Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014

1: Title
This Act is the Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014.
2: Commencement
1: Sections 3 43
2: The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates and for different purposes.
3: To the extent that it is not previously brought into force under subsection (1) or (2)
4: In this section, provision Schedule Section 2(2) brought into force 1 July 2014 Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014 Commencement Order 2014
3: Principal Act
This Act amends the Financial Service Providers (Registration and Dispute Resolution) Act 2008 principal Act 2014-06-07 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Sections 3 and 43 OIC LI 2014/202 2014-07-01 Financial Service Providers (Registration and Dispute Resolution) Act 2008 All of the Act, except for s3 & s43 (already in force), and s7 (see below) 2015-06-06 Financial Service Providers (Registration and Dispute Resolution) Act 2008 Financial Service Providers (Registration and Dispute Resolution) Amendment Act 2014 Section 7, which may be brought into force by OIC
4: New section 2A inserted (Purposes of this Act)
After the Part 1
2A: Purposes of this Act
The purposes of this Act are—
a: to promote the confident and informed participation of businesses, investors, and consumers in the financial markets; and
b: to promote and facilitate the development of fair, efficient, and transparent financial markets.
5: Section 3 amended (Overview)
1: In section 3(2) In order to be registered, financial Financial
2: In section 3(3) , why the approval might be withdrawn, and how a dispute resolution scheme may be appointed as the reserve scheme and why the approval might be withdrawn
3: Repeal section 3(4)
6: Section 4 amended (Interpretation)
1: In section 4 credit contract
2: In section 4 credit contract no interest charges , and no credit fees,
3: In section 4 creditor FMA levy .
4: In section 4 affiliated entity reserve scheme responsible financial service provider
7: Section 5 amended (Meaning of financial service)
In section 5(e) providing credit being a creditor
8: Section 7 amended (Application of Act)
Repeal section 7(2)(g)
9: Subpart 1 heading in Part 2 amended
In Part 2 registered and member of approved dispute resolution scheme
10: Section 11 amended (No being in business of providing financial service unless registered)
1: In the heading to section 11 registered and member of approved dispute resolution scheme
2: Replace section 11(1)
1: A person to whom this Act applies must not be in the business of providing a financial service unless that person—
a: is registered for that service under this Part; and
b: is, if required by section 48, a member of an approved dispute resolution scheme.
11: Section 12 amended (No holding out that in business of providing financial service unless registered)
1: In the heading to section 12 registered and member of approved dispute resolution scheme
2: Replace section 12(1)
1: A person to whom this Act applies must not—
a: hold out that the person is registered under this Act unless that person—
i: is registered under this Part; and
ii: is, if required by section 48, a member of an approved dispute resolution scheme; or
b: hold out that the person is registered in respect of a particular service or entitled, qualified, able, or willing to be in the business of providing a financial service unless that person—
i: is registered for that service under this Part; and
ii: is, if required by section 48, a member of an approved dispute resolution scheme.
12: Section 13 amended (Qualifications for registration as financial service provider)
Repeal section 13(b)
13: Section 14 amended (Disqualified person)
1: After section 14(2)(e)
ea: a person who has been convicted within the past 5 years, in a country other than New Zealand, of an offence that is substantially similar to an offence specified in paragraph (e): .
2: In section 14(2)(f) financing of terrorism , whether in New Zealand or elsewhere
14: Section 15 amended (Application to be registered as financial service provider)
Repeal section 15(1)(a)(ii)
15: New sections 15A to 15C inserted
After section 15
15A: Purpose of FMA's powers relating to registration
The purpose of section 15B A
a: creating, or causing the creation of, a false or misleading appearance with respect to the extent to which A—
i: provides, or will provide, financial services in New Zealand; or
ii: provides, or will provide, financial services from a place of business in New Zealand; or
iii: is, or will be, regulated by New Zealand law in relation to a financial service; or
b: otherwise damaging the integrity or reputation of—
i: New Zealand's financial markets; or
ii: New Zealand's law or regulatory arrangements for regulating those markets.
