as a witness for the Crown in a criminal case in accordance with regulations for the time being in force for the payment of witnesses for the Crown in criminal cases. 1978 No 103 s 69E s 99(5) Power to enter and search place, vehicle, or other thing
29: Power to enter and search place, vehicle, or other thing
1: The FMA may authorise a specified person to enter and search a place, vehicle, or other thing for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention , or being involved in a contravention,
a: to suspect that person has engaged in or is engaging in conduct that constitutes or may constitute such a contravention or involvement
b: to believe that the search will find evidential material in or on or part of the place, vehicle, or thing.
2: A specified person authorised under subsection (1) may enter and search the place, vehicle, or other thing if—
a: the occupier of the place consents or the person in charge of the vehicle or thing consents (as the case may be); or
b: the specified person obtains a warrant under subsection (3).
3: An issuing officer (within the meaning of section 3 subpart 3 the issuing officer
a: suspect that a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention , or being involved in a contravention,
b: believe that the search will find evidential material in or on or part of the place, vehicle, or thing
4: In this section specified person
a: an employee of the FMA; or
b: any other person that the FMA is satisfied is suitably qualified or trained, or is a member of a class of persons who are suitably qualified or trained, to act under this section
5: The provisions of Part 4 sections 118 119 Section 29(1) amended 1 April 2014 section 65(1) Financial Markets (Repeals and Amendments) Act 2013 Section 29(1)﻿(a) amended 1 April 2014 section 65(2) Financial Markets (Repeals and Amendments) Act 2013 Section 29(3) amended 1 October 2012 section 245(3)﻿(a) Search and Surveillance Act 2012 Section 29(3) amended 1 October 2012 section 245(3)﻿(b) Search and Surveillance Act 2012 Section 29(3)﻿(a) amended 1 April 2014 section 65(1) Financial Markets (Repeals and Amendments) Act 2013 Section 29(3)﻿(b) amended 1 October 2012 section 245(4) Search and Surveillance Act 2012 Section 29(4) amended 1 October 2012 section 245(5) Search and Surveillance Act 2012 Section 29(4) evidential material repealed 1 October 2012 section 245(6) Search and Surveillance Act 2012 Section 29(4) thing repealed 1 October 2012 section 245(6) Search and Surveillance Act 2012 Section 29(4) vehicle repealed 1 October 2012 section 245(6) Search and Surveillance Act 2012 Section 29(5) replaced 1 October 2012 section 245(7) Search and Surveillance Act 2012
2: Sharing information and documents
Power to share information and documents with other law enforcement or regulatory agencies and overseas regulators
30: Sharing of information and documents with law enforcement or regulatory agencies and overseas regulators
1: The FMA may provide to a law enforcement or regulatory agency or an overseas regulator 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 any other enactment; and
b: considers may assist, as the case may be,—
i: the law enforcement or regulatory agency in the performance or exercise of the law enforcement or regulatory agency's functions, powers, or duties under any enactment; or
ii: the overseas regulator in the performance or exercise of the overseas regulator's functions, powers, or duties under foreign law.
2: However, the FMA may provide information, or a copy of a document, to an overseas regulator under this section only if the FMA is satisfied that appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
3: The FMA may use any information, or a copy of any document, provided to it by a law enforcement or regulatory agency under any enactment, or by an overseas regulator, in the FMA's performance or exercise of its functions, powers, or duties under this Act or any other enactment.
4: This section applies despite anything to the contrary in any contract, deed, or document. 1978 No 103 ss 17A 17B Section 30(2) amended 1 December 2020 section 217 Privacy Act 2020 Power to act on requests of overseas regulators
31: Power of FMA to act on requests of overseas regulators
1: An overseas regulator may request the FMA to inquire into any matter related to the functions of that overseas regulator.
2: The FMA may obtain information, documents, or evidence that, in the FMA's opinion, is likely to assist the FMA in complying with that request by—
a: exercising its powers under section 25 section 52
b: exercising its powers to receive evidence.
3: If the powers under section 25
4: The FMA may transmit the information, documents, or evidence obtained by it to the overseas regulator in the manner that the FMA thinks fit. 1978 No 103 s 69F
32: FMA's consideration of requests
1: The FMA may comply with a request under section 31
a: compliance will not substantially affect the performance of its other functions; and
b: appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
c: it is appropriate to do so after taking into account any matters the FMA thinks relevant.
2: The matters the FMA may take into account under subsection (1) include, without limitation,—
a: whether the FMA is likely to be able to obtain the requested information, documents, or evidence:
b: the cost to the FMA of complying with the request:
c: whether the overseas regulator could more conveniently have the request satisfied by another source:
d: the extent to which the functions of the overseas regulator correspond with the functions of the FMA:
e: whether the overseas regulator would be likely to comply with a similar request made by the FMA and whether any arrangement with the overseas regulator to that effect exists:
f: whether, in the FMA's opinion, it would be more appropriate for the request to be dealt with under the Mutual Assistance in Criminal Matters Act 1992 1978 No 103 s 69G Section 32(1)﻿(b) amended 1 December 2020 section 217 Privacy Act 2020 Conditions
33: Conditions that may be imposed on providing information, documents, or evidence to other agencies or regulators
1: The FMA may impose any conditions in relation to providing information, documents, or evidence to a law enforcement or regulatory agency or an overseas regulator (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: Conditions imposed under subsection (1) 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 2020
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided:
d: payment of the costs incurred by the FMA in providing anything or in generally complying with a request. 1978 No 103 s 69H Section 33(3)﻿(a) amended 1 December 2020 section 217 Privacy Act 2020
3: FMA may exercise person’s right of action
34: FMA may exercise person’s right of action
1: If, as a result of an inquiry or investigation carried out by the FMA, the FMA considers that it is in the public interest for it to do so, the FMA may, in accordance with this subpart,—
a: exercise the right of action that a person ( person A
b: take over specified proceedings that have been commenced by a person ( person A
2: In this subpart, specified proceedings
a: proceedings under, or in respect of, any financial markets legislation (other than criminal proceedings):
b: proceedings seeking damages or other relief for a contravention, an involvement in a contravention, fraud, negligence
3: In exercising a power under this section, the FMA must act in the public interest, but (subject to that duty) may take into account the interests of—
a: person A; and
b: the shareholders, members, and creditors of person A; and
c: if person A is an issuer, any product holders of financial products issued by person A.
