Financial Market Infrastructures Act 2021

1: Title
This Act is the Financial Market Infrastructures Act 2021.
2: Commencement
1: The following provisions of this Act come into force on the day after the date of Royal assent:
a: Part 1
b: Part 2
c: sections 20 29
d: subpart 2
e: Part 5 sections 127(4)﻿(b)﻿(ii), (c)﻿(ii) and (iii), (d)﻿(i) to (iii), and (e) 130(1)﻿(a), (b), and (d) to (f) and (2)
f: Part 6 section 163
g: Schedule 1
h: Schedule 2
2: The rest of this Act comes into force on the 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 appointing different dates for different purposes.
3: To the extent that this Act is not previously brought into force under subsection (2)
4: An Order in Council made under this section 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.
1: Preliminary provisions and regulator
1: Preliminary provisions
3: Purposes
1: The purposes of this Act are to—
a: promote the maintenance of a sound and efficient financial system (including by responding to threats to the stability of, or confidence in, the whole or a significant part of the financial system); and
b: avoid significant damage to the financial system that could result from problems with an FMI, an operator of an FMI, or a participant of an FMI that threaten the stability of, or confidence in, the whole or a significant part of the financial system; and
c: promote the confident and informed participation of businesses, investors, and consumers in the financial markets; and
d: promote and facilitate the development of fair, efficient, and transparent financial markets.
2: Those purposes are to be achieved by—
a: establishing a system for designating systemically important FMIs and FMIs that apply for designation; and
b: imposing regulatory requirements on designated FMIs; and
c: providing for the supervision of compliance with those requirements by the Reserve Bank of New Zealand and the Financial Markets Authority (acting as the regulator); and
d: conferring certain powers on the regulator to gather information; and
e: conferring certain powers on the regulator to act in respect of distressed FMIs.
3: See section 77 Part 4
4: Overview of this Act
General
1: This Act is about the regulation of financial market infrastructures, which, in this Act, are called FMIs.
2: The regulator of FMIs is the Reserve Bank of New Zealand and the Financial Markets Authority.
3: This Act is divided into 6 Parts. Part 1
4: This Part ( Part 1
a: definitions of terms used in this Act, including the definition of FMI ( section 5
b: transitional, savings, and related provisions ( section 6 Schedule 1
c: the application of this Act to the Crown ( section 7
d: an explanation of the regulator of FMIs ( subpart 2 Part 2
5: Part 2
a: the submission and review of information about FMIs ( sections 14 17
b: the submission and publication of independent reports about FMIs ( sections 18 19 Part 3
6: Part 3
a: how an FMI becomes a designated FMI ( subpart 1
b: standards applying to designated FMIs ( subpart 2
c: the rules of designated FMIs ( subpart 3
d: contingency plans of designated FMIs ( subpart 4
e: provisions to ensure that settlements effected, and certain other things done, under certain designated FMIs are valid and enforceable ( subpart 5
f: investigations, remedial notices, and voluntary undertakings for dealing with contraventions, by operators of designated FMIs, of requirements imposed by or under this Act ( subpart 6 Part 4
7: Part 4
a: gives the regulator power to do the following ( subpart 2
i: give directions to an operator or a participant of the FMI:
ii: remove or appoint a director of an operator of the FMI:
b: enables an operator of the FMI to be made subject to statutory management ( subpart 3 Part 5
8: Part 5
a: penalties for offences and the time for filing charging documents ( subpart 1
b: the process for requiring the payment of pecuniary penalties, the amounts of pecuniary penalties, and the liabilities of operators of FMIs to pecuniary penalties ( subpart 2
c: supplementary provisions relating to directors’ liabilities ( subpart 3 Part 6
9: Part 6
a: supplementary provisions relating to information ( subpart 1
b: supplementary provisions relating to the regulator’s powers ( subpart 2
c: regulations ( subpart 3
d: other final provisions ( subpart 4
e: consequential amendments of enactments ( subpart 5
5: Interpretation
In this Act, unless the context otherwise requires,— advisory committee section 97 clearing
a: the confirming of the transactions (that is, verifying their terms with the parties or other relevant persons):
b: the netting of obligations under the transactions and the establishing of final positions for the purpose of effecting the settlements:
c: in the case of transactions involving futures or options, the daily balancing of profits and losses and the daily calculation of collateral requirements conduct designated FMI section 20 designation notice section 20 director
a: a person occupying the position of director of the body, by whatever name called:
b: if the body does not have directors as such, any trustee, manager, or other person who acts, in relation to the body, in the same way as, or in a way that is similar to the way in which, a director would act if the body were a company incorporated under the Companies Act 1993 disruption distressed
a: an operator of the FMI is insolvent or is likely to become insolvent:
b: without limiting paragraph (a)
c: an operator has acted (or is acting) fraudulently or recklessly:
d: an operator has persistently or seriously contravened a requirement imposed by or under this Act:
e: the FMI is being operated, or activities under the FMI are otherwise being carried out, in a way that is undermining the soundness or efficiency of 1 or both of the following:
i: the FMI:
ii: the whole or a significant part of the financial system:
f: there has been (or is) disruption to activities under the FMI and that disruption—
i: has caused (or is causing) problems for 1 or more of the FMI’s participants or indirect participants that threaten (directly or indirectly) the stability of, or confidence in, the whole or a significant part of the financial system; or
ii: is likely to cause problems for 1 or more of the FMI’s participants or indirect participants that would threaten (directly or indirectly) the stability of, or confidence in, the whole or a significant part of the financial system:
g: there have been (or are) problems with 1 or more of the FMI’s participants or indirect participants and, because of the transactions or other interconnections (direct or indirect) under the FMI between participants or indirect participants, those problems—
i: have caused (or are causing) problems for 1 or more other participants or indirect participants that threaten (directly or indirectly) the stability of, or confidence in, the whole or a significant part of the financial system; or
ii: are likely to cause problems for 1 or more other participants or indirect participants that would threaten (directly or indirectly) the stability of, or confidence in, the whole or a significant part of the financial system document section 4(1) financial markets section 6(1) financial system
a: means the financial system in New Zealand; and
b: includes the financial markets FMA Part 2 FMA Minister Financial Markets Authority Act 2011 FMI
a: means a multilateral system for the clearing, settling, or recording of any of the following:
i: payments:
ii: personal property, or transactions involving personal property, within the financial system:
iii: other transactions within the financial system; and
b: includes (without limitation) a system that is commonly regarded, within the financial system in New Zealand or elsewhere, as a financial market infrastructure, including a financial market infrastructure of any of the following types:
i: a payment system:
ii: a central securities depository:
iii: a securities settlement system:
iv: a central counterparty:
v: a trade repository:
vi: a combination of 2 or more of the types of financial market infrastructure listed in subparagraphs (i) to (v) FMI contingency plan
a: doing 1 or more of the following in relation to activities under the FMI:
i: maintaining their continuity where events that could result in their disruption occur:
ii: mitigating, or otherwise managing, disruption to them:
iii: restoring their continuity following their disruption:
b: restoring the FMI’s financial resources following events that cause them to be depleted:
c: applying the provisions of the FMI’s rules relating to 1 or more of the following:
i: participant default:
ii: indirect participant default:
iii: the allocation of losses among operators, participants, or other persons:
d: if the FMI were to be wound down, ensuring that the winding-down is orderly function home jurisdiction indirect participant
a: is not bound by the FMI’s rules; but
b: participates, or has agreed to participate, in the FMI through an agency or other arrangement that the person has (directly or indirectly) with—
i: an operator of the FMI who acts on the person’s behalf in relation to the FMI; or
ii: a participant of the FMI who acts on the person’s behalf in relation to the FMI indirect participant default
a: the indirect participant is insolvent or is likely to become insolvent:
b: without limiting paragraph (a)
c: any default (however described) under the FMI’s rules has occurred in relation to the indirect participant information insolvency event P
a: an insolvency manager is appointed for P; or
b: a process that is similar to a process for which an insolvency manager may be appointed starts in relation to P in New Zealand or in the jurisdiction under whose law P is incorporated or otherwise established; or
c: P is adjudicated bankrupt under the Insolvency Act 2006
d: P is admitted to the no asset procedure under subpart 4 insolvency manager
a: a liquidator under Part 16
b: an administrator under Part 15A
c: a statutory manager under any of the following:
i: Part 3
ii: Part 5 Banking (Prudential Supervision) Act 1989
iii: subpart 4
iv: subpart 3
d: a receiver appointed in New Zealand for the whole, or substantially the whole, of the assets and undertaking of a person:
e: a receiver appointed for the whole, or substantially the whole, of the assets and undertaking of an operator, a participant, or an indirect participant, where the appointment is made in the jurisdiction under whose law the operator, participant, or indirect participant is incorporated or otherwise established:
f: a person appointed in New Zealand, or in the jurisdiction under whose law the operator, participant, or indirect participant is incorporated or otherwise established, who is similar to a person listed in paragraphs (a) to (e) investigator section 62(2) Minister
a: the RBNZ Minister and the FMA Minister acting jointly, if the recommendation is made by the RBNZ and the FMA acting jointly; or
b: the RBNZ Minister, if the recommendation is made by the RBNZ; or
c: the FMA Minister, if the recommendation is made by the FMA netting
a: whether on a bilateral or multilateral basis; and
b: whether or not through the interposition of an operator of the FMI (whether by novation or otherwise); and
c: whether or not the obligations constitute mutual credits, mutual debts, or other mutual dealings; and
d: whether or not the obligations are denominated in New Zealand currency obligation operator
a: means a person who is wholly or partly responsible to the FMI’s participants (or any of them) for—
i: providing or managing services under the FMI; or
ii: maintaining or administering the FMI’s rules; and
b: if the FMI is a designated FMI, must be read in accordance with section 29(3) operator under statutory management section 90(4) overseas overseas standard
a: a standard, framework, code of practice, or requirement issued under the law of a jurisdiction other than New Zealand; or
b: a recommended practice issued in a jurisdiction other than New Zealand; or
c: a requirement or recommended practice of an international organisation or an overseas national organisation participant
a: means any person who—
i: is bound by the FMI’s rules; and
ii: participates, or has agreed to participate, in the FMI; and
b: includes, if the FMI is a designated FMI, an operator specified in the FMI’s designation notice under section 29(2)﻿(a) participant default
a: the participant is insolvent or is likely to become insolvent:
b: without limiting paragraph (a)
c: the participant has failed, or is likely to fail, to meet an obligation to 1 or more of the following:
i: an operator of the FMI:
ii: another participant of the FMI:
iii: any other person who is bound by the FMI’s rules:
d: any default (however described) under the FMI’s rules has occurred in relation to the participant pure payment system section 10(2) RBNZ ( see Part 2 RBNZ Minister Reserve Bank of New Zealand Act 2021 regulation regulator section 8 requirement section 31 rules
a: means the rules of the FMI—
i: that are evidenced in writing,—
A: whatever they may be called; and
B: whether contained in, or made under, a body’s constitution, an agreement, a procedure, a contract, or any other document; and
ii: that set out (among other things) the following:
A: how the FMI is to be constituted (for example, as a set of arrangements between its participants or as a legal person with whom its participants are to interact):
B: how activities under the FMI are to be carried out:
C: the rights and obligations under the FMI of its operators and participants; and
b: if the FMI is a designated FMI, must be read in accordance with section 35 settlement
a: the making of a payment, or the transfer of the title to, or an interest in, personal property,—
i: that is done in accordance with, or to give effect to, a settlement instruction; and
ii: that is on a gross basis or that uses netting; and
iii: that is by way of a book entry or otherwise; or
b: any other act that, in accordance with an FMI’s rules, discharges an obligation to make a payment or to transfer the title to, or an interest in, personal property settlement instruction
a: that is made in accordance with the FMI’s rules; and
b: that results, or is intended to result, in 1 or more settlements being effected specified operator section 29(1)﻿(c) system systemically important section 28 Section 5 insolvency manager amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Section 5 RBNZ amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Section 5 RBNZ Minister amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Regulator
8: Regulator
For the purposes of this Act, regulator
a: the RBNZ and the FMA acting jointly ( see section 9
b: the RBNZ acting on its own in accordance with section 10(1) or (3)
c: the FMA acting on its own in accordance with section 10(3)
9: Requirement to act jointly
1: The RBNZ and the FMA must carry out the regulator’s functions acting jointly.