15B: FMA may prevent registration of financial service provider
1: On receipt of an application under section 15, the Registrar may, if the Registrar considers it necessary or desirable after having regard to section 15A
2: If the FMA decides to consider the application, the FMA must, after taking into account section 15A
3: If, in the FMA's view, the applicant should be prevented from being registered under section 16(1), the FMA must—
a: comply with subsection (4)
b: if, having considered any submission received under subsection (4)
c: give its reasons for that direction.
4: Before giving a direction under subsection (3)(b)
a: give the applicant—
i: written notice of its intention to give the direction; and
ii: the reasons why it intends to give that direction; and
iii: a date (being not less than 10 working days after the date of the notice referred to in subparagraph (i)
b: consider any submissions received in accordance with paragraph (a)(iii)
5: The Registrar must comply with a direction given under subsection (3)(b)
6: A provider who is not satisfied with a direction given under this section may appeal to the High Court under section 42.
15C: FMA may prevent registration regardless of whether applicant is otherwise qualified to be registered
The FMA may give a direction under section 15B
16: Section 16 amended (Registration of financial service provider)
1: Repeal section 16(1)(a)(ii)
2: After section 16(1)(a)
aa: notify the provider of the Registrar's decision; and
ab: require the provider to notify the Registrar, within 10 working days from receiving notification under paragraph (aa) .
3: In section 16(2)
a: after financial service provider, or if directed by the FMA to reject the application,
b: after decision or the FMA's direction, as the case may be
4: After section 16(2)
3: Subsection (1) does not apply if the FMA has directed the Registrar to reject the application.
17: Section 17 amended (Duty to notify changes relating to financial service provider)
1: Replace section 17(1)(a)(iii)
iii: the provider knows that any details on the register are no longer accurate, including information relating to the provider's membership of an approved dispute resolution scheme: .
2: Replace section 17(1)(c)
c: the person responsible for an approved dispute resolution scheme of which a financial service provider was a member, if the person knows that the provider is no longer a member of that scheme, in which case the person responsible must also notify the Registrar of the following matters:
i: whether that provider’s membership was terminated under section 63(1)(ba)
ii: whether any remedial action imposed on that provider by the scheme has not been carried out; and
iii: whether there is any unresolved complaint about that provider.
3: After section 17(1)
1A: To avoid doubt, the notification obligations in subsection (1)(c)
4: In section 17(2) change or, in the case of an approved dispute resolution scheme or a reserve scheme that has been discontinued, within 10 working days of that discontinuance
18: Section 18 amended (Deregistration of financial service provider)
1: After section 18(1)(a)
aa: has failed to notify the Registrar of the name, business address, and membership number, as required by section 16(1)(ab) .
2: After section 18(1)
1A: The Registrar may, if the Registrar considers it necessary or desirable after taking into account section 18A
1B: The Registrar must deregister a financial service provider if the FMA gives a direction under section 18B(3)(c)(i)
19: New sections 18A to 18C inserted
After section 18
18A: Purpose of FMA's powers relating to deregistration
The purpose of section 18B A
a: creating, or causing the creation of, a false or misleading appearance with respect to the extent to which A—
i: provides, or will provide, financial services in New Zealand; or
ii: provides, or will provide, financial services from a place of business in New Zealand; or
iii: is, or will be, regulated by New Zealand law in relation to a financial service; or
b: otherwise damaging the integrity or reputation of—
i: New Zealand's financial markets; or
ii: New Zealand's law or regulatory arrangements for regulating those markets.
18B: Consideration of deregistration of financial service provider by FMA
1: The FMA—
a: may, but is not required to, consider a referral under section 18(1A)
b: may otherwise consider giving a direction under this section at its own discretion (if a referral has not been made).
2: If the FMA decides to consider the referral or otherwise decides to consider giving a direction under this section, the FMA must, after taking into account section 18A
3: If, after acting under subsection (2)
a: give the financial service provider—
i: written notice of its intention to give the direction; and
ii: the reasons why it intends to give the direction; and
iii: a date (being not less than 20 working days after the date of the notice referred to in subparagraph (i)
b: consider any submissions received in accordance with paragraph (a)(iii)
c: either,—
i: if the FMA remains of the view that the financial service provider should be deregistered, direct the Registrar to deregister the provider; or
ii: if the FMA decides that the provider should not be deregistered, advise the Registrar accordingly; and
d: give its reasons for the direction or advice, as the case may be.