4:
5: The FMA must, when considering whether exercising a power under this section is in the public interest, have regard to—
a: its main objective under section 8
b: the likely effect of the proceedings on the future conduct of financial markets participants in connection with the financial markets; and
c: whether exercising the powers is an efficient and effective use of the FMA’s resources; and
d: the extent to which the proceedings involve matters of general commercial significance or importance to the financial markets; and
e: the likelihood of person A commencing the proceedings (if those proceedings have not yet been commenced) and diligently continuing the proceedings; and
f: any other matters it considers relevant. Section 34(2)﻿(b) amended 1 April 2014 section 66(1) Financial Markets (Repeals and Amendments) Act 2013 Section 34(3)﻿(c) replaced 1 December 2014 section 66(2) Financial Markets (Repeals and Amendments) Act 2013 Section 34(4) repealed 1 December 2014 section 66(3) Financial Markets (Repeals and Amendments) Act 2013
35: Requirements for FMA exercising person’s right of action
1: The FMA may commence proceedings under section 34(1)﻿(a)
a: person A has not yet commenced proceedings in respect of the matter; and
b: the FMA serves written notice on person A of its intention to commence proceedings; and
c: within 30 working days of the FMA giving that notice, person A does not—
i: commence proceedings; or
ii: give written notice to the FMA that it objects to the FMA commencing the proceedings.
2: However, the FMA may commence proceedings under section 34(1)﻿(a)
3: The FMA may exercise a power under section 34(1)﻿(b)
a: person A gives written notice to the FMA that he, she, or it consents to the FMA taking over the proceedings (in which case the High Court may, on an application from the FMA, make an order under section 38
b: the leave of the High Court is given under section 36
36: High Court may grant leave in certain circumstances
1: The FMA may, with the leave of the High Court,—
a: commence proceedings under section 34(1)﻿(a) section 35(1)﻿(c)﻿(ii)
b: take over proceedings under section 34(1)﻿(b) if proceedings have been commenced by person A.
2: The High Court must give leave if it is satisfied that it is in the public interest for—
a: the FMA to exercise a power under section 34(1)﻿(a) or (b)
b: the FMA, rather than person A, to control the conduct of the proceedings.
3: Despite subsections (1) and (2), if person A is an individual, this section does not apply (and, accordingly, the High Court may not give leave under this section).
4: The High Court must, when considering whether to give leave, have regard to—
a: whether person A intends to commence or diligently continue the proceedings (as the case may be); and
b: the interests of the persons referred to in section 34(3)
c: any other matters it considers relevant.
37: Procedural requirements for leave to exercise person’s right of action
1: The FMA must serve notice of an application for leave under section 36
2: In relation to that application for leave, person A—
a: may appear and be heard; and
b: must, if person A appears, inform the High Court whether person A intends to commence or continue proceedings.
38: Powers of High Court for proceedings exercising person’s right of action
1: The High Court may, on the application of the FMA, make any order it thinks fit in relation to proceedings commenced or taken over, or to be commenced or taken over, under this subpart, including (without limitation) an order—
a: authorising the FMA to control the conduct of the proceedings:
b: giving directions for the conduct of the proceedings:
c: requiring person A or the directors of person A to provide information or assistance in relation to the proceedings:
d: directing that any amount ordered to be paid by a defendant in the proceedings must be applied first to pay, in whole or in part, the FMA's actual costs in commencing or taking over the proceedings under this subpart and in conducting those proceedings:
e: subject to paragraph (d), directing that any amount ordered to be paid by a defendant in the proceedings must be paid, in whole or part, to any persons referred to in section 34(3)﻿(b) or (c)
2: If the FMA proposes to exercise a power under this subpart, the High Court may grant interim relief on the application of the FMA, whether or not the FMA has given the required notice, obtained leave, or satisfied any other requirements for its exercise of a power under this subpart.
3: The High Court may grant that interim relief on the conditions it thinks fit, including (without limitation) conditions as to the giving of notice or making of an application for leave.
39: Representative actions
1: If the FMA commences or takes over proceedings under this subpart in respect of person A, and other persons have the same or substantially the same interest in relation to the subject-matter of the proceedings as person A, the High Court may appoint the FMA to represent all or some of the persons having the same or substantially the same interest.
2: The High Court may, for the purpose referred to in subsection (1), make any order that it thinks fit, including (without limitation) an order—
a: as to the control and conduct of the proceedings:
b: as to the costs of the proceedings:
c: directing the distribution of any amount ordered to be paid by a defendant in the proceedings among the persons represented.
40: FMA must consult person A
1: The FMA must, after commencing or taking over proceedings under this subpart in respect of person A, consult with person A as to the conduct of those proceedings—
a: as the FMA considers appropriate; or
b: as otherwise directed by the High Court.
2: However, the FMA is not required to consult with person A, and the High Court must not direct the FMA to do so, if the FMA considers that consultation would materially prejudice the FMA in its ability to efficiently or effectively conduct the proceedings.
41: Proceedings must not be settled, compromised, or discontinued without approval
No proceedings commenced or taken over under this subpart may be settled, compromised, or discontinued without the approval of the High Court.