2: The requirement to act jointly is subject to section 10(1) and (3)
10: Cases where requirement to act jointly does not apply
1: The regulator’s functions must be carried out by the RBNZ if an FMI is a pure payment system.
2: An FMI is a pure payment system
a: the FMI is a designated FMI and the FMI’s designation notice specifies under section 29(2)﻿(c)
b: the FMI is not a designated FMI but the FMI is a multilateral system solely for the clearing or settlement of payment obligations.
3: The RBNZ and the FMA may agree that one of them is to carry out the regulator’s functions under this Act in relation to—
a: a particular operator of an FMI, or a class of operators:
b: a particular FMI, or a class of FMIs:
c: particular circumstances, or a class of circumstances.
4: The publication requirements in section 151(2) subsection (3)
5: A contravention of an agreement under subsection (3)
11: RBNZ and FMA working together
1: When acting under this Act (whether jointly in accordance with section 9(1) section 10(1) or (3)
a: the RBNZ may have regard to, refer to, or rely on any information, work, or matter held or produced by the FMA in the performance or exercise of its functions under this Act or any other enactment; and
b: the FMA may have regard to, refer to, or rely on any information, work, or matter held or produced by the RBNZ in the performance or exercise of its functions under this Act or any other enactment.
2: The RBNZ and the FMA may enter into a memorandum of understanding setting out—
a: how they intend to work together for the purposes of this Act; and
b: without limiting paragraph (a)
i: make decisions about entering into agreements under section 10(3)
ii: give effect to subsection (1)
3: However, a memorandum of understanding does not limit subsection (1), section 10(3), section 29(2)﻿(c)
4: The publication requirements in section 151(2) subsection (2)
12: General provisions about regulator’s functions and Ministers’ functions
1: The regulator’s functions are as follows:
a: to recommend the designation of FMIs and the amendment or revocation of designation notices ( see subpart 1 Part 3
b: to regulate designated FMIs ( see subparts 2 4 6 Part 3
c: to deal with designated FMIs that are distressed ( see Part 4
d: the other functions of the regulator under this Act.
2: The functions of the FMA Minister and the RBNZ Minister (whether acting jointly or of their own account) are as follows:
a: on the recommendation of the regulator, to declare an FMI to be a designated FMI ( see subpart 1 Part 3 section 20
b: to approve the exercise of powers of the regulator in respect of systemically important FMIs ( see subpart 2
c: to provide advice on declaring an operator of an FMI to be subject to statutory management and on the termination of statutory management, to approve the exercise of powers in respect of an operator of an FMI that is subject to statutory management, to appoint an advisory committee, and to perform or exercise other functions in respect of that statutory management ( see subpart 3
d: the other functions of the Minister or Ministers under this Act.
13: Purposes and principles of exercising powers under this Act (other than Part 4)
1: The powers of the regulator, the FMA Minister, and the RBNZ Minister must be exercised for 1 or more of the purposes set out in section 3
2: In deciding whether to exercise its powers, and in exercising them, the regulator must take into account the following principles that are relevant:
a: the importance of recognising that FMIs can have a key role in maintaining a sound and efficient financial system:
b: the importance of recognising that primary responsibility for ensuring that an FMI is sound and efficient rests with its operators, participants, and indirect participants and those who own or control its operators, participants, and indirect participants:
c: the need for an FMI’s rules to provide, to the extent possible, certainty and predictability about the rights and obligations of the FMI’s participants and indirect participants, especially in the event of a participant default or an indirect participant default:
d: the importance of regulating FMIs in a way that is consistent with international standards for their regulation where those standards are appropriate for conditions in New Zealand:
e: the importance of recognising the diversity of FMIs and of taking into account the circumstances of particular FMIs (while recognising the importance of consistency in the treatment of similar FMIs):
f: the need to avoid unnecessary compliance costs and unnecessary constraints on innovation:
g: the importance of timely, accurate, and understandable information being available to participants, indirect participants, and potential participants or indirect participants, of an FMI to assist them in making informed decisions about their interaction, or potential interaction, with the FMI.
3: This section does not apply to powers under Part 4 see sections 77 78
2: Regulator’s powers to require information, reviews, and independent reports
14: Regulator’s power to require information
1: The regulator may, by notice, require an operator, a participant, or an indirect participant of an FMI to give to the regulator any information relating to the FMI that the regulator reasonably requires for the purposes of, or in connection with, its functions.
2: See section 149
15: Offence for failure to give information
1: An operator, a participant, or an indirect participant who, without reasonable excuse, contravenes a requirement under section 14 section 149
2: See Part 5
16: Regulator’s power to require information to be reviewed
1: This section applies if—
a: information is given to the regulator under section 14
b: the regulator has reasonable grounds to believe that the information is inadequate or inaccurate.
2: The regulator may, by notice, require an operator, a participant, or an indirect participant of the FMI—
a: to obtain a review of the information within the period, and otherwise in the manner, specified in the notice; and
b: to give the results of the review to the regulator.
3: The review must be carried out by a suitably qualified independent person approved by the regulator.
4: See section 149
17: Offence for failure to obtain review
1: An operator, a participant, or an indirect participant who contravenes a requirement under section 16 section 149
2: See Part 5
18: Regulator’s power to require independent report
1: The regulator may, by notice, require an operator of an FMI to give to the regulator a report on a matter relating to the FMI if the regulator reasonably requires the report for the purposes of, or in connection with, its functions.
2: The report must be prepared by a suitably qualified independent person approved by the regulator.
3: See section 149
4: The regulator may, by notice, require the operator to publish the report or part of the report.
5: The notice may specify any of the following:
a: the way in which the report or part of the report must be published:
b: when the report or part of the report must be published and for how long it must remain published:
c: where only part of the report is to be published, which parts must be published or which parts may be withheld from publication.
19: Offence for failure to give or publish report
1: An operator who intentionally or recklessly contravenes a requirement under section 18 section 149
2: See Part 5
3: Designated FMIs
1: Making, revoking, and amending designations
Designations by Minister
20: Designation of FMIs by Minister
The Minister may, in accordance with a recommendation made by the regulator under this subpart,—
a: by notice (a designation notice
b: by notice (a further notice Recommendation for designation by regulator
21: Recommendations by regulator
1: The regulator may recommend that the Minister issue, revoke, or amend a designation notice for an FMI on receiving an application under section 25 section 26
2: This section is subject to section 22
22: Restrictions on recommendations
1: The regulator may only make a recommendation to issue a designation notice on receipt of an application—
a: if the regulator considers that it is appropriate for subpart 5
b: in the case of a recommendation that proposes that the designation notice specify that the FMI is systemically important, if the regulator is satisfied that the FMI is systemically important.
2: The regulator may only make a recommendation to issue a designation notice on its own initiative if the regulator is satisfied that the FMI is systemically important.
3: The regulator may only make a recommendation to amend a designation notice so that it specifies that the FMI is systemically important if the regulator is satisfied that the FMI is systemically important.
23: Matters to which regulator may have regard for purposes of recommendations
In deciding whether to make a recommendation, and in deciding on the terms of the recommendation, the regulator may have regard to the following matters (without limitation):
a: the purpose and scope of the FMI:
b: the FMI’s rules (including whether the rules are appropriate to support settlements that must not be reversed, repaid, recovered, or set aside ( see section 55
c: any laws or regulatory requirements in New Zealand or elsewhere that relate to activities under the FMI and the extent to which the FMI complies with those laws or regulatory requirements:
d: the capability and capacity of the FMI’s operators and the FMI:
e: the financial resources of the operators of the FMI:
f: the importance of the FMI to the financial system:
g: the impact on creditors of participants or indirect participants of the FMI of specifying under section 29(2)﻿(b) section 103A
24: Matters that regulator must take into account for purposes of deciding if FMI is systemically important
In deciding whether an FMI is systemically important, the regulator must take into account the following matters:
a: the FMI’s size, including the number of participants and the number of indirect participants:
b: the types of persons who are participants and indirect participants:
c: the nature and scope of the activities under the FMI, including the way in which, and the extent to which,—
i: the FMI interconnects (directly or indirectly) with other FMIs or other activities within the financial system:
ii: participants and indirect participants transact or otherwise interconnect with each other (directly or indirectly) under the FMI:
d: the way in which, and the extent to which, financial risks are concentrated within the FMI:
e: were activities under the FMI to be disrupted, whether another FMI could promptly and effectively take them over. Process for applications or recommendations on own initiative
25: Application for issue, revocation, or amendment of designation notice
1: An operator of an FMI may apply to the regulator for the issue, revocation, or amendment of a designation notice for the FMI.
2: A person who will be an operator of a proposed FMI may apply to the regulator for the issue of a designation notice for the FMI that will come into force once the FMI is established.
3: The regulator must consider an application that is made.
4: If the regulator decides to accept the application, the regulator must—
a: notify the applicant of the decision; and
b: make a recommendation under section 21
5: If the regulator decides not to accept the application, the regulator must notify the applicant of the decision, and of the reasons for the decision.
6: See section 149
26: Process where regulator makes recommendation on own initiative
1: If the regulator proposes to make a recommendation on its own initiative, the regulator must do the following:
a: notify the operator of the FMI of the proposal, and of the reasons for the proposal:
b: require the operator to publish the proposal, and the reasons for the proposal, on an Internet site that—
i: is maintained by, or on behalf of, the operator; and
ii: is publicly available free of charge:
c: allow the operator and any participants or indirect participants of the FMI to make submissions to the regulator about the proposal:
d: consider any submissions that are made by the operator or those participants or indirect participants:
e: decide whether to go ahead with the recommendation:
f: notify the operator of the decision.
2: An operator must, as soon as practicable, comply with a requirement under subsection (1)﻿(b)
3: See section 149
27: Pecuniary penalty for failure to publish proposal
1: An operator who contravenes section 26(2)
2: See Part 5 General provisions relating to designation notices
28: Meaning of systemically important
1: In this Act, an FMI is systemically important
a: disruption to activities under the FMI could cause problems for 1 or more relevant persons that would threaten the stability of, or confidence in, the whole or a significant part of the financial system:
b: problems with 1 or more relevant persons could, because of the transactions or other interconnections under the FMI between relevant persons, cause problems for 1 or more other relevant persons that would threaten the stability of, or confidence in, the whole or a significant part of the financial system.
2: In this section,—
a: relevant person
b: threats or interconnections may be direct or indirect.
29: Content and publication of designation notice
1: A designation notice must specify the following:
a: the FMI and its operators:
b: the documents that set out the FMI’s rules (whether the documents are referred to by name or description):
c: if the notice specifies that section 103A see subsection (2)﻿(b) specified operator
d: that the FMI is systemically important if the Minister acts on a recommendation by the regulator that the FMI is systemically important.
2: A designation notice may specify 1 or more of the following:
a: that a particular operator of the FMI is also a participant of the FMI:
b: that the specified operator is an operator to whom section 103A
c: that the FMI is a pure payment system:
d: that the FMI is a central counterparty:
e: that subpart 5
f: the class or classes within which the FMI falls for the purposes of any standards issued under section 31
3: In this Act, the operators of a designated FMI are the operators that are specified in its designation notice under subsection (1)﻿(a)
4: The publication requirements in section 151(2) Offence
30: Offence for wrongly holding out system as designated FMI, etc
1: This section applies if a person does any of the following:
a: holds out that a system is a designated FMI when that is not the case:
b: holds out that the person is an operator of a designated FMI when that is not the case:
c: holds out that another person is an operator of a designated FMI when that is not the case.