4: A provider who is not satisfied with a direction given under this section may appeal to the High Court under section 42.
5: Sections 19 and 20 do not apply if a financial service provider is deregistered as a result of a direction given under subsection (3)(c)(i)
18C: FMA may direct deregistration regardless of whether section 18(1) applies
The FMA may give a direction under section 18B
20: Section 23 and cross-heading repealed
Section 23
21: Section 26 amended (Purposes of register)
In section 26(a)(ii)(B) or the reserve scheme
22: Section 27 amended (Contents of register)
1: In section 27(b) or the reserve scheme
2: In section 27
2: In addition to the information referred to in subsection (1), the Registrar may, if the Registrar thinks it is appropriate, insert a note of warning in the register in relation to a registered person if—
a: a request for information has been made by the Registrar under this Act in relation to that person; or
b: the Registrar or the FMA is considering any matters relating to the deregistration of that person under this Act.
3: The Registrar must remove a note of warning inserted under subsection (2)
23: Section 31 amended (Searches of register)
In section 31 27(a) 27(1)(a)
24: Section 34 amended (Sharing information with other persons or bodies)
Replace section 34(4)(d)
d: the Commerce Commission: .
25: Section 37 amended (Registrar’s inspection powers)
1: After section 37(1)(c)
ca: is ordinarily resident in New Zealand; or
cb: has a place of business in New Zealand; or
cc: is in the business of providing a financial service; or .
2: After section 37(2)(a)
aa: ascertaining whether information provided to the Registrar is correct:
ab: requiring a person, in relation to information provided to the Registrar, to—
i: confirm that the information is correct; or
ii: correct the information:
ac: specifying—
i: a particular form in which the confirmation or correction referred to in paragraph (ab)
ii: a date by which the confirmation or correction must be provided; and
iii: whether the confirmation or correction must be verified by the production of original documents or certified copies of original documents or by a statutory declaration: .
3: In section 37(6) subsection (2)(a) to (ab) subsection (2)(ac)
4: After section 37(9)(c)
ca: is ordinarily resident in New Zealand; or
cb: has a place of business in New Zealand; or
cc: is in the business of providing a financial service; or .
26: Section 42 amended (Appeals from Registrar’s decisions)
1: In the heading to section 42 decisions and FMA directions
2: After section 42(1)
1A: A financial service provider who is not satisfied with any direction given by the FMA under section 15B or 18B
3: In section 42(2) and (3)(a) decision or direction
4: In section 42(3)(b) Registrar or the FMA
5: Replace section 42(3)(c)
c: refer the decision or direction back to the Registrar or the FMA (as the case may be) with directions to reconsider the whole or a specified part of the decision or direction.
27: Section 43 amended (Decisions continue in effect until appeal)
1: In the heading to section 43 Decisions or directions
2: In section 43 decision or direction
28: Section 48 amended (Financial service provider must be member of dispute resolution scheme)
1: In section 48(1) either an approved dispute resolution scheme, or the reserve scheme, an approved dispute resolution scheme
2: In section 48(2) or the reserve scheme
29: Section 49F amended (Members of dispute resolution scheme must comply with rules and binding resolutions)
In section 49F(1) or the reserve scheme
30: Section 49G amended (Offence to fail to comply with District Court order)
In section 49G(1) or the reserve scheme
31: Section 50 amended (Meaning of approved dispute resolution scheme)
In section 50
2: If an interim dispute resolution scheme is appointed under section 79AA
3: However, nothing in sections 51 to 61 applies in relation to the interim dispute resolution scheme.
32: Section 52 amended (Mandatory considerations for approval)
After section 52(1)(d)
da: whether the scheme will accept all types of financial service providers as members and, if not, whether there are other approved dispute resolution schemes that cover all types of financial service providers: .