42: Special limitation provision
If the FMA applies for the leave of the High Court to commence proceedings under section 34(1)﻿(a)
a: the Limitation Act 2010, be treated as being the date on which the claim is filed in relation to those proceedings:
b: the Limitation Act 1950 section 59
43: Transitional provisions
1: The FMA may exercise a power under section 34
2: In subsection (1), claim section 4
3: To avoid doubt, if a person ceased to be a financial markets participant before the commencement of this section, the person must still be treated as being a person who has been a financial markets participant as referred to in section 34
4: The FMA may exercise the power to take over specified proceedings under section 34(1)﻿(b)
4: Other powers
Power to make confidentiality orders
44: Power to make confidentiality orders
1: The FMA may, on its own initiative or on the application of any person, make an order prohibiting the publication or communication of any information, document, or evidence that is provided or obtained in connection with any inquiry, investigation, or other proceeding of the FMA under this Act or any other enactment.
2: The FMA may make an order under subsection (1) on the terms and conditions (if any) that it thinks fit.
3: An order under subsection (1) may be expressed to have effect—
a: from the commencement of any inquiry, investigation, or other proceeding of the FMA to the end of that inquiry, investigation, or proceeding; or
b: for any shorter period.
4: At the end of the inquiry, investigation, or proceeding, the Official Information Act 1982 Privacy Act 2020 1978 No 103 s 69N Section 44(4) amended 1 December 2020 section 217 Privacy Act 2020
45: Publication or disclosure with FMA's consent
1: An order under section 44
2: For the purposes of subsection (1), the FMA's consent must not be unreasonably withheld.
3: It is reasonable for the FMA to withhold its consent if it considers that the publication or disclosure of any information, document, or evidence would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of contraventions of the financial markets legislation.
4: Subsection (3) does not limit the circumstances in which it may be reasonable for the FMA to withhold its consent. Power to accept undertakings
46: FMA may accept undertakings
1: The FMA may accept a written undertaking given by, or on behalf of, a person in connection with a matter in relation to which the FMA is performing or exercising any of its functions, powers, or duties for the purposes of this Act or any other enactment.
1A: An undertaking may be given in connection with the FMA making a statement under section 9(1)﻿(a)﻿(v)
2: The person may withdraw or vary the undertaking with the consent of the FMA. 1978 No 103 s 69J Section 46(1A) inserted 1 April 2014 section 67 Financial Markets (Repeals and Amendments) Act 2013
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 Section 46A inserted 1 April 2014 section 68 Financial Markets (Repeals and Amendments) Act 2013
47: Enforcement of undertakings
1: If the FMA considers that a person who has given an undertaking under section 46
2: The High Court may make any of the following orders if it is satisfied that the person has breached a term of the undertaking:
a: an order directing the person to comply with that term:
b: an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
c: any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss, injury, or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate.
3: The High Court must, before making an order under subsection (2), take into account—
a: the nature and extent of the breach of the term of the undertaking; and
b: the nature and extent of any loss, injury, or damage suffered by a person as a result of the breach of the term of the undertaking; and
c: the circumstances in which the breach of the term of the undertaking took place (including whether the breach was intentional, inadvertent, or caused by negligence); and
d: any other matters that it considers relevant. 1978 No 103 s 69K Power to state case for opinion of High Court
48: FMA may state case for opinion of High Court
1: The FMA may, at any time, state a case for the opinion of the High Court on a question of law arising in a matter before it under this Act or any other enactment.
2: The High Court may order the removal into the Court of Appeal of a case stated for the opinion of the High Court under this section.
3: The High Court or the Court of Appeal, as the case may be, must hear and determine the question, and remit the case with its opinion to the FMA. 1978 No 103 s 69O Power to appear and be heard and adduce evidence Heading inserted 1 April 2014 section 69 Financial Markets (Repeals and Amendments) Act 2013
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. Section 48A inserted 1 April 2014 section 69 Financial Markets (Repeals and Amendments) Act 2013 Power to require warning to be disclosed
49: FMA may require its warning to be disclosed
1: If the FMA has issued a warning about any matter relating to a relevant person, the FMA may, by written notice served on the relevant person, order the relevant person, or all or any associated persons of the relevant person, or both to do 1 or more of the following:
a: prominently disclose a copy of the warning on 1 or more Internet sites maintained by or on behalf of the relevant person or any of those associated persons:
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:
c: ensure that any disclosure document or other
d: ensure that any document of the kind that is specified in the order and that is required by any provision of the financial markets legislation to be given by the relevant person, or any of those associated persons, to another person contains, or is amended to contain, a copy of the warning in a prominent position or is accompanied by a copy of the warning.
2: The FMA may make an order under subsection (1) on the terms and conditions (if any) that it thinks fit.
3: If an order under subsection (1) extends to associated persons of the relevant person, the order may require—
a: all, or any specified class or classes, of the associated persons to comply with the order (including associated persons that may be incorporated or formed after the date of the order); and
b: the relevant person to provide a copy of the order to all or any of those associated persons.
4: For the purpose of subsection (3), the order is not required to refer to the associated persons by name.
5: The FMA may exercise a power under subsection (1) only if—
a: the FMA has had regard to whether exercising the power contributes to its function of promoting the confident and informed participation of businesses, investors, and consumers in the financial markets; and
b: the FMA gives the relevant person at least 3 working days' written notice of the following matters before the FMA exercises the power:
i: that the FMA may make an order under subsection (1); and
ii: the reasons why it is considering exercising that power; and
c: the FMA gives the relevant person or the relevant person's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
6: The FMA may—
a: vary an order made under subsection (1) in the same way as it may make the order:
b: revoke an order made under subsection (1) if it is satisfied that it should not continue in force.