2: The person commits an offence if the person knows that, or is reckless as to whether, what the person is holding out is not the case.
3: See Part 5
2: Standards for designated FMIs
31: Regulator may issue standards for designated FMIs
1: The regulator may, in accordance with section 34 section 3
2: A standard may do 1 or both of the following:
a: impose requirements on operators of designated FMIs:
b: set out requirements applying to designated FMIs with which their operators must ensure compliance.
3: A standard may—
a: apply to all operators of designated FMIs, a particular operator, or a class of operators:
b: apply to all designated FMIs, a particular designated FMI, or a class of designated FMIs:
c: apply in all circumstances, particular circumstances, or a class of circumstances.
4: Standards issued under this section are 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 The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	publish it on internet sites maintained by, or on behalf of, each of the RBNZ and FMA that are publicly available free of charge •	make hard copies of it available for inspection free of charge and for purchase at a reasonable price •	if it is amended, publish and make available the secondary legislation as amended in the same way 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.
32: Procedure for issuing standards
1: Before issuing a standard (the proposed standard
a: consult the persons, or representatives of the persons, that the regulator considers will be substantially affected by the issue of the proposed standard; and
b: have regard to any relevant overseas standards for the purpose of ensuring that the proposed standard will not apply to a particular operator or designated FMI in an unreasonable way (as compared with other operators or designated FMIs) as a result of the particular operator or designated FMI—
i: being subject to a relevant overseas standard; or
ii: not being subject to a relevant overseas standard; and
c: if a requirement under the proposed standard will apply as referred to in section 34(4)﻿(a) section 34(4)﻿(b)
2: In subsection (1)﻿(b) relevant overseas standard
a: an operator or a designated FMI that is subject to the overseas standard will also be subject to the proposed standard; and
b: the overseas standard covers matters that are the same as, or similar to, those that are covered by the proposed standard.
3: Subsection (1)
a: is only correcting a minor error; or
b: is otherwise of a minor nature only.
33: Pecuniary penalty for contravention of standard
1: An operator who contravenes a standard is liable to a pecuniary penalty.
2: See Part 5
34: Subject matter of standards
1: A standard may deal with, or otherwise relate to, 1 or more of the following matters:
a: the governance of operators or of designated FMIs:
b: the relationship between operators and persons who provide services to operators for the purposes of designated FMIs (including imposing requirements relating to the terms and conditions of contracts between operators and those persons):
c: how operators must provide access to services under designated FMIs, including how persons may become participants of designated FMIs:
d: requirements for capital or liquidity:
e: the management by operators of 1 or more of the following:
i: general business risk:
ii: operational risk:
iii: credit risk:
iv: liquidity risk:
v: custody and investment risk:
vi: legal risk:
vii: cybersecurity risk:
viii: risks arising out of interconnections (direct or indirect) between a designated FMI and other designated FMIs:
ix: risks arising out of interconnections (direct or indirect) between a designated FMI and activities in the financial system that are not activities under designated FMIs:
f: FMI contingency plans, including (without limitation) 1 or more of the following matters:
i: the purposes for which designated FMIs must have FMI contingency plans:
ii: the contents of those plans, for example,—
A: the scenarios the plans must cover; and
B: strategies and methods that must be included in the plans for dealing with those scenarios:
iii: the interaction of those plans with the designated FMI’s rules:
iv: the persons responsible for maintaining, activating, or implementing those plans:
v: arrangements for obtaining the financial resources needed to activate and implement those plans:
vi: the reviewing, updating, or testing of those plans:
g: monitoring by operators of activities under designated FMIs:
h: rules and procedures for managing a participant defaulting on its obligations under the rules of the FMI:
i: the public disclosure of information relating to operators or designated FMIs:
j: restrictions or prohibitions on the activities that a person that is an operator of a designated FMI may carry out otherwise than in their capacity as the operator:
k: requirements relating to 1 or more standards issued by international organisations that impose requirements or provide for recommended practices in relation to FMIs.
2: A standard may specify types of provisions that must, or must not, be included in a designated FMI’s rules.
3: A standard may require operators to give to the regulator reports relating to any of the following matters:
a: disruption to activities under designated FMIs:
b: contraventions of requirements imposed by or under this Act:
c: any other matter prescribed in the regulations.
4: The following applies in relation to a requirement imposed under subsection (1)﻿(k)
a: the requirement may apply in relation to a designated FMI and its operator even if the FMI or operator—
i: operates wholly or substantially only within the financial system in New Zealand; or
ii: for any other reason, would not otherwise be subject to a standard issued by an international organisation; but
b: before issuing a standard under subsection (1)﻿(k) paragraph (a) section 31(1)
i: applying the requirement will help ensure that a proposed standard will not apply to a particular operator or designated FMI in an unreasonable way (as referred to in section 32(1)﻿(b)
ii: applying the requirement will help maintain and enhance New Zealand’s international reputation by adopting, where appropriate in the New Zealand context, international standards:
iii: applying the requirement will help ensure that New Zealand’s law and regulatory requirements for FMIs can be recognised (in whole or in part) as equivalent, or substantially equivalent, to the law and regulatory requirements of 1 or more other jurisdictions.
5: See section 149
3: Rules of designated FMIs
Rules of designated FMIs
35: Designated FMI’s rules
In this Act, a designated FMI’s rules are the rules that are contained in documents specified in its designation notice under section 29(1)﻿(b)
36: Operators must publish copy of rules of designated FMI
1: The operator of a designated FMI must publish a copy of the FMI’s rules (as amended by any rule change that comes into effect under this subpart) on an Internet site that—
a: is maintained by, or on behalf of, the operator; and
b: is publicly available free of charge.
2: However, the regulator may, by notice, authorise the operator to redact information from the published version of the FMI’s rules.
3: This section does not apply to an overseas FMI.
37: Pecuniary penalty for failure to publish copy of rules
1: An operator who contravenes section 36
2: See Part 5 Rule changes of designated FMIs (other than overseas FMIs)
38: Time rule change comes into effect
1: A change to the rules of a designated FMI may come into effect only if the rule change is approved under sections 39 to 42
2: The rule change comes into effect at the time specified in the regulator’s notice of approval of the rule change.
3: The specified time must not be earlier than the time at which the regulator decides to approve the rule change.
4: In specifying the time, the regulator must have regard to—
a: the time requested in the application under section 39(1)﻿(c)
b: the nature of the rule change; and
c: the circumstances of the FMI.
5: This section and sections 39 to 42 see section 44
39: Operator of designated FMI may apply for approval of rule change
1: An operator of a designated FMI may apply to the regulator for approval of a change to the designated FMI’s rules. The application must include—
a: a copy of the proposed rule change; and
b: a description of the rule change and the reasons for the change; and
c: the time at which the operator would like the change to come into effect.
2: The regulator must, within a reasonable time, consider the application.
3: If the regulator decides to approve the rule change, the regulator must send to the applicant a notice of approval of the rule change that—
a: states that the regulator has approved the rule change; and
b: states the time at which the rule change takes effect; and
c: states the reason for deciding on that time (if that time is different from the time requested under subsection (1)﻿(c)
d: includes a description of the rule change.
4: If the regulator decides not to approve the rule change, the regulator must notify the applicant of the decision, and of the reasons for the decision.
5: See section 149
40: Regulator may require change to designated FMI’s rules
1: This section and sections 41 42
a: is required to ensure that the rules comply with any applicable standard issued under section 31
b: is appropriate for the purpose of applying subpart 5
2: The regulator may, by notice,—
a: inform an operator of the designated FMI that the regulator requires a change to the designated FMI’s rules to address the matter concerned, and of the reasons for the requirement; and
b: require the operator to apply under section 39(1)
c: specify the period within which the application must be made (which must be no less than 40 working days after the date of the notice).
3: The operator must apply for approval of the rule change within the specified period.
4: See section 149
41: Regulator’s decision to approve rule change required under section 40
1: If the regulator decides to approve the rule change set out in the application made under section 40(3) section 39(3)
2: To the extent that a rule change approved under this section involves a rule contained in a body’s constitution, the regulator may give a direction concerning the process for amending the constitution (for example, the direction may provide for an amendment to be approved by the body’s board without seeking any further approval from its members).
3: An amendment to the constitution that is made in accordance with the direction must be treated as being effective and binding despite anything to the contrary in the constitution or any enactment, other instrument, trust, or other rule of law, including anything relating to the consent of any person to the making of the amendment.
42: Regulator’s decision not to approve rule change required under section 40
1: If the regulator decides not to approve the rule change set out in the application made under section 40(3)
a: must notify the operator of the decision, and of the reasons for the decision; and
b: for the purpose of addressing the matter concerned, may, by notice,—
i: require the operator to apply under section 39(1)
ii: specify the period within which the application must be made (which must be no less than 20 working days after the date of the notice).
2: The application—
a: must be made within the specified period; and
b: must be treated as if it were an application made under section 40(3) section 41
3: See section 149
43: Offence for contravention of section 40 or 42
1: An operator who intentionally or recklessly contravenes section 40 42 section 149
2: See Part 5 Rule changes of overseas FMIs
44: Changes to rules of designated FMIs that are overseas FMIs
1: This section applies if there is a change to the rules of a designated FMI that is an overseas FMI.
2: Each operator of the designated FMI must ensure that—
a: an instrument setting out the rule change is given to the regulator before the rule change comes into effect; and
b: an instrument that specifies the date on which the rule change comes into effect is given to the regulator before, or as soon as practicable after, the rule change comes into effect.
3: The change to the rules of an overseas FMI comes into effect on the date that is specified in the instrument referred to in subsection (2)﻿(b)
4: See section 149
45: Pecuniary penalty for failure to give rule change instrument to regulator
1: An operator who contravenes section 44
2: See Part 5 Publication requirements relating to rule changes
46: Publication of rule changes
1: This section applies to a rule change that is approved by the regulator under this subpart.
2: The notice of approval of the rule change under section 39(3)
a: is maintained by, or on behalf of, the RBNZ; and
b: is publicly available free of charge.
3: The notice of approval of the rule change under section 39(3)
a: is maintained by, or on behalf of, the FMA; and
b: is publicly available free of charge.
4: Subsection (3)
4: FMI contingency plans
47: Designated FMIs to have FMI contingency plans
1: Each operator of a designated FMI must ensure that the designated FMI has FMI contingency plans—
a: that are comprehensive, adequate, and credible, taking into account the type of FMI concerned and the activities carried out under it; and
b: that are capable of being activated and implemented effectively when appropriate.
2: An operator who contravenes this section is liable to a pecuniary penalty.
3: See Part 5
48: Operator must notify activation of FMI contingency plan
1: When an FMI contingency plan is activated, each operator of a designated FMI must, as soon as practicable, give details of the activation to the regulator.
2: See section 149
3: An operator who intentionally or recklessly contravenes this section (including any applicable requirement under section 149
4: See Part 5
49: Regulator’s power to review FMI contingency plans, etc
1: The regulator may,—
a: by notice, require an operator of a designated FMI to give to the regulator 1 or more of the FMI contingency plans of the designated FMI; and
b: review any plan that is given to the regulator; and
c: by notice, require the operator to meet the regulator’s costs of engaging a suitably qualified person to carry out on the regulator’s behalf, or otherwise to assist with, a review under paragraph (b)
2: See section 149
50: Regulator’s powers in relation to FMI contingency plans
1: Subsection (2)
a: any applicable standard issued under section 31
b: the requirements of section 47(1)
2: The regulator may, by notice,—
a: inform an operator of the designated FMI that the regulator requires a change to the FMI contingency plan to address the matter concerned, and of the reasons for the requirement; and
b: require the operator to give to the regulator for approval a change to the FMI contingency plan to address the matter concerned.