33: Section 56 amended (Withdrawal of approval)
1: After section 56(1)(b)
ba: the rules about the scheme do not, or no longer, comply with the requirements of section 63: .
2: In section 56(1)(e)(iii) 63(q) 63(1)(q)
3: After section 56(3)
3A: However, despite subsection (3), the Minister is not required to withdraw approval unless the person responsible for the scheme has, at the time of the request,—
a: given the Minister—
i: 3 months' notice of the date on which the proposed withdrawal of approval is to take place; or
ii: any lesser notice period agreed to by the Minister; and
b: informed the Minister of adequate arrangements that it has made, or will make, to facilitate the transfer of members of the existing scheme to another approved dispute resolution scheme or schemes.
34: Section 57 amended (Notice of intention to withdraw approval)
After section 57(3)
4: The Minister's notice may also require the person responsible for the scheme to do 1 or more of the following:
a: notify members of the scheme of adequate arrangements that have been, or will be, made to facilitate the transfer of members of the scheme to another approved dispute resolution scheme or schemes:
b: make clear to those members that those members may—
i: apply to join another approved dispute resolution scheme or schemes in accordance with those arrangements; or
ii: apply to join any other approved dispute resolution scheme:
c: remind each of its members of the member's obligation—
i: to continue to be a member of an approved dispute resolution scheme, as required by section 48; and
ii: to notify the Registrar that the member has transferred to another approved dispute resolution scheme, and details of that scheme, as required by section 17.
35: Section 61 replaced (Effect of withdrawal of approval on members of dispute resolution scheme)
Replace section 61
61: Effect of withdrawal of approval on members of dispute resolution scheme
When a dispute resolution scheme's approval is withdrawn, each member of the scheme—
a: ceases to be a member of that scheme; and
b: must ensure that—
i: the member's obligations under section 17 are complied with; and
ii: the member continues to comply with section 48.
36: Section 63 amended (Rules about approved dispute resolution scheme)
1: In section 63(a) (all providers of that type must be eligible)
2: After section 63(a)
aa: that the types of financial service providers referred to in paragraph (a) must be accepted as members of the scheme, unless—
i: refused membership for a reason set out in paragraph (ba)
ii: a provider is not eligible for registration under this Act: .
3: After section 63(b)
ba: that membership may be refused or terminated because of an applicant's, or a member's,—
i: material or persistent breach of a scheme's rules:
ii: failure to take remedial action imposed on that provider by a scheme (whether or not that scheme still exists):
iii: failure to pay a scheme's membership fee:
iv: failure to continue to be a type of financial service provider that may be a member of the scheme: .
4: Replace section 63(g)
g: that the scheme has jurisdiction in respect of—
i: a breach of contract, a statutory obligation, or an industry code; and
ii: any other prescribed matters; and
iii: any other matter provided for in the rules: .
5: Repeal section 63(k)
6: After section 63(r)
s: any other prescribed matters.
7: In section 63
2: The compensation referred to in subsection (1)(i) that the scheme can impose on a member must be able to include, in the case of a complaint relating to a repossession under Part 3A
3: The rules about an approved dispute resolution scheme must be treated as containing any provision that is implied into those rules by regulations made under this Act.
4: A rule about an approved dispute resolution scheme has no effect to the extent that it is inconsistent with any provision implied into the rules by those regulations.
37: Section 66 amended (Minister's consideration of change of rules)
1: In section 66(1) the Minister may the Minister must
2: Replace section 66(3)
3: The Minister must comply with subsection (1) within 45 working days of the notification of the change of rules unless the Minister, within those 45 working days,—
a: requests further information from the person responsible for the scheme (in which case, the Minister must comply with subsection (1) within 45 working days after receipt of that further information); or
b: advises the person responsible for the scheme that a period of more than 45 working days is required to consider the change (in which case, the Minister must specify the time within which he or she will comply with subsection (1)).
38: Section 67 amended (Duty to co-operate and communicate information in certain circumstances)
1: In section 67(a) and with the reserve scheme
2: After section 67(c)
ca: if there is a series of material complaints about a particular creditor under a consumer credit contract or class of such creditors, communicate that fact to the Commerce Commission: .