7: In this section and section 51
a: relevant person
i: a person who is or has been a financial markets participant; or
ii: a person who is or has engaged in conduct that involves dealings in financial products
b: disclosure document
i: has the same meaning as in section 6(1)
ii: includes a register entry (within the meaning of that Act):
c: offer document financial products
d: offer restricted communication associated person distributed section 6(1) Section 49(1)﻿(b) replaced 1 April 2014 section 70(1) Financial Markets (Repeals and Amendments) Act 2013 Section 49(1)﻿(c) amended 1 December 2014 section 70(2) Financial Markets (Repeals and Amendments) Act 2013 Section 49(7)﻿(a)﻿(ii) amended 1 December 2014 section 70(3) Financial Markets (Repeals and Amendments) Act 2013 Section 49(7)﻿(b) replaced 1 April 2014 section 70(4) Financial Markets (Repeals and Amendments) Act 2013 Section 49(7)﻿(c) amended 1 December 2014 section 70(5) Financial Markets (Repeals and Amendments) Act 2013 Section 49(7)﻿(d) replaced 1 April 2014 section 70(6) Financial Markets (Repeals and Amendments) Act 2013
50: FMA must give notice of orders
1: If the FMA makes an order under section 49
a: it must, immediately after exercising the power, give notice on its Internet site of—
i: the reasons for making the order; and
ii: the terms and conditions of the order (if any); and
iii: any other information the FMA thinks relevant in the circumstances; and
b: it may give public notice by any other means of the matters in paragraph (a); and
c: it may notify any other person of the matters in paragraph (a).
2: If the FMA varies or revokes an order under section 49
a: it must, immediately after exercising the power, give notice on its Internet site of—
i: the reasons for the variation or revocation; and
ii: the terms and conditions of the variation (if any); and
iii: any other information the FMA thinks relevant in the circumstances; and
b: it may give public notice by any other means of the matters in paragraph (a); and
c: it may notify any other person of the matters in paragraph (a).
51: Offence of failing to comply with order
1: Every relevant person to whom an order under section 49
2: If an order under section 49
a: knew, or ought reasonably to have known, that the order applied to the associated person; and
b: refuses or fails, without reasonable excuse, to comply with the order.
3: Every person who commits an offence against subsection (1) or (2) is liable on Section 51(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
5: Miscellaneous provisions relating to powers
FMA may authorise person to obtain information or documents
52: Power to authorise person to obtain information or documents
1: The FMA may, in accordance with section 53 section 25(1)﻿(a) to (c)
a: this Act or any Act listed in Schedule 1
b: complying with the request of an overseas regulator under section 31
2: An authorisation under subsection (1) may relate to a particular case, or a class or classes of cases, specified by the FMA.
3: For the purposes of subsection (1), a notice served under section 25(1)﻿(a) to (c)
4: The fact that any person authorised by the FMA exercises, or attempts to exercise, any of the powers in section 25(1)﻿(a) to (c)
5: Section 73 1978 No 103 ss 67A 68
53: Requirements for persons authorised to obtain information or documents
1: The FMA must not authorise a person under section 52 section 25(1)﻿(a) to (c)
2: A person authorised by the FMA to exercise a power under section 25(1)﻿(a) to (c) 1978 No 103 s 68A
54: Non-disclosure of information or documents from exercise of powers under section 25 except in certain circumstances
1: A person authorised under section 52 section 25
a: to the FMA; or
b: as directed by the FMA in accordance with section 59(3)
c: in accordance with the Official Information Act 1982 Privacy Act 2020
2: A person authorised under section 52 Section 54(1)﻿(c) amended 1 December 2020 section 217 Privacy Act 2020 Section 54(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
55: Protection from liability for persons exercising powers
Without limiting any other statutory protection from liability, no person is liable for any act done or omitted to be done by the person in the exercise or intended exercise of the person's powers under section 25 54 1978 No 103 s 68F Privileges
56: Witnesses and counsel to have privileges of witnesses and counsel in court
1: Every person has the same privileges in relation to providing information and documents to, and answering questions before, the FMA, a member or an employee or a delegate of the FMA, or a person authorised under section 52
2: If a power under section 25 section 31 section 60
3: Subsection (2) does not limit any other privilege that the person may have.
4: Every person appearing as counsel before the FMA, or a member or an employee or a delegate of the FMA, has the same privileges as counsel have in proceedings before a court. 1978 No 103 s 69S Effect of proceedings on exercise of powers
57: Effect of proceedings
1: If a person commences a proceeding in any court in respect of the exercise of any powers conferred by section 25
a: the powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and
b: no person is excused from fulfilling his or her obligations under that section by reason of the proceeding.
2: However, an interim order may be made by the High Court overriding the effect of subsection (1), but only if the High Court is satisfied that—
a: the applicant has established a prima facie case that the exercise of the power in question is unlawful; and
b: the applicant would suffer substantial harm from the exercise or discharge of the power or obligation; and
c: if the power or obligation is exercised or discharged before a final decision is made in the proceeding, none of the remedies specified in subsection (3), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and
d: the terms of that order do not unduly hinder or restrict the FMA in performing or exercising its functions, powers, or duties under this Act or any provision of the financial markets legislation.
3: The remedies are as follows:
a: any remedy that the High Court may grant in making a final decision in relation to the proceeding (for example, a declaration):
b: any damages that the applicant may be able to claim in concurrent or subsequent proceedings:
c: any opportunity that the applicant may have, as defendant in a proceeding, to challenge the admissibility of any evidence obtained as a result of the exercise or discharge of the power or obligation. 1978 No 103 s 68I
58: Effect of final decision that exercise of powers under section 25 unlawful
1: This section applies in any case where it is declared, in a final decision given in any proceedings in respect of the exercise of any powers conferred by section 25
2: If this section applies, to the extent to which the exercise of those powers is declared unlawful, the FMA must ensure that, immediately after the decision of the court is given,—
a: any information obtained as a consequence of the exercise of powers declared to be unlawful and any record of that information are destroyed; and
b: any documents, or extracts from documents, obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person previously having possession of them, or previously having them under his or her control, and any copies of those documents or extracts are destroyed; and
c: any information derived from or based on such information, documents, or extracts is destroyed.
3: However, the court may, in the court’s discretion, order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the FMA subject to any terms and conditions that the court imposes.
4: No information, and no documents or extracts from documents, obtained as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or document,—
a: are admissible as evidence in any civil proceedings unless the court hearing the proceedings in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:
b: are admissible as evidence in any criminal proceedings if the evidence is excluded under section 30
c: may otherwise be used in connection with the exercise of any power conferred by this Act or any provision of the financial markets legislation unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence. Confidentiality
59: Confidentiality of information and documents
1: This section applies to the following information and documents:
a: information and documents supplied or disclosed to, or obtained by, the FMA under this Act or any financial markets legislation:
b: information and documents supplied or disclosed to, or obtained by, a person authorised under section 52 authorised person subpart 1
c: information derived from information and documents referred to in paragraph (a) or (b).