3: In this section and section 51
4: See section 149
51: Regulator’s decision on change submitted by operator
1: If the regulator decides to approve the change given under section 50(2)﻿(b)
a: the regulator must notify the operator of the decision; and
b: the operator must ensure that the change is made promptly.
2: If the regulator decides not to approve the change given under section 50(2)﻿(b)
a: must notify the operator of the decision, and of the reasons for the decision; and
b: for the purpose of addressing the matter concerned, may, by notice to the operator, require a change to the FMI contingency plan in terms specified in the notice.
3: A change under subsection (2)﻿(b)
a: must be given to the regulator within 20 working days after the date of the notice under subsection (2)﻿(b)
b: must be treated as if it were a change given under section 50(2)﻿(b) subsections (1) and (2)
4: See section 149
52: Offence for contravention of sections 49 to 51
1: An operator who intentionally or recklessly contravenes a requirement under sections 49 to 51 section 149
2: See Part 5
5: Validity and enforceability of settlements under designated FMIs, etc
53: Application of this subpart
This subpart applies to a designated FMI only if its designation notice specifies under section 29(2)﻿(e) Settlements and netting
54: Designated FMI’s rules relating to settlements, etc, are valid and enforceable
1: To the extent that they provide for the matters listed in subsection (2)
2: The matters are as follows:
a: the basis on which settlement instructions are given or received:
b: the basis on which settlement obligations are determined and calculated (either on a gross basis or by using netting):
c: the basis on which settlements are effected (either on a gross basis or by using netting):
d: the novation of obligations of a participant:
e: any action to be taken if there is a participant default or an indirect participant default. 1989 No 157 s 156Q
55: Settlements must not be reversed, etc
1: This section applies to a settlement that is effected in accordance with a designated FMI’s rules.
2: The settlement must not be (wholly or partly) reversed, repaid, recovered, or set aside despite any enactment, instrument, trust, or other rule of law to the contrary.
3: Subsection (2)
4: In subsection (3) foreign court foreign proceeding foreign representative 1989 No 157 s 156R 2006 No 57 Schedule 1
56: Effect of insolvency event on settlement
1: If, before a settlement is effected in accordance with a designated FMI’s rules, an insolvency event occurs in relation to a participant of the designated FMI (other than an operator of the FMI) who is bound to the settlement (the insolvent participant section 55(2)
a: the settlement is effected within 24 hours after the time at which the insolvency event occurs (subject to subsection (3)
b: any of the following persons, acting on behalf of the insolvent participant, authorised the settlement instruction that gave rise to the settlement (either individually or as part of a broader authorisation):
i: an insolvency manager appointed for the insolvent participant:
ii: a person who had the authority to authorise the settlement instruction as part of a process in relation to the insolvent participant in New Zealand or elsewhere that is similar to a process for which an insolvency manager may be appointed:
iii: the Assignee nominated under section 59
2: Subsection (1) section 29(2)﻿(d)
3: If the FMI is an overseas FMI, the period that applies under subsection (1)﻿(a)
4: In this section, insolvency event
a: the appointment of an insolvency manager in an overseas jurisdiction; or
b: a process in an overseas jurisdiction. 1989 No 157 s 156S
57: Netting
1: This section applies to any netting that is done in accordance with a designated FMI’s rules.
2: The netting is valid and enforceable despite any enactment, instrument, trust, or other rule of law to the contrary.
3: The following enactments do not apply to the netting:
a: subpart 20 sections 310 to 310O
b: sections 254 to 262
4: However, the following enactments may apply to a net amount that is payable by a participant of the designated FMI to another participant of the designated FMI and that results from the netting:
a: section 239AEG 310(1)
b: section 254(1) 1989 No 157 ss 156T 156U
58: Underlying transactions, etc
1: Sections 54 to 57
a: the application of any enactment or rule of law to an underlying transaction:
b: a person from taking a proceeding against another person for fraud or dishonesty if the remedy sought or obtained does not affect the application of sections 54 to 57
2: If a person brings a proceeding under any enactment or rule of law about an underlying transaction, that person may produce evidence of a settlement before the court for the purpose of proving that—
a: a participant of a designated FMI received value by means of that settlement; and
b: the value received was an element of the underlying transaction.
3: Neither section 292(4A) section 196
a: an underlying transaction:
b: a settlement that is effected in accordance with a designated FMI’s rules.
4: In this section,— enactment
a: sections 56 292 297 298
b: section 194 underlying transaction
a: means a transaction that gives rise to a settlement or a settlement obligation; but
b: does not include the following:
i: a settlement instruction:
ii: a settlement that is effected in accordance with a designated FMI’s rules:
iii: any novation of obligations of a participant of a designated FMI that is completed in accordance with the designated FMI’s rules. 1989 No 157 s 156V
59: Interrelationships with other enactments
1: The following enactments prevail over sections 54 to 57
a: sections 122(8) 127(4) Banking (Prudential Supervision) Act 1989
b: sections 42(8) 44(4)
2: This subpart prevails over the Insolvency (Cross-border) Act 2006 1989 No 157 s 156W Section 59(1)﻿(a) amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021 Other provisions
60: Transfer of personal property in accordance with designated FMI’s rules effective
1: If the title to, or an interest in, personal property is transferred in accordance with a designated FMI’s rules, a person may not refuse to take an action on the ground that the transfer is not effective.
2: This section does not affect—
a: a right that a person has to refuse to take an action on any other ground; or
b: section 45G(3) of the Reserve Bank of New Zealand Act 1964 section 84
3: Section 45I of the Reserve Bank of New Zealand Act 1964 section 84
4: Except as provided in this section, this section applies despite anything to the contrary in any enactment, instrument, trust, or other rule of law. 1989 No 157 s 156X
61: Operators to be notified of insolvency event
1: This section applies if an insolvency event occurs in relation to a participant of a designated FMI (the insolvent participant
2: Each of the following participants of the designated FMI must notify each operator of the designated FMI of the insolvency event unless the operator is already aware of it:
a: the insolvent participant:
b: any other participant who is a party to settlements with the insolvent participant under the designated FMI.
3: The notification must be given as soon as practicable after the participant concerned becomes aware of the insolvency event.
4: It is sufficient compliance with the requirement of subsection (2)
5: A participant who contravenes subsection (2)
6: See Part 5 1989 No 157 s 156ZK
6: Investigations, remedial notices, and voluntary undertakings
Investigations
62: Regulator may appoint investigator
1: This section applies if the regulator has reasonable grounds to suspect that an operator of a designated FMI—
a: has contravened (or is contravening), or is likely to contravene, a requirement imposed by or under this Act; or
b: has committed (or is committing), or is likely to commit, an offence under this Act.
2: The regulator may appoint a person (an investigator
3: The investigator must be an employee of the RBNZ or the FMA or any other person that the regulator is satisfied is suitably qualified.
63: Investigator’s powers
1: For the purposes of an investigation, an investigator may,—
a: by notice, require any person to do 1 or more of the following within the period, and in the way, specified in the notice:
i: submit to the investigator any information relating to the operator or the designated FMI:
ii: produce for inspection by the investigator any documents relating to the operator or the designated FMI that are in the custody or under the control of the person:
iii: if necessary, reproduce in usable form any information recorded or stored on those documents:
b: take copies of documents produced for inspection under paragraph (a)
c: enter and search any place, vehicle, or thing if—
i: the occupier of the place consents or the person in charge of the vehicle or thing consents; or
ii: the investigator obtains a warrant under section 64
2: An investigator who exercises powers under this section must, if requested, produce the instrument of the investigator’s appointment.
3: Part 4 subsection (1)﻿(c)
64: Application for warrant
1: An investigator may apply to an issuing officer for a warrant in accordance with subpart 3
2: The issuing officer may issue a warrant to the investigator if satisfied that there are reasonable grounds to—
a: suspect that a person—
i: has contravened (or is contravening), or is likely to contravene, a requirement imposed by or under this Act; or
ii: has committed (or is committing), or is likely to commit, an offence under this Act; and
b: believe that the search will find evidential material in or on or part of the place, vehicle, or thing.
65: Offences relating to investigations
1: A person who intentionally or recklessly contravenes a requirement imposed under section 63(1)﻿(a)
2: A person who hinders, obstructs, or delays an investigator in carrying out an investigation commits an offence if the person—
a: intends to hinder, obstruct, or delay the investigator; or
b: is reckless as to whether the person hinders, obstructs, or delays the investigator.
3: See Part 5 Remedial notices and plans
66: Regulator may require operator to take action in relation to contravention of this Act
1: This section applies if the regulator has reasonable grounds to believe that an operator of a designated FMI has contravened (or is contravening), or is likely to contravene, a requirement imposed by or under this Act.
2: The regulator may, by notice (a remedial notice
a: to take specified actions within a specified period—
i: to address the cause, or to remedy or mitigate the consequences, of the contravention; or
ii: to ensure that the contravention does not occur or recur; or
b: to give to the regulator a plan (a remedial plan
3: The remedial plan must set out the following:
a: actions that the operator will take—
i: to address the cause, or to remedy or mitigate the consequences, of the contravention; or
ii: to ensure that the contravention does not occur or recur:
b: an appropriate timetable for taking the proposed actions to ensure that they are taken as soon as practicable:
c: steps that the operator will take to keep the plan current:
d: any other matters required by the remedial notice.
67: Approval, amendment, or rejection of remedial plan
1: If an operator gives a remedial plan to the regulator, the regulator may—
a: approve the remedial plan; or
b: require the operator to amend the remedial plan and resubmit it to the regulator by a specified date for approval or rejection; or
c: reject the remedial plan.
2: If the regulator requires the operator to amend a remedial plan given to the regulator, the operator must, within the time specified by the regulator, give to the regulator an amended remedial plan that addresses the matter required to be amended.
3: If the regulator approves the remedial plan (whether as first provided or after amendment), the operator must take all practicable steps to comply with the remedial plan.
4: A remedial plan that has been approved by the regulator may be varied at any time by agreement between the operator and the regulator.
5: Nothing in this section limits the regulator’s power to issue a further remedial notice under section 66(2)﻿(a)
68: Other provisions relating to remedial notices and plans
1: Neither a remedial notice nor a remedial plan may require the operator to pay compensation.
2: A remedial notice must set out the reasons for which it is given.
3: See section 149
69: Offence for contravention of remedial notice, failure to give amended remedial plan, or failure to take steps to comply with remedial plan
1: An operator who intentionally or recklessly contravenes a remedial notice (including any applicable requirement under section 149 section 67(2) or (3)
2: See Part 5 Voluntary undertakings
70: Regulator may accept voluntary undertaking
1: The regulator may accept a written undertaking from an operator of a designated FMI about a matter in relation to which the regulator is performing or exercising any of its functions under this Act.
2: An undertaking may include (without limitation) an undertaking from the operator to—
a: pay compensation to any person; or
b: take specified action to address the cause, or to remedy or mitigate the consequences of, a contravention (or likely contravention) of a requirement imposed by or under this Act, or to ensure that the contravention does not occur or recur; or
c: pay an amount to the regulator in lieu of a pecuniary penalty.
71: Consequences of accepting undertaking
1: If the regulator accepts an undertaking,—
a: no criminal proceedings may be brought or continued by the regulator against the operator, or any other person, in relation to a contravention to which the undertaking relates:
b: no application under section 130
2: Subsection (1)
72: Undertakings that include payment of money
1: If the undertaking includes the payment of an amount in lieu of a pecuniary penalty,—
a: the amount must be paid into a Crown Bank Account (after deducting the regulator’s costs incurred in connection with the matter); and
b: the regulator must give notice of the payment, including—
i: a statement of the amount to be paid; and
ii: a brief description of the contravention to which the undertaking relates.