3: In section 67(d) Financial Markets Authority FMA
4: In section 67
2: In subsection (1)(ca) consumer credit contract
a: has the same meaning as in section 11 of the Credit Contracts and Consumer Finance Act 2003; and
b: includes a credit contract to which Part 3A
39: Subpart 3 of Part 3 repealed
Repeal subpart 3
40: Cross-heading above section 78 amended
In the cross-heading above section 78 and reserve scheme
41: Section 78 amended (Publication of details relating to approved dispute resolution schemes and reserve scheme)
1: In the heading to section 78 and reserve scheme
2: Replace section 78(1)(a)
a: must ensure that the names of approved dispute resolution schemes and the name and business address of the person responsible for each scheme are available for inspection by the public, free of charge, at the head office of the Ministry (during ordinary office hours), and on an Internet site that is publicly available (at all reasonable times): .
3: Repeal section 78(2)
42: Section 78A and cross-heading repealed
Repeal section 78A
43: Section 79 amended (Regulations under this Part)
1: In section 79(1)(a) either an approved dispute resolution scheme or the reserve scheme, an approved dispute resolution scheme
2: After section 79(1)(a)
aa: providing rules for an interim dispute resolution scheme: .
3: After section 79(1)(c)
ca: prescribing matters for the purposes of section 63(1)(g)(ii) and (s)
cb: prescribing provisions to be implied into rules about approved dispute resolution schemes: .
4: After section 79(1A)
1B: The Minister must not recommend the making of regulations under subsection (1)(aa)
a: is satisfied that—
i: members of a scheme that has ceased, or will cease, to be an approved dispute resolution scheme would be, or are, unable to reasonably become members of another approved dispute resolution scheme; and
ii: the interim dispute resolution scheme will be consistent with the purpose of this Part ( see
iii: the interim dispute resolution scheme will be capable of providing a scheme for the purpose of this Part; and
iv: the rules of the interim dispute resolution scheme will comply with section 63; and
b: has consulted the FMA and any other persons that the Minister considers are likely to be substantially affected by the establishment of an interim dispute resolution scheme.
1C: The Minister must not recommend the making of regulations under subsection (1)(ca) or (cb)
1D: However, a failure to consult with the persons referred to in subsection (1B)(b) or (1C)
44: New section 79AA inserted (Appointment of interim dispute resolution scheme)
After section 79
79AA: Appointment of interim dispute resolution scheme
1: The Governor-General may, by Order in Council made on the recommendation of the Minister,—
a: appoint a dispute resolution scheme to fulfil the functions of the interim dispute resolution scheme (with or without conditions) for a term recommended by the Minister:
b: revoke an appointment made under paragraph (a)
2: The Minister may recommend an Order in Council for the purpose described in subsection (1)(a) section 79(1B)
3: The Minister may recommend an Order in Council for the purpose described in subsection (1)(b)
45: Section 79A amended (Pecuniary order for contravening wholesale certification requirement)
1: In section 79A(1) Financial Markets Authority FMA
2: In section 79A(3)(b) or the reserve scheme
46: Section 79B amended (Compensation for contravention of wholesale certification requirement)
In section 79B(2) Financial Markets Authority FMA
47: Consequential amendments to other Acts
Amend the Acts specified in the Schedule OIC LI 2014/202 2014-07-01 Financial Advisers Act 2008 Securities Trustees and Statutory Supervisors Act 2011
48: Consequential revocations
The following are revoked:
a: Financial Service Providers (Appointment of Reserve Scheme) Order 2010
b: Financial Service Providers (Dispute Resolution—Reserve Scheme Fees) Rules 2010
c: Financial Service Providers (Dispute Resolution—Reserve Scheme) Rules 2010 OIC LI 2014/202 2014-07-01 Financial Service Providers (Appointment of Reserve Scheme) Order 2010 Financial Service Providers (Dispute Resolution—Reserve Scheme Fees) Rules 2010 Financial Service Providers (Dispute Resolution—Reserve Scheme) Rules 2010