2: However, this section does not apply to information and documents to which section 23
3: The FMA must not publish or disclose, or direct an authorised person to publish or disclose, any information or document to which this section applies unless—
a: the information or document is available to the public under any enactment or is otherwise publicly available; or
b: the information is in a statistical or summary form; or
c: the publication or disclosure of the information or document is for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on the FMA by this Act or any other enactment; or
d: the publication or disclosure of the information or document is to a law enforcement or regulatory agency under subpart 2
e: the publication or disclosure of the information or document is to an overseas regulator under subpart 2
f: the publication or disclosure of the information or document is to a person who the FMA is satisfied has a proper interest in receiving the information or document; or
g: the publication or disclosure of the information or document is with the consent of the person to whom the information or document relates or of the person to whom the information or document is confidential.
4: The FMA must not publish or disclose, or direct an authorised person to publish or disclose, any information or document under subsection (3)﻿(f) unless the FMA is satisfied that appropriate protections are or will be in place for the purpose of maintaining the confidentiality of the information or document (in particular, information that is personal information within the meaning of the Privacy Act 2020 Section 59(4) amended 1 December 2020 section 217 Privacy Act 2020
60: Conditions relating to publication or disclosure of information or documents
1: The FMA may, by written notice to a person to whom any information or document is published or disclosed under section 59(3)﻿(c), (f), or (g)
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: Conditions imposed under subsection (1) 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 2020
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided.
4: A person who refuses or fails, without reasonable excuse, to comply with any conditions commits an offence and is liable on Section 60(3)﻿(a) amended 1 December 2020 section 217 Privacy Act 2020 Section 60(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Other offences
61: Criminal liability for obstructing exercise of powers
1: Every person commits an offence who—
a: refuses or fails, without reasonable excuse, to comply with a notice under section 25
b: in purported compliance with a notice under section 25
c: resists, obstructs, or delays a person acting under a warrant issued under section 29
d: having been required under a notice under section 25(1)﻿(d)
i: refuses or fails to appear; or
ii: refuses to take an oath or affirmation as a witness; or
iii: refuses to answer any question; or
iv: refuses or fails to provide any document or information that the person is required to provide; or
e: deceives or attempts to deceive or knowingly misleads the FMA or a specified person referred to in section 25(5)
f: wilfully acts in contravention of any order made by the FMA under section 44
2: A body corporate commits an offence under subsection (1)﻿(d) if it is required to appear under section 25(1)﻿(d)
3: Every person who commits an offence against subsection (1) is liable on 1978 No 103 s 59A Section 61(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Other miscellaneous provisions
62: Notices
1: A notice served by the FMA for the purposes of this Part is sufficiently served if it is—
a: in writing; and
b: signed by 1 or more of the members or by any person purporting to act with the authority of the FMA; and
c: served in accordance with section 63
2: All documents purporting to be signed by or on behalf of the FMA must, in all courts and in all proceedings under this Act, be treated as having been so signed with due authority unless the contrary is proved. 1986 No 5 s 101
63: Service of notices
1: Any notice or other document required or authorised to be served on any person for the purposes of this Part may—
a: be served on an individual—
i: by delivering it personally or by an agent (such as a courier) to the person; or
ii: by sending it by post addressed to the person at the person's usual or last known place of residence or business; or
iii: by sending it by fax or email to the person's fax number or email address provided by the person for the purpose; or
iv: in any other manner a District Court Judge directs:
b: be served on a company, within the meaning of the Companies Act 1993 section 388
c: be served on an overseas company in a manner provided for in section 390
d: be served on any other body corporate in a manner in which it could be served if the body corporate were a company within the meaning of the Companies Act 1993
2: In the absence of proof to the contrary, a notice, document, or notification sent to a person in accordance with—
a: subsection (1)﻿(a)﻿(ii) must be treated as having been served on the person when it would have been delivered in the ordinary course of post; and, in proving the delivery, it is sufficient to prove that the letter was properly addressed and posted:
b: subsection (1)﻿(a)﻿(iii) must be treated as having been served on the person on the second working day after the day on which it is sent.
3: Section 392
4: If a person is absent from New Zealand, a notice served on the person's agent in New Zealand in accordance with subsection (1) must be treated as having been served on the person.
5: If a person has died, the notice may be served, in accordance with subsection (1), on his or her personal representative.
64: Powers not limited
This Part does not limit any power that the FMA or any other person has under any other enactment. 1978 No 103 s 68C
65: Limitation on disclosure of information obtained in FMA's operations
1: No court or other person may require a member or an employee of the FMA, any delegate of the FMA, any expert appointed by the FMA, any person authorised under section 52
a: give evidence in court or in any proceedings of a judicial nature of anything coming to his or her knowledge in connection with the operations of the FMA; or
b: make discovery of a document or produce a document for inspection in court or in any proceedings of a judicial nature if the document was provided or obtained in connection with the operations of the FMA.
2: Subsection (1) does not apply to—
a: proceedings in respect of the falsity of any testimony; or
b: proceedings to which the FMA is a party (including where the FMA is acting under subpart 3
c: proceedings in respect of—
i: an offence under section 51 61
ii: an offence against section 78 78A(1) 105 105A 105B
iii: the offence of conspiring to commit an offence against any of those sections of the Crimes Act 1961
iv: the offence of attempting to commit an offence against any of those sections of the Crimes Act 1961
3: This section does not limit the application of the Official Information Act 1982 1978 No 103 s 69V
66: Part does not limit Privacy Act 2020
Nothing in this Part limits the Privacy Act 2020 Section 66 replaced 1 December 2020 section 217 Privacy Act 2020
4: Miscellaneous provisions
1: Fees, charges, costs, and levies
67: Regulations relating to fees, charges, and costs
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
a: requiring the payment to the FMA of fees and charges—
i: by financial markets participants in connection with the performance or exercise by the FMA of any function, power, or duty under this Act or any other enactment:
ii: on an application or a request to the FMA to perform or exercise any function, power, or duty under this Act or any other enactment:
b: prescribing the amounts of those fees and charges or the manner in which those fees and charges are to be calculated:
c: authorising the FMA to require payment of any costs incurred by the FMA in connection with an application or a request referred to in paragraph (a)﻿(ii).