2: The publication requirements in section 151(2)
3: However, section 151(2)﻿(a)
73: Operator may withdraw or amend undertaking
The operator may withdraw or amend the undertaking only with the regulator’s consent.
74: Enforcement of voluntary undertakings
1: The regulator may apply to the High Court for an order under this section if the regulator—
a: has accepted an undertaking under section 70
b: is satisfied that the operator has contravened the undertaking.
2: The court may make an order directing the operator to do 1 or more of the following:
a: comply with the undertaking:
b: pay to the Crown an amount representing (wholly or partly) any financial benefit that the operator has received because of the contravention of the undertaking:
c: pay compensation to any person.
3: The order may include consequential directions.
75: Court must take into account certain matters
The court must, before making the order, take into account the following:
a: the nature and extent of the contravention of the undertaking:
b: the nature and extent of any loss or damage incurred by any person as a result of the contravention:
c: the circumstances in which the contravention occurred (including whether it was intentional, inadvertent, or caused by negligence):
d: any other matters the court considers relevant.
4: Dealing with systemically important FMIs that are distressed, etc
1: Application and purposes
76: Application of this Part
This Part applies to an FMI only if—
a: it is a designated FMI; and
b: its designation notice specifies that it is systemically important.
77: Purposes for which powers under this Part may be exercised
The regulator’s powers under this Part may be exercised for 1 or more of the following purposes:
a: maintaining the continuity of activities under systemically important FMIs, including the following:
i: mitigating, or otherwise managing, disruption to activities:
ii: restoring the continuity of activities following disruption to them:
iii: moving activities from one FMI to another FMI following disruption to them or a threat of disruption to them:
b: otherwise avoiding threats to the stability of, or confidence in, the financial system as described in section 28(1)﻿(a)
i: removing, mitigating, or otherwise managing the threats:
ii: restoring, mitigating, or otherwise managing any resulting loss of stability of, or confidence in, the financial system:
c: without limiting paragraphs (a) and (b)
d: in the case of a systemically important overseas FMI, furthering the objective of any of the following:
i: any process or action related to an insolvency event that is being carried out (or has been carried out) in relation to any operator of the FMI in its home jurisdiction:
ii: any other judicial or regulatory process or action that is being carried out (or has been carried out) in relation to any operator of the FMI in its home jurisdiction.
78: Principles for exercising powers under this Part
1: In deciding whether to exercise its powers under this Part, and in exercising them, the regulator must take into account the following principles that are relevant:
a: the importance of recognising that primary responsibility for ensuring that an FMI is sound and efficient rests with its operators, participants, and indirect participants and those who own or control its operators, participants, and indirect participants:
b: the need for an FMI’s rules to provide, to the extent possible, certainty and predictability about the rights and obligations of the FMI’s participants and indirect participants, especially in the event of a participant default or an indirect participant default:
c: the importance of minimising costs and uncertainty for an FMI’s participants and indirect participants, and the creditors of an operator of the FMI, where this is consistent with the purposes set out in section 77
d: the need to protect the interests of an FMI’s participants and indirect participants, and the creditors of an operator of the FMI, where this is consistent with the purposes set out in section 77
e: the importance of timely, accurate, and understandable information being available to an FMI’s participants and indirect participants, and the creditors of the operator of the FMI, to keep them informed about progress in acting in relation to an FMI or operator under this Part and how they may be affected by the exercise of powers under this Part:
f: in the case of a systemically important overseas FMI, the importance of co-operating with regulators or other authorities that are carrying out (or have carried out) a process or an action referred to in section 77(d)
g: the importance of avoiding financial risk to the Crown resulting from a distressed FMI, other than financial risk associated with the Crown being a participant or an indirect participant of the FMI.
2: Subsection (1)﻿(b) section 100
2: Directions to operators or participants and removal of directors
79: Application of this subpart
1: This subpart applies if the regulator has reasonable grounds to believe that—
a: an FMI is distressed; or
b: it is appropriate for the regulator to exercise any of its powers under this subpart in relation to an operator of an overseas FMI for the purpose of furthering the objective of any process or action referred to in section 77(d)
2: The regulator must not exercise a power under this subpart in relation to an operator or a participant of the FMI unless the regulator has reasonable grounds to believe that any FMI contingency plans or rules of the FMI of which the regulator is aware—
a: are inapplicable to, or insufficient for addressing, the matter that the exercise of the power is intended to address; or
b: have not been implemented appropriately, or at all, for addressing that matter.
3: Before exercising a power under this subpart, the regulator must consider whether it would be more appropriate to exercise its powers under sections 66 67
4: The regulator may exercise a power under section 80 85 87
a: the RBNZ Minister and the FMA Minister acting jointly, if the power is exercised by the RBNZ and the FMA acting jointly; or
b: the RBNZ Minister, if the power is exercised by the RBNZ; or
c: the FMA Minister, if the power is exercised by the FMA.
80: Directions to operator
1: The regulator may, by notice (a direction notice
2: A direction may require the operator to do 1 or more of the following in accordance with the direction:
a: consult the regulator:
b: ensure that a specified person does not take part in activities, or the management of activities, under the FMI except with the permission of the regulator and only so far as that permission extends:
c: take action to remedy, or mitigate the consequences of, any of the following:
i: any fraudulent or reckless act of the operator:
ii: any contravention of a requirement imposed by or under this Act that has been committed by the operator:
iii: any other event or circumstance that has resulted in the FMI being distressed:
d: act, or not act, under any FMI contingency plan of the FMI:
e: otherwise carry out, or stop carrying out, any activities.
3: A direction may not require the operator to pay compensation.
4: A direction notice may not require the operator to act, or not act, if that would result in the operator breaching the rules of the FMI.
5: A direction notice must state the reasons for which it is given.
81: Giving and complying with direction does not place person in contravention, etc
1: The giving of a direction notice under section 80
a: place any person in contravention of any enactment, instrument, trust, or other rule of law, or make any person liable for a civil wrong; or
b: entitle any person—
i: to require the payment or performance of a liability or an obligation that does not otherwise arise for payment or performance; or
ii: to exercise a right that does not otherwise become exercisable; or
iii: to deny a liability or an obligation that the person is not otherwise entitled to deny; or
c: invalidate or discharge an instrument or any provision of an instrument.
2: In this section, instrument
82: Power to make direction notice confidential
1: The regulator may, by notice (a confidentiality notice section 80
2: The regulator may issue a confidentiality notice on its own initiative or on the application of any person.
3: The regulator may issue a confidentiality notice on the terms and conditions (if any) that it thinks fit.
4: The prohibition in a confidentiality notice has effect for the period specified in the notice (which must not exceed 3 years).
83: Disclosure with regulator’s consent
1: A confidentiality notice does not prohibit the disclosure of any information by a person if the disclosure is with the regulator’s consent.
2: For the purposes of subsection (1)
3: It is reasonable for the regulator to withhold its consent if it considers that the disclosure of the information would be likely to—
a: prejudice the maintenance of the law, including the prevention, investigation, and detection of contraventions of this Act; or
b: unreasonably prejudice the commercial position of an operator; or
c: be inconsistent with the purposes set out in section 77
4: Subsection (3)
84: Offences for contravention of direction notice or confidentiality notice
1: An operator who intentionally or recklessly contravenes a direction notice under section 80
2: A person who intentionally or recklessly contravenes a confidentiality notice commits an offence.
3: See Part 5
85: Direction to participant to comply with FMI’s rules
1: The regulator may, by notice (a direction notice
2: The direction notice must state the reasons for which it is given.
86: Offence for contravention of direction notice
1: A participant who intentionally or recklessly contravenes a direction notice under section 85
2: See Part 5
87: Removal of director
1: The regulator may do 1 or both of the following in relation to an operator of an FMI whose home jurisdiction is New Zealand:
a: remove a director of the operator:
b: appoint a person (with that person’s agreement) as a director of the operator.
2: This section and sections 88 89
88: Process if regulator proposes to exercise power to remove director
1: The regulator must do the following if it proposes to exercise a power under section 87
a: notify each relevant person of the proposal, and of the reasons for the proposal:
b: allow each relevant person to make submissions to the regulator about the proposal:
c: consider any submissions that are made:
d: decide whether to go ahead with the proposal.
2: In this section, each of the following is a relevant person
a: in relation to the power under section 87(1)﻿(a)
b: in relation to the power under section 87(1)﻿(b)
3: See section 149
89: How power to remove director is exercised
1: A power under section 87(1)
a: the director or the person to be appointed (as the case may be); and
b: if applicable, the Registrar of Companies.
2: A notice given under subsection (1)﻿(b) section 159 section 152
3: Statutory management
Making FMI operator subject to statutory management
90: Power to make operator subject to statutory management
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the regulator,—
a: declare that an operator of an FMI is subject to statutory management; and
b: appoint 1 or more persons as statutory manager or statutory managers of the operator for a specified period.
2: The order must specify the date on which, and the time at which, it comes into force.
3: If the order appoints 2 or more persons as statutory managers,—
a: the order must state whether the powers of a statutory manager are to be exercised by those persons acting jointly or may be exercised individually; and
b: references in this Act to a statutory manager include references to the statutory managers.
4: In this Act, operator under statutory management
5: The publication requirements in section 151(2)
91: Regulator’s recommendation under section 90
1: The regulator may make a recommendation under section 90
a: the FMI is distressed; or
b: the operator has contravened a direction given to the operator under section 80
c: if the FMI is an overseas FMI, it is appropriate for the regulator to make the recommendation for the purpose of furthering the objective of any process or action referred to in section 77(d)
2: The regulator must not make the recommendation unless the regulator has reasonable grounds to believe that any FMI contingency plans or rules of the FMI of which the regulator is aware—
a: are inapplicable to, or insufficient for addressing, the matter that is intended to be addressed by making the operator subject to statutory management; or
b: have not been implemented appropriately, or at all, for addressing that matter.
3: The definition of distressed in section 5 paragraph (d)
92: Statutory management of operator whose home jurisdiction is not New Zealand
If the home jurisdiction of an operator under statutory management is not New Zealand, this subpart applies only to the operator’s property, rights, assets, and liabilities relating to its New Zealand business or, if the operator has business undertakings unrelated to the FMI, that part of its New Zealand business that relates to the FMI. Conduct of statutory management: purposes, duties, and principles
93: Purposes of statutory management
The purposes of a statutory management are those listed in section 77
94: General duties of statutory manager
1: A statutory manager must,—
a: as quickly and efficiently as is reasonably practicable,—
i: identify the problems relating to the FMI, or to the operator under statutory management, that need to be dealt with if the purposes of the statutory management are to be achieved; and
ii: deal with those problems to achieve those purposes; and
b: where consistent with the purposes of the statutory management, conduct the statutory management in the way that best protects the interests of the FMI’s participants and indirect participants and of the creditors of the operator under statutory management.
2: The statutory manager may, under subsection (1)﻿(b) section 103
95: Principles for statutory management
A statutory manager must, in conducting the statutory management, have regard to—
a: the following principles:
i: the importance of minimising costs and uncertainty for the FMI’s participants and indirect participants and the creditors of the operator under statutory management:
ii: the importance of ensuring that any losses arising from the problems referred to in section 94(1)﻿(a)
iii: the importance of consulting the FMI’s participants and indirect participants whenever reasonably practicable:
b: the advice of the regulator:
c: the advice of any advisory committee.
96: Other duties of statutory manager
1: A statutory manager must do the following in relation to the conduct of the statutory management:
a: consult the regulator as and when required by the regulator:
b: comply with any directions given to the statutory manager by the regulator.
2: The regulator may require a statutory manager to give to the regulator, or to other persons specified by the regulator, reports about—
a: the conduct of the statutory management; or
b: otherwise the state of the affairs or business of the operator under statutory management.
3: See section 149
4: A statutory manager must provide any information that an advisory committee reasonably requires about—
a: the conduct of the statutory management; or
b: otherwise the state of the affairs or business of the operator under statutory management.
5: See also section 101
97: Advisory committee
1: The Minister may, in accordance with a recommendation of the regulator, by notice to a statutory manager (the appointment notice
2: The role of the advisory committee is as follows:
a: to advise the statutory manager on the conduct of the statutory management:
b: to do any other things specified by the Minister, from time to time, by notice to the committee.
3: The appointment notice must specify the members of the advisory committee and the periods of their appointments.
4: The Minister may, in accordance with a recommendation of the regulator, by notice to the statutory manager, revoke or modify the appointment notice (including for the purpose of adding a new member to the advisory committee or extending the period of a member’s appointment).
5: The publication requirements in section 151(2) subsection (2)﻿(b) or (4)
98: Terminating appointment, or resignation, of member of advisory committee
1: The Minister may, in accordance with a recommendation of the regulator, terminate the appointment of a member of the advisory committee.
2: The regulator may make a recommendation only if satisfied of 1 or more of the following:
a: the member is unable to perform the role of the office:
b: the member is bankrupt:
c: there has been neglect of duty, or other misconduct, by the member.
3: A member may resign from the advisory committee by notice to—
a: the RBNZ Minister and the FMA Minister, if the member was appointed by those Ministers acting jointly; or
b: the RBNZ Minister, if the member was appointed by the RBNZ Minister; or
c: the FMA Minister, if the member was appointed by the FMA Minister. Conduct of statutory management: application of FMI’s rules
99: Application of FMI’s rules
1: The FMI’s rules continue to apply, and activities may continue to be carried out in accordance with those rules, while an operator is subject to statutory management.
2: Without limiting subsection (1)
a: payments:
b: personal property, or transactions involving personal property, within the financial system:
c: other transactions within the financial system.
3: See also subpart 5
100: Statutory manager may decide that provision of rules is not to apply
1: Despite section 99
a: generally; or
b: in relation to a particular transaction, circumstance, or other matter; or
c: in relation to a particular description of a transaction, circumstance, or other matter.
2: Before making that decision, the statutory manager must—
a: consult the regulator; and
b: be satisfied that making the decision is for 1 or more of the purposes set out in section 77
3: The statutory manager is not required to consult the FMI’s participants about that decision, but the statutory manager must,—
a: if reasonably practicable, give reasonable notice to the FMI’s participants of the proposed decision and the reasons for that decision before the decision is made; or
b: give notice to the FMI’s participants of the decision and the reasons for the decision as soon as practicable after the decision is made.
4: If the home jurisdiction of an operator under statutory management is not New Zealand, a decision that a provision of the rules is not to apply may apply only in relation to the operator’s New Zealand business.
101: Statutory manager must pay calls, debts, and claims arising under FMI’s rules
1: The statutory manager must continue to pay creditors of the operator under statutory management who have calls, debts, or claims arising under the FMI’s rules (subject to any loss allocation rules that apply under the FMI’s rules).
2: This section applies subject to a decision made under section 100
3: See section 113 Conduct of statutory management: new operator schemes
102: Purpose of new operator schemes
The powers of a statutory manager under sections 103 to 106
103: Making of new operator scheme
1: A statutory manager may make a scheme (a new operator scheme new operator
a: property, rights, powers, and privileges of the operator under statutory management:
b: obligations and liabilities of the operator under statutory management.
2: A new operator scheme may set out the things to be transferred in 1 or more of the following ways:
a: by specifying or describing them in particular:
b: by identifying them generally by reference to, or by reference to a specified part of, the business undertaking of the operator under statutory management:
c: by specifying the way in which they are to be determined.
3: A new operator scheme may make incidental, supplemental, consequential, or transitional provisions in connection with the transfers provided for by the scheme.
4: A new operator scheme may include 1 or more of the following types of provisions in relation to a transfer:
a: provision for the new operator to be treated as the same person in law as the operator under statutory management for specified purposes:
b: provision for instruments made, transactions effected, or other things done by or in relation to the operator under statutory management to be treated as made, effected, or done by or in relation to the new operator:
c: provision for references in instruments to the operator under statutory management, or to an employee or office holder of the operator under statutory management, to have effect with the modifications specified in the scheme:
d: if the transfer relates to contracts of employment with the operator under statutory management, provision that the transfer does not terminate any of those contracts and that periods of employment with the operator under statutory management are to count for all purposes as periods of employment with the new operator:
e: provision for proceedings commenced by or against the operator under statutory management to be continued by or against the new operator:
f: provision for a conviction, ruling, order, or judgment in favour of, or against, the operator under statutory management to be enforced by, or against, the new operator.
5: Subsection (4) subsection (3)
6: If the operator under statutory management is a party to 2 or more contracts with a particular participant ( P
a: all of the contracts with P are transferred under the new operator scheme; or
b: none of the contracts with P are transferred.
104: Consent required to make new operator scheme
1: A new operator scheme may be made only with—
a: the consent of the new operator; and
b: the consent of the regulator.
2: The provisions of any enactment (apart from subsection (1)
3: In subsection (2) consent
105: Effect of new operator scheme
1: A new operator scheme takes effect at the date and time specified in the consent of the regulator under section 104(1)﻿(b)
2: The provisions of a new operator scheme made and consented to in accordance with sections 103 104
3: The making, implementation, and operation of a new operator scheme does not of itself—
a: place any person in contravention of any enactment, instrument, trust, or other rule of law, or make any person liable for a civil wrong; or
b: unless the rules of the FMI specify otherwise, entitle any person—
i: to require the payment or performance of a liability or an obligation that does not otherwise arise for payment or performance; or
ii: to exercise a right that does not otherwise become exercisable; or
iii: to deny a liability or an obligation that the person is not otherwise entitled to deny; or
c: invalidate or discharge an instrument or any provision of an instrument.
4: In subsection (3) instrument
106: Transfer of property subject to security
1: A statutory manager may make a new operator scheme that transfers any property despite the existence, or the terms and conditions, of any security over the property in favour of any other person.
2: However, any property that is transferred under a new operator scheme that is subject to a security in favour of any other person continues to be subject to the security.
3: Sections 103 105
107: Registers
1: The Registrar-General of Land or any other person charged with keeping records or registers is not required to change the name of the operator under statutory management to the new operator in the records or registers, or in a document, just because of a transfer effected by a new operator scheme.
2: If the new operator presents an instrument that meets the following requirements to a Registrar or another person, the presentation of that instrument is, in the absence of proof to the contrary, sufficient evidence that the property has been transferred to the new operator:
a: the instrument is executed, or purported to be executed, by the new operator:
b: the instrument relates to property held by the operator under statutory management immediately before the new operator scheme took effect:
c: the instrument is accompanied by a certificate by the new operator that the property was transferred to the new operator under this section.
3: In this section, instrument
a: an instrument made under an enactment:
b: the FMI’s rules:
c: an agreement or any other document. Application of provisions of Corporations (Investigation and Management) Act 1989
108: Moratorium
1: Section 42
2: Section 42(1)﻿(a), (b), and (d) to (h) subsection (1)
a: affect the application of sections 99 to 101
b: affect the application of subpart 5 Part 3
c: prevent a person from doing anything specified in section 42(1)﻿(a), (b), or (d) to (h)
3: See also sections 125 126
109: Power of statutory manager to sell business undertaking of operator under statutory management, etc
1: Section 50(1) and (2)
2: A statutory manager may do the following only with the consent of the regulator:
a: sell or otherwise dispose of the whole or any part of the business undertaking of the operator under statutory management under section 50(1) subsection (1)
b: sell or otherwise dispose of any shares of a body corporate formed and registered under section 50(2)﻿(a) subsection (1)
c: sell or otherwise dispose of the whole or any part of the business undertaking of a body corporate formed and registered under section 50(2)﻿(a) subsection (1)
3: The provisions of any enactment (apart from this Act), or of any agreement, that require a consent for a sale or other disposition referred to in subsection (2)
4: In subsection (3) consent
5: If the operator under statutory management is a party to 2 or more contracts with a particular participant ( P
a: includes all of the contracts with P; or
b: does not include any of the contracts with P.
110: Ministers’ approval
The consent of the regulator under section 109
a: the RBNZ Minister and the FMA Minister acting jointly, if the consent is to be given by the RBNZ and the FMA acting jointly; or
b: the RBNZ Minister, if the consent is to be given by the RBNZ; or
c: the FMA Minister, if the consent is to be given by the FMA.
111: Body corporate formed and registered also subject to statutory management
If a body corporate is formed and registered under section 50(2)﻿(a) section 109(1)
a: the body corporate is subject to statutory management under this subpart as if it had been declared to be so by an order under section 90
b: the body corporate has the same statutory manager as the operator under statutory management; and
c: this subpart applies (with any necessary modifications) as if the body corporate were an operator under statutory management.
112: Applicable provisions of Corporations (Investigation and Management) Act 1989
The following provisions of the Corporations (Investigation and Management) Act 1989
a: section 43(1) and (4)
b: section 44 section 114(1)
c: section 45
d: section 46
e: section 47 section 114(2)
f: section 48 section 113
g: section 49
h: section 51
i: section 52 section 114(3)
j: section 53
k: section 54
l: section 55
m: section 58
n: section 59
o: section 61
p: section 64
q: section 65
r: section 66
s: section 67
t: section 69 section 114(4)
u: sections 71 71A
v: section 72
113: Modifications relating to power to pay creditors and compromise claims
1: Section 48 section 112(f) see instead section 101
2: In exercising a power under section 48 section 112(f)
3: See section 77
4: If the regulator gives approval,—
a: the regulator must provide a report, setting out the reasons for giving the approval (including why giving the approval is appropriate), to—
i: the RBNZ Minister and the FMA Minister, if the approval is given by the RBNZ and the FMA acting jointly; or
ii: the RBNZ Minister, if the approval is given by the RBNZ; or
iii: the FMA Minister, if the approval is given by the FMA; and
b: the Minister who receives a report (or, in the case of a report provided to the Ministers under paragraph (a)﻿(i)
5: An approval—
a: may relate to a particular call, debt, or claim, or to a class of calls, debts, or claims; and
b: may apply to a particular operator of an FMI under statutory management or to statutory managements under this subpart generally.
6: Nothing in this section prevents the statutory manager from making any payment in the ordinary course of business of the operator under statutory management.
114: Other modifications to Corporations (Investigation and Management) Act 1989
1: Section 44 section 112(b)
2: The power under section 47 section 112(e)
3: Section 52 section 112(i)
a: the statutory manager’s power to apply, take steps, or make a recommendation under section 52(1) or (2)
b: in section 52(2) and (3)
i: the RBNZ Minister and the FMA Minister acting jointly, if the approval referred to in paragraph (a)
ii: the RBNZ Minister, if the approval is given by the RBNZ; or
iii: the FMA Minister, if the approval is given by the FMA.
4: Section 69 section 112(t)
a: the reference to a person being guilty of an offence includes a person being liable to a pecuniary penalty under this Act:
b: in relation to an offence, or to a liability to a pecuniary penalty, under this Act, the duty to report the matter to the Solicitor-General includes a duty also to report the matter to the regulator.
115: Offences relating to statutory management
1: A person who contravenes section 43(1) section 112(a)
2: Subsection (1) does not prevent the issue of an injunction, or the making of any order, to prevent property or assets from being removed from New Zealand.