2: Regulations
3: The FMA may refuse to perform or exercise a function, power, or duty until the prescribed fee, charge, or cost is paid.
4: Any fee, charge, or cost payable to the FMA is recoverable by the FMA in any court of competent jurisdiction as a debt due to the FMA.
5: Regulations under this section are secondary legislation ( see Part 3
6: If the regulations authorise the FMA under subsection (2) to grant a refund or waiver
a: the instrument granting the refund or waiver is secondary legislation ( see Part 3 , unless it applies only to 1 or more named persons
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (6)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (6)﻿(a) Publication See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (5) LA19 ss 73 74 cl 14 Presentation The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 67(2) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 67(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 67(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 67(6) amended 28 October 2021 regulation 51(a) Legislation Act (Amendments to Legislation) Regulations 2021 Section 67(6)﻿(a) amended 28 October 2021 regulation 51(b) Legislation Act (Amendments to Legislation) Regulations 2021
68: Levy of financial markets participants and other persons registered or incorporated under Acts referred to in Schedule 1
1: Every person that is included in a prescribed class of specified persons must pay to the Crown, or a prescribed person on behalf of the Crown, a levy prescribed by regulations.
2: In this section and section 69 specified persons
a: financial markets participants; and
b: every other person registered or incorporated, or who makes an application for the registration or incorporation of a person, under an Act referred to in Part 2
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levies.
4: Levies must be prescribed on the basis that the following costs should be met fully out of the levies:
a: a portion of the costs of the FMA in performing or exercising its functions, powers, and duties under this Act and any other enactment, where the size of the portion to be met by levies under this Act is determined by the Minister; and
b: the costs of collecting the levy money.
5: Levies may be prescribed on the basis that any actual cost that could have been, but has not been, recovered as a levy shortfall for a year may be recovered (along with any financing charge) over any period of up to 5 years.
6: The regulations may—
a: specify the class or classes of specified persons that are required to pay a levy:
b: specify the amount of levies, or method of calculating or ascertaining the amount of levies:
c: include in levies, or provide for the inclusion in levies of, any shortfall in recovering the actual costs:
d: refund, or provide for refunds of, any over-recovery of the actual costs:
e: provide for the payment and collection of levies:
f: provide different levies for different classes of specified persons:
g: specify the financial year or part financial year to which a levy applies, and apply that levy to that financial year or part financial year and each subsequent financial year until the levy is revoked or replaced:
h: for the first financial year to which a levy applies, include in a levy amount or method the costs relating to establishing the FMA, disestablishing the Securities Commission, and the FMA performing or exercising its functions, duties, and powers under any enactment:
i: require payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
j: provide for waivers or refunds of the whole or any part of a levy for any case or class of cases.
7: If a person is in 2 or more classes of specified persons in respect of which different levies have been prescribed, the person must pay each of those levies (unless the regulations provide otherwise).
8: A levy for a financial year that starts after the FMA begins to carry out any additional function under any enactment may recover the costs of performing that additional function, irrespective of the fact that the regulations may be made and come into effect after the start of the financial year.
9: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the FMA, or to any other person prescribed for the purposes of this subsection, on behalf of the Crown.
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.
11: Regulations under this section are secondary legislation ( see Part 3
12: If regulations authorise a person to grant waivers or refunds referred to in subsection (6)﻿(j),—
a: an instrument granting a waiver or refund is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (11). Legislation Act 2019 requirements for secondary legislation referred to in subsection (11) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (12)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (12)﻿(a) Publication See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (11) LA19 ss 73 74 cl 14 Presentation The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 68(10) replaced 1 April 2014 section 71 Financial Markets (Repeals and Amendments) Act 2013 Section 68(11) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 68(12) inserted 28 October 2021 regulation 52 Legislation Act (Amendments to Legislation) Regulations 2021
69: FMA must consult about request for appropriation
1: The FMA must, before submitting a request to the Minister seeking an appropriation of public money for the following year, or any change to an appropriation for the current year, that relates to costs that are intended to be recovered by way of levies under section 68
a: the persons or organisations that the FMA considers are able to represent the views of those specified persons who are liable to pay a levy under that section; and
b: any other representatives of persons whom the FMA believes to be significantly affected by a levy.
2: Consultation under subsection (1) must include consultation relating to the portion of the costs of the FMA that should be met by the levies.
3: The FMA must, at the time when the request is submitted, report to the Minister on the outcome of that consultation.
4: This section applies to requests in respect of the financial year beginning on 1 July 2013 and later financial years.
5: A failure to comply with this section does not affect the validity of any regulations made under section 68
2: Transitional provisions
70: Interpretation
In this subpart, unless the context otherwise requires,— commencement date Commission Securities Act 1978 property
a: means every type of property; and
b: includes money, and every type of estate and interest in property successor sections 82 85 Schedules 3 4 suitable alternative position
a: for which the employee has the appropriate skills and experience; and
b: the pay and conditions of which are, in their overall effect, no less favourable to the employee than those applying to the employee immediately before the date of the employee’s transfer to that position transferred employee
a: immediately before the commencement date, is employed by the Commission; and
b: is transferred to the FMA under section 72(1)﻿(f) Disestablishment of Securities Commission
71: Securities Commission disestablished
1: The Commission is disestablished.
2: The members of the Commission cease to hold office at the close of the day before the commencement date.