3: A person commits an offence if the person,—
a: with intent to defeat the purposes of this Act, or the Corporations (Investigation and Management) Act 1989
i: destroys, alters, or conceals any document relating to an operator under statutory management; or
ii: sends or attempts to send out of New Zealand any document relating to an operator under statutory management; or
b: fails or refuses to answer, to the best of the person’s knowledge and ability, any question that the person is asked by a statutory manager about—
i: any document relating to the operator under statutory management; or
ii: any property; or
c: intentionally or recklessly gives a false answer to any question referred to in paragraph (b)
4: If, in a proceeding under subsection (3)﻿(a) Corporations (Investigation and Management) Act 1989
5: See Part 5 Termination of statutory management or of statutory manager’s appointment
116: Termination of statutory management
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the regulator, declare that an operator under statutory management is to cease to be subject to statutory management.
2: The order must specify the date on which, and the time at which, it comes into force.
3: An operator under statutory management ceases to be subject to statutory management if the operator is put into liquidation on the application of the statutory manager.
4: The publication requirements in section 151(2)
117: Effect of termination of statutory management
1: If an order is made under section 116(1) section 116(3)
a: the operator under statutory management ceases to be subject to statutory management:
b: the appointment of the statutory manager terminates:
c: the appointment of a person as a member of an advisory committee terminates.
2: In subsection (1), specified time
a: the date and time specified in the order; or
b: the date and time of the liquidator’s appointment.
118: Termination or resignation of statutory manager’s appointment
1: The Minister may, in accordance with a recommendation of the regulator, terminate the appointment of a statutory manager by notice to the statutory manager.
2: The regulator may make a recommendation only if satisfied of 1 or both of the following:
a: the statutory manager is unable to perform the role of the office:
b: the statutory manager is bankrupt.
3: The Minister may terminate the appointment of a statutory manager by notice to the statutory manager if satisfied that there has been neglect of duty, or other misconduct, by the statutory manager.
4: A statutory manager—
a: may resign by notice to the Minister; but
b: if the statutory manager does so, must continue in office until a replacement is appointed under section 119(2)
5: In subsections (3) and (4) Minister
a: the RBNZ Minister and the FMA Minister acting jointly; or
b: the RBNZ Minister, if the FMI is a pure payment system.
119: Appointment of new statutory manager
1: Subsection (2) applies if—
a: the period of a statutory manager’s appointment expires; or
b: the appointment of a statutory manager is terminated under section 118(1) or (3)
c: a statutory manager dies or resigns.
2: The Minister may, in accordance with a recommendation of the regulator, by notice (the appointment notice
3: If, following the appointment notice, 2 or more persons will be statutory managers,—
a: the notice must state whether the powers of a statutory manager are to be exercised by those persons acting jointly or may be exercised individually; and
b: references in this subpart to a statutory manager include references to the statutory managers.
4: The publication requirements in section 151(2) Other provisions
120: Obligations incurred by statutory manager
1: This section applies if a statutory manager, in the course of the statutory manager’s duties, incurs obligations.
2: The obligations are incurred on behalf of the operator under statutory management, and the statutory manager does not incur personal liability for the obligations.
3: In the winding up or liquidation of the operator under statutory management, all amounts required to meet the obligations must be paid in priority to all other debts, except costs, charges, and expenses payable out of the property of the operator under statutory management in accordance with section 65 section 112(q)
121: Statutory management does not place any person in contravention of enactment, etc
1: The making of an order under section 90
a: place any person in contravention of any enactment, instrument, trust, or other rule of law, or make any person liable for a civil wrong; or
b: unless the rules of the FMI specify otherwise, entitle any person—
i: to require the payment or performance of a liability or an obligation that does not otherwise arise for payment or performance; or
ii: to exercise a right that does not otherwise become exercisable; or
iii: to deny a liability or an obligation that the person is not otherwise entitled to deny; or
c: invalidate or discharge an instrument or any provision of an instrument.
2: This section does not apply to a right to which section 125
3: In subsection (1) instrument
122: Continuation of statutory management of company restored to New Zealand register
1: This section applies if a company—
a: is removed from the New Zealand register under section 317
b: is then restored to the New Zealand register under section 328
2: The company continues to be subject to statutory management from when it is restored.
123: Person who exercises powers under subpart not director of operator under statutory management
Neither the regulator nor any other person is a director of an operator under statutory management just because the regulator or other person exercises a power under this subpart in relation to the operator.
124: Indemnity
1: The Crown indemnifies—
a: each statutory manager of an operator under statutory management for any liability that arises from any act or omission that is done or omitted to be done in good faith and in the performance or exercise, or intended performance or exercise, of the statutory manager’s functions; and
b: the regulator for any liability that arises from any act or omission that is done or omitted to be done in good faith and in the performance or exercise, or intended performance or exercise, of the regulator’s functions in connection with a statutory management of an operator under statutory management.
2: Any money paid by the Crown under the indemnity under this section and any expenses incurred by the Crown in relation to that indemnity may be incurred without further appropriation, and must be paid without further authority, than this section.
3: The indemnities conferred by this section extend to legal costs incurred in defending a proceeding.
4: Supplementary provisions
125: Certain rights relating to derivatives may be exercised after stay
1: This section applies to a right if—
a: the right becomes exercisable because an order under section 90
b: the right entitles a person to do 1 or more of the things specified in section 121(1)﻿(b)
2: Nothing in section 42 section 108
a: the default time; or
b: an earlier or a later time specified by the regulator in a notice issued under section 126
3: If a right to which this section applies is not subject to section 42(1) subsection (2)﻿(a) or (b)
4: In this section and section 126 default time section 90 derivative section 8(4) subpart 3
126: Regulator may reduce or extend stay on exercise of rights
1: This section applies for the purposes of section 125 A
2: The regulator may, before the default time, issue a notice that states that the rights referred to in section 125
3: The time that is specified may be—
a: before the default time; or
b: after the default time if the regulator is satisfied of all of the matters set out in subsection (4)
4: The matters referred to in subsection (3)﻿(b)
a: A is able to meet all of its liabilities under the rules of the FMI; and
b: either—
i: A complies with the minimum capital requirements (if any) set by a standard issued under section 31
ii: there are satisfactory arrangements in place to ensure that A meets all of its liabilities referred to in paragraph (a) subparagraph (i)
5: The notice may relate to all rights referred to in section 125
5: Offences and pecuniary penalties
1: Offences
127: Penalties for offences
1: This section sets out penalties for which a person is liable on conviction for an offence under this Act.
2: If the person who is convicted is a body corporate, the person is liable as follows:
a: for a level 1 offence, to a fine not exceeding $200,000:
b: for a level 2 offence or a level 3 offence, to a fine not exceeding $500,000:
c: for a level 4 offence, to a fine not exceeding $1,000,000:
d: for a level 5 offence, to a fine not exceeding $2,000,000.
3: If the person who is convicted is an individual, the person is liable as follows:
a: for a level 1 offence, to a fine not exceeding $20,000:
b: for a level 2 offence, to a fine not exceeding $50,000:
c: for a level 3 offence, to—
i: imprisonment for a term not exceeding 3 months; or
ii: a fine not exceeding $50,000; or
iii: both:
d: for a level 4 offence, to—
i: imprisonment for a term not exceeding 12 months; or
ii: a fine not exceeding $100,000; or
iii: both:
e: for a level 5 offence, to—
i: imprisonment for a term not exceeding 18 months; or
ii: a fine not exceeding $200,000; or
iii: both.
4: For the purposes of subsections (2) and (3)
a: an offence under section 17(1) level 1
b: the following are level 2
i: an offence under section 15(1)
ii: an offence under section 84(2)
iii: an offence under section 146(1)
c: the following are level 3
i: an offence under section 19(1)
ii: an offence under section 43(1)
iii: an offence under section 52(1)
iv: an offence under section 143(1)
d: the following are level 4
i: an offence under section 48
ii: an offence under section 65(1) or (2)
iii: an offence under section 69(1)
iv: an offence under section 140(2) or (4)
e: the following are level 5
i: an offence under section 30(2)
ii: an offence under section 84(1)
iii: an offence under section 86(1)
iv: an offence under section 115(1) or (3)
128: Defence for certain offences
1: This section applies to offences under the following:
a: section 15(1)
b: section 17(1)
c: section 146(1)
2: It is a defence for the person ( A
a: the contravention was due to—
i: the conduct of another person, other than a director, an employee, or an agent of A; or
ii: an accident or some other cause beyond the control of A and A’s directors, employees, and agents; and
b: A took reasonable precautions and exercised due diligence to avoid the contravention.
129: Time for filing charging documents
Despite anything to the contrary in section 25
2: Pecuniary penalties
130: Pecuniary penalty orders
1: The High Court may, on the regulator’s application, order an operator of an FMI ( A
a: contravened a standard issued under section 31 standard
b: been involved in a contravention of a standard by another operator of an FMI; or
c: contravened section 26(2)
d: contravened section 36
e: contravened section 44(2)
f: contravened section 47(1)
2: The High Court may, on the regulator’s application, order a participant of an FMI ( A section 61(2)
3: In this subpart,—
a: A’s conduct
b: an operator of an FMI is involved in a contravention
i: has aided, abetted, counselled, or procured the contravention; or
ii: has induced, whether by threats or promises or otherwise, the contravention; or
iii: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
iv: has conspired with others to effect the contravention.
131: Maximum amount of penalty
1: The maximum amount of the pecuniary penalty for a contravention, or involvement in a contravention, referred to in section 130(1)﻿(a), (b), or (f)
a: in the case of a body corporate, $750,000:
b: in the case of an individual, $75,000.
2: The maximum amount of the pecuniary penalty for a contravention referred to in section 130(1)﻿(c) to (e) or (2)
a: in the case of a body corporate, $150,000:
b: in the case of an individual, $15,000.
132: Considerations for court
In determining whether to make an order, and the amount of any pecuniary penalty to be paid, the court must have regard to the following matters:
a: the extent to which A’s conduct undermines the purposes of this Act:
b: any loss or damage caused by A’s conduct:
c: whether A has taken steps to avoid or mitigate any adverse effects arising from A’s conduct:
d: whether A’s conduct was intentional or reckless:
e: the circumstances of A’s conduct:
f: whether A has previously engaged in similar conduct:
g: any other matters the court considers relevant.
133: Defences in pecuniary penalty proceeding for operator that contravenes standard
1: This section applies to a proceeding under this subpart against A for a contravention of a standard.
2: It is a defence for A to prove that the contravention was due to reasonable reliance on information provided by another person, other than a director, an employee, or an agent of A.
3: It is also a defence for A to prove that—
a: the contravention was due to—
i: the conduct of another person, other than a director, an employee, or an agent of A; or
ii: an accident or some other cause beyond the control of A and A’s directors, employees, and agents; and
b: A took reasonable precautions and exercised due diligence to avoid the contravention.
4: A’s conduct must still be treated as contravening a standard even if the conduct does not lead to any liability under this subpart because of the availability of a defence.
134: Defence for other operator that is involved in contravention
1: This section applies if—
a: an operator of an FMI ( B
b: another operator of the FMI ( C
2: In any proceeding under this subpart against C for involvement in the contravention of the standard, it is a defence if C proves that—
a: C’s involvement in the contravention was due to reasonable reliance on information supplied by another person, other than a director, an employee, or an agent of C; or
b: C took all reasonable and proper steps to ensure that B complied with the standard.
135: Rules of civil procedure and civil standard of proof apply to civil liability
A proceeding under this subpart is a civil proceeding and the usual rules of court and rules of evidence and procedure for a civil proceeding apply (including the standard of proof).
136: Court must order that recovery from pecuniary penalty be applied to regulator’s actual costs
If the court orders A to pay a pecuniary penalty, the court must also order that the penalty be applied first to pay the regulator’s actual costs in making and continuing the regulator’s application for an order.
3: Supplementary provisions
137: Liability of directors
1: This section applies if—
a: a body corporate ( D D
b: D’s conduct occurred with the authority, permission, or consent of a director of D; and
c: the director—
i: knew, or could reasonably be expected to have known, D’s conduct was to occur or was occurring; and
ii: failed to take reasonable steps to prevent or stop D’s conduct.