3: For the purpose of completing or deciding any inquiry, application, or matter that has been heard or considered (in whole or in part) before the commencement date, the board of the FMA may delegate any of the functions or powers of the FMA or the board in accordance with sections 73 to 76
4: Subsection (3) does not limit the power of the board of the FMA to make any other delegation in accordance with sections 73 to 76
72: Consequences of disestablishment
1: On the commencement date,—
a: the functions, duties, and powers of the Commission under any enactment vest in the FMA, except as specifically provided otherwise in this Act, but only to the extent that those functions, duties, and powers are consistent with the functions, duties, and powers of the FMA under this Act and any other enactment (subject to subsection (4)); and
b: all property belonging to the Commission vests in the FMA; and
c: all information and documents held by the Commission are held by the FMA; and
d: all money payable to or by the Commission becomes payable to or by the FMA; and
e: all rights, liabilities, contracts, entitlements, and engagements of the Commission become the rights, liabilities, contracts, entitlements, and engagements of the FMA; and
f: subject to section 74
g: anything done, or omitted to be done, or that is to be done, by or in relation to the Commission is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the FMA; and
h: the commencement, continuation, or enforcement of proceedings by or against the Commission may instead be commenced, continued, or enforced by or against the FMA without amendment to the proceedings; and
i: the completion of a matter or thing that would, but for this section, have been completed by the Commission may be completed by the FMA.
2: The transfer of information from the Commission to the FMA under subsection (1)﻿(c) does not constitute an action that is an interference with the privacy of an individual under section 69
3: The disestablishment of the Commission does not, by itself, affect any of the following matters:
a: any decision made, or anything done or omitted to be done, by the Commission in relation to the performance or exercise of its functions, powers, or duties under any enactment:
b: any proceedings commenced by or against the Commission:
c: any other matter or thing arising out of the Commission’s performance or exercise, or purported performance or exercise, of its functions, powers, or duties under any enactment.
4: Despite subsection (1)﻿(a), it is a function of the FMA to perform or exercise any functions, powers, or duties of the Commission that are necessary or desirable for it to perform or exercise, on a temporary basis, for the purpose of effectively managing the transition of functions from the Commission to the FMA. Section 72(2) amended 1 December 2020 section 217 Privacy Act 2020
73: References to Securities Commission
1: A reference (express or implied) to the Commission in any enactment (other than this Act), or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date, must be read as a reference to the FMA.
2: A reference (express or implied) to an officer or employee of the Commission in any enactment, or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date must be read as a reference to—
a: the corresponding employee of the FMA; or
b: if there is no corresponding employee, any other employee of the FMA as the FMA thinks fit.
3: This section—
a: applies unless the context otherwise requires; and
b: is subject to subpart 3 Securities Amendment Act 2011
74: Transfer of employees
1: The terms and conditions of employment of a transferred employee immediately before the commencement date continue to apply in relation to that employee until—
a: those terms and conditions are varied by agreement between the transferred employee and the FMA; or
b: the transferred employee accepts a subsequent appointment with the FMA.
2: For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of a transferred employee,—
a: the employment agreement of that employee is to be treated as unbroken; and
b: the employee’s period of service with the Commission, and every other period of service of that employee that is recognised by the Commission as continuous service, is to be treated as a period of service with the FMA.
3: To avoid doubt, the employment of a transferred employee by the FMA does not constitute new employment for the purposes of the KiwiSaver Act 2006
4: A transferred employee is not entitled to receive any payment or benefit from the Commission or the FMA on the grounds that the person's position in the Commission has ceased to exist or the person has ceased to be an employee of the Commission as a result of the transfer to the FMA.
5: This section overrides Part 6A
75: Effect of Act
Nothing effected or authorised by sections 71 to 74
a: places the Commission, the FMA, or any other person in breach of contract or confidence, or makes any of them liable for a civil wrong; or
b: entitles a person to terminate or cancel a contract or an arrangement, or to accelerate the performance of an obligation, or to impose a penalty or an increased charge; or
c: places the Commission, the FMA, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of property or the disclosure of information; or
d: releases a surety from an obligation; or
e: invalidates or discharges a contract or surety.
76: Registers
1: The Registrar-General of Land or any other person charged with keeping books or registers is not required to change the name of the Commission to the FMA in the books or registers, or in a document, solely because of the provisions of this Act.
2: If the FMA presents an instrument referred to in subsection (3) to a Registrar or another person, the presentation of that instrument by the FMA is, in the absence of proof to the contrary, sufficient evidence that the property is vested in the FMA.
3: For the purposes of this section, the instrument need not be an instrument of transfer, but must—
a: be executed or purport to be executed by the FMA; and
b: relate to a property held by the Commission immediately before the commencement date; and
c: be accompanied by a certificate by the FMA that the property became vested in the FMA by virtue of the provisions of this Act. Disestablishment of office of Government Actuary
77: Office of Government Actuary disestablished
1: The office of the Government Actuary is disestablished.
2: This section is subject to section 80
78: Consequences of disestablishment
1: On the commencement date, in respect of any function, duty, or power of the Government Actuary under any enactment for which the FMA is the successor,—
a: all information and documents held by the Government Actuary are held by the FMA; and
b: anything done, or omitted to be done, or that is to be done, by or in relation to the Government Actuary is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the FMA; and
c: the commencement, continuation, or enforcement of proceedings by or against the Government Actuary may instead be commenced, continued, or enforced by or against the FMA without amendment to the proceedings; and
d: the completion of a matter or thing that would, but for this section, have been completed by the Government Actuary may be completed by the FMA.
2: On the commencement date, in respect of any function, duty, or power of the Government Actuary under any enactment for which the FMA is not the successor,—
a: all information and documents held by the Government Actuary are held by the department for the time being responsible for the administration of the Superannuation Schemes Act 1989 department
b: anything done, or omitted to be done, or that is to be done, by or in relation to the Government Actuary is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the chief executive of the department; and
c: the commencement, continuation, or enforcement of proceedings by or against the Government Actuary may instead be commenced, continued, or enforced by or against the chief executive of the department without amendment to the proceedings; and
d: the completion of a matter or thing that would, but for this section, have been completed by the Government Actuary may be completed by the chief executive of the department.
3: The transfer of information from the Government Actuary to the FMA under subsection (1)﻿(a), or from the Government Actuary to the department under subsection (2)﻿(a), does not constitute an action that is an interference with the privacy of an individual under section 69
4: The disestablishment of the office of the Government Actuary does not, by itself, affect any of the following matters:
a: any decision made, or anything done or omitted to be done, by the Government Actuary in relation to the performance or exercise of his or her functions, powers, or duties under any enactment:
b: any proceedings commenced by or against the Government Actuary:
c: any other matter or thing arising out of the Government Actuary’s performance or exercise, or purported performance or exercise, of his or her functions, powers, or duties under any enactment.
5: This section is subject to section 80 Section 78(3) amended 1 December 2020 section 217 Privacy Act 2020
79: References to Government Actuary
1: A reference (express or implied) to the Government Actuary in any enactment (other than this Act), or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date, must be read as a reference to the successor.
2: This section—
a: applies unless the context otherwise requires; and
b: is subject to subpart 3 section 80
80: Office of Government Actuary continues for limited purpose until 30 September 2011
1: Despite section 77 section 82
a: Government Superannuation Fund Act 1956
b: Government Superannuation Fund Amendment Act 1969
c: Government Superannuation Fund (Ceasing Contributions) Regulations 1995
d: Government Superannuation Fund Regulations 1995
2: To the extent required by subsection (1), until the close of 30 September 2011,—
a: sections 78 79
b: the enactments described in subsection (1) continue to apply as if they had not been amended by section 82 Miscellaneous provisions
81: Ministry of Economic Development employees
1: An employee is not entitled to receive any payment or other benefit on the ground that his or her position in the Ministry of Economic Development has ceased to exist if—
a: the position ceases to exist as a result of a change in the functions of the Ministry of Economic Development or the Registrar of Companies in connection with the establishment of the FMA; and
b: the person is offered a suitable alternative position by the FMA; and
c: the offer is made—
i: in the period between the date on which this Act receives the Royal assent and the date that is 6 months after the commencement date; and
ii: for employment that commences on or after the commencement date.
2: This section overrides Part 6A
3: Amendments to other enactments
82: Amendments to other enactments
The enactments specified in Schedule 3 2011-05-01 Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Building Societies Act 1965 Companies Act 1993 Corporations (Investigation and Management) Act 1989 Crown Entities Act 2004 Defence Act 1990 Fair Trading Act 1986 Financial Advisers Act 2008 Financial Reporting Act 1993 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Friendly Societies and Credit Unions Act 1982 Government Superannuation Fund Act 1956 Government Superannuation Fund Amendment Act 1969 Human Rights Act 1993 Income Tax Act 2007 Industrial and Provident Societies Act 1908 Judicature Act 1908 KiwiSaver Act 2006 Life Insurance Act 1908 Limited Partnerships Act 2008 National Provident Fund Restructuring Act 1990 National Provident Fund Restructuring Amendment Act 1991 Official Information Act 1982 Ombudsmen Act 1975 Privacy Act 1993 Remuneration Authority Act 1977 Reserve Bank of New Zealand Act 1989 Securities Markets Act 1988 Securities Transfer Act 1991 Summary Proceedings Act 1957 Superannuation Schemes Act 1989 Takeovers Act 1993 Tax Administration Act 1994 Unit Trusts Act 1960 Financial Reporting (Fees and Forms) Regulations 2007 Futures Industry (Client Funds) Regulations 1990 Government Superannuation Fund (Ceasing Contributions) Regulations 1995 Government Superannuation Fund Regulations 1995 KiwiSaver Regulations 2006 Securities Act (Contributory Mortgage) Regulations 1988 Securities (Fees) Regulations 1998 Securities Markets (Fees) Regulations 2003 Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008 Securities Regulations 2009 Takeovers (Fees) Regulations 2001
83: Transitional provisions relating to consequential amendments to Unit Trusts Act 1960
1: Every person who, before the commencement of this section, was approved by a Minister under section 4(2)
2: If, before the commencement of this section, an application has been made by a Minister under section 19(1)
3: If, before the commencement of this section, an inspector is appointed by a Minister under section 21
a: may continue the investigation as if section 21
b: must make his or her report to the FMA rather than the Minister.
4: A consent under section 25(3)
84: Amendments consequential on replacement of Commission by FMA
1: The provisions of the Acts specified in Part 1 Securities Commission Financial Markets Authority
2: The provisions of the regulations specified in Part 2 Securities Commission Financial Markets Authority
3: The provisions of the Acts specified in Part 3 Commission FMA
4: The provisions of the regulations specified in Part 4 Commission FMA
5: The provisions of the Acts specified in Part 5 Commission's FMA's 2011-05-01 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Securities Transfer Act 1991 Financial Reporting (Fees and Forms) Regulations 2007 Securities Act (Contributory Mortgage) Regulations 1988 Securities Markets (Market Manipulation) Regulations 2007 Securities Markets (Substantial Security Holders) Regulations 2007 Securities (Mutual Recognition of Securities Offerings—Australia) Regulations 2008 Financial Advisers Act 2008 Reserve Bank of New Zealand Act 1989 Securities Act 1978 Securities Markets Act 1988 Futures Industry (Client Funds) Regulations 1990 Securities Markets (Fees) Regulations 2003 Securities Regulations 2009
85: Amendments consequential on replacement of Government Actuary by FMA
1: The provisions of the Acts specified in Part 6 Government Actuary FMA
2: The provisions of the regulations specified in Part 7 Government Actuary FMA 2011-05-01 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Human Rights Act 1993 Income Tax Act 2007 KiwiSaver Act 2006 Superannuation Schemes Act 1989 Tax Administration Act 1994 KiwiSaver Regulations 2006 Securities Regulations 2009 Superannuation Schemes (Fees) Regulations 1992