2: The director also commits the offence or is liable to a pecuniary penalty.
3: The director may be convicted of the offence, or ordered to pay a pecuniary penalty, even if D is not convicted of the offence or ordered to pay a pecuniary penalty.
4: In this section, D’s conduct
138: State of mind of directors, employees, or agents attributed to body corporate or other principal
1: Subsection (2)
2: It is sufficient to show that a director, an employee, or an agent of the body corporate, acting within the scope of the actual or apparent authority of the director, employee, or agent, had that state of mind.
3: Subsection (4)
4: It is sufficient to show that an employee or agent of the person, acting within the scope of the actual or apparent authority of the employee or agent, had that state of mind.
5: In this section, state of mind
139: Person not liable for fine and pecuniary penalty for same conduct
A person must not, for the same conduct,—
a: be convicted of an offence under this Act; and
b: be ordered to pay a pecuniary penalty under this Act.
6: Regulations, amendments, and other miscellaneous provisions
1: Supplementary provisions relating to information
140: False or misleading information given for purposes of Act
1: This section applies if a person, in an application or any other information given under this Act, or otherwise for the purposes of this Act,—
a: gives to the regulator, or an investigator, information that is false or misleading in a material particular; or
b: makes to the regulator, or to an investigator, a declaration or representation that is false or misleading in a material particular.
2: The person commits an offence if the person gives the information, or makes the declaration or representation, knowing that, or being reckless as to whether, the information, or the declaration or representation, is false or misleading in a material particular.
3: If the person subsequently becomes aware that the information, or the declaration or representation, is false or misleading in a material particular, the person must, within 7 days,—
a: notify the regulator or investigator; and
b: correct the information, or the declaration or representation, as appropriate.
4: If the person intentionally or recklessly contravenes subsection (3)
5: See Part 5 Disclosure of information, etc
141: Disclosure of information between RBNZ and FMA
1: The RBNZ and the FMA may, for the purposes of, or in connection with, the regulator’s functions, publish or disclose to each other any specified information that they hold.
2: Subsection (1)
3: In this section, specified information
a: is given to the RBNZ or the FMA under this Act; or
b: is otherwise obtained or generated by the RBNZ or the FMA for the purposes of, or in connection with, the regulator’s functions; or
c: is otherwise obtained or held by the RBNZ or the FMA in the performance or exercise of their functions under any other enactment. 1989 No 157 s 156ZM
142: Disclosure of information by RBNZ to other persons
1: This section applies to the following:
a: information provided to the RBNZ under this Act:
b: information derived from or based on information referred to in paragraph (a)
c: information relating to the exercise, or possible exercise, of the powers conferred by this Act.
2: The RBNZ may publish or disclose any information to which this section applies only if—
a: the information is available to the public under an enactment (other than the Official Information Act 1982
b: the information is in a statistical or summary form; or
c: the publication or disclosure is for the purposes of, or in connection with, a person’s functions under this Act or the functions of the RBNZ or the FMA under any other enactment; or
d: the publication or disclosure is to a central bank, authority, or body in any jurisdiction whose functions correspond with, or are similar to, the regulator’s functions under this Act, and the RBNZ is satisfied that the information will be used by that central bank, authority, or body for the purposes of, or in connection with, those corresponding or similar functions; or
e: the publication or disclosure is to a person who the RBNZ is satisfied has a proper interest in receiving the information; or
f: the publication or disclosure is with the consent of the person to whom the information relates or of the person to whom the information is confidential.
3: The RBNZ must not publish or disclose information under subsection (2)﻿(d) or (e) section 7(1)
4: A director, an officer, a member, or an employee of the RBNZ must not publish or disclose any information to which this section applies except for the purposes of, or in connection with, a person’s functions under this Act or the functions of the RBNZ or the FMA under any other enactment.
5: Nothing in any enactment, other than this Act or the Official Information Act 1982
6: The RBNZ may make information to which this section applies available under the Official Information Act 1982 subsection (2)
7: See sections 59 60
143: Offence for unauthorised disclosure
1: A director, an officer, a member, or an employee of the RBNZ who knowingly publishes or discloses information in contravention of section 142
2: See Part 5
144: Conditions relating to disclosure of information
1: The RBNZ may, by written notice to a person to whom any information or document is published or disclosed under section 142(2)﻿(c), (e), or (f)
2: The RBNZ 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 may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information as defined in section 7(1)
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided.
145: Restrictions on further disclosure of information
1: If information is published or disclosed to a person under section 142(2)﻿(c)
a: for the purposes of, or in connection with, functions referred to in section 142(2)﻿(c)
b: in accordance with any conditions imposed by the RBNZ.
2: If information is published or disclosed to a person under section 142(2)﻿(e)
a: is authorised by the RBNZ and is in accordance with any conditions imposed by the RBNZ; or
b: is for the purposes of, or in connection with, functions of a person under any enactment.
3: If information is published or disclosed to a person under section 142(2)﻿(f)
146: Offence for unauthorised disclosure or use
1: A person who publishes, discloses, or uses information in contravention of section 145
2: See Part 5
147: Effect of proceedings on exercise of powers to require information, etc
1: This section applies if a person commences a proceeding in any court in respect of the exercise of any powers under Part 2 section 63 information powers
2: Until a final decision in relation to the proceeding is given,—
a: the information powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and
b: no person is excused from performing the person’s duties under Part 2 section 63
3: However, an interim order may be made by the High Court overriding the effect of subsection (2) if the court is satisfied that—
a: the applicant has established a prima facie case that the exercise of the information powers is unlawful; and
b: the applicant would suffer substantial harm from the exercise of the information powers or the performance of any duties referred to in subsection (2)﻿(b); and
c: if those powers or duties are exercised or performed before a final decision is given in the proceeding, none of the remedies listed in subsection (4), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and
d: the terms of the order do not—
i: hinder or restrict the carrying out of any functions of a person under Part 4
ii: unduly hinder or restrict the carrying out of any other functions of a person under this Act.
4: The remedies are as follows:
a: any remedy that the High Court may grant in making a final decision in the proceeding (for example, a declaration):
b: any damages that the applicant may be able to claim in a concurrent or subsequent proceeding:
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 of the information powers or the performance of any duty referred to in subsection (2)﻿(b).
148: Decision that exercise of powers is unlawful
1: This section applies if the final decision in a proceeding referred to in section 147
2: The regulator or investigator must ensure that, immediately after the decision of the court is given,—
a: any information obtained as a result of the unlawful exercise of the information powers, and any record of the information, is destroyed; and
b: any documents, or extracts from documents, obtained as a result of the unlawful exercise of the information powers are returned to the person who had possession of them, or under whose control they were, 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 order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the regulator or investigator, subject to any terms or conditions that the court imposes.
4: No information, and no documents or extracts from documents, obtained as a result of the unlawful exercise of the information powers, and no record of any such information or documents,—
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 carrying out of any function of a person under this Act or any other enactment unless the court that decided that the exercise of the information powers was unlawful is satisfied that there was no unfairness in obtaining the information or document.
2: Supplementary provisions relating to regulator’s powers
149: Applications, submissions, and other information given to regulator or other person in accordance with regulator’s requirement
1: An application or a submission made, or any other information given, to the regulator, or to be made or given to another person in accordance with a requirement of the regulator, must be made or given in the way required by the regulator.
2: The regulator’s requirements may include (without limitation) requirements about 1 or more of the following:
a: the form in which the application, submission, or information must be made or given:
b: the information that must be given with the application, submission, or information:
c: the way in which any information referred to in this section must be verified.
3: Information to be given to the regulator or other person must be given within the period determined by the regulator.
150: Revocation or amendment of requirements imposed, or directions given, by notice
A power of the regulator to impose a requirement on, or to give a direction to, a person by notice includes the power to revoke or amend the requirement or direction by a subsequent notice, and the provisions of this Act relating to the exercise of the power apply with any appropriate modifications.
151: Publication requirements
1: Subsection (2) sets out the publication requirements that apply to the instruments referred to in sections 10(4) 11(4) 29(4) 72(2) 90(1) 97(5) 116(1) 119(4)
2: The publication requirements
a: notice must be given in the Gazette
b: the instrument must be published on an Internet site that—
i: is maintained by, or on behalf of, the RBNZ; and
ii: is publicly available free of charge:
c: the instrument must be published on an Internet site that—
i: is maintained by, or on behalf of, the FMA; and
ii: is publicly available free of charge:
d: hard copies of the instrument must be made available as follows:
i: for inspection by members of the public free of charge:
ii: for purchase by members of the public at a reasonable price.
3: Subsection (2)﻿(c) does not apply if the instrument relates only to a pure payment system.
4: If an instrument to which the publication requirements apply is amended, the publication requirements apply to the instrument as amended.
5: A contravention of this section does not invalidate an instrument or a policy.
152: Regulator must publish statements of policies
The regulator must also publish in accordance with section 151(2)﻿(b) and (c)
a: the regulator’s policies for determining whether an FMI should be declared to be a designated FMI under section 20
b: the regulator’s policies relating to the carrying out of the regulator’s functions in relation to designated FMIs.
3: Regulations
153: Power to make regulations
1: The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the regulator, make regulations for 1 or more of the following purposes:
a: prescribing forms:
b: requiring the payment to the regulator of fees and charges—
i: by operators in connection with the carrying out by the regulator of any function under this Act:
ii: on an application or a request to the regulator to carry out any function under this Act:
c: prescribing the amounts of the fees and charges or the way in which the amounts are to be calculated:
d: authorising the regulator to require payment of any costs incurred by the regulator in connection with those applications or requests:
e: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations may authorise the regulator to refund or waive, in whole or in part and on any conditions as may be prescribed, payment of any fee, charge, or cost payable in relation to any person or class of persons.
3: The regulator may refuse to carry out a function until a fee, charge, or cost is paid.
4: Any fee, charge, or cost payable to the regulator is recoverable by the regulator in any court of competent jurisdiction as a debt due to the regulator.
5: Regulations made under this section are secondary legislation ( see Part 3
6: If the regulations authorise the regulator under subsection (2),—
a: an instrument by which the regulator grants a refund or waiver 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 (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.
4: Other miscellaneous provisions
154: RBNZ to have regard to directions about government policy objectives
Section 154 repealed 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021
155: Limit on FMA’s powers under other enactments
For the purposes of this Act, the FMA may exercise its powers under Part 3 1989 No 157 s 156L
156: Protection from liability
1: None of the following persons is personally liable for an act or omission by that person in good faith in the carrying out, or the purported carrying out, of a function of a person under this Act:
a: the RBNZ:
b: a director, an officer, or an employee of the RBNZ:
c: an investigator:
d: a statutory manager:
e: a member of an advisory committee.
2: See also section 22
157: Conduct of directors, employees, or agents attributed to body corporate or other principal
1: Conduct engaged in on behalf of a body corporate by any of the following must be treated, for the purposes of this Act, as having also been engaged in by the body corporate:
a: a director, an employee, or an agent of the body corporate, if acting within the scope of the actual or apparent authority of the director, employee, or agent:
b: any other person, if acting at the direction, or with the consent or agreement (expressed or implied), of a director, an employee, or an agent of the body corporate given within the scope of the actual or apparent authority of the director, employee, or agent.
2: Conduct engaged in on behalf of a person ( P
a: an employee or agent of P, if acting within the scope of the actual or apparent authority of the employee or agent:
b: any other person, if acting at the direction, or with the consent or agreement (expressed or implied), of—
i: P; or
ii: an employee or agent of P given within the scope of the actual or apparent authority of the employee or agent.
158: Prohibition on indemnities or insurance for directors or employees of operators that are not New Zealand companies
1: This section applies to the following:
a: an operator of a designated FMI, if section 162
b: a body corporate that is related to an operator of a designated FMI (as determined in accordance with section 12(2) section 162
2: An operator, or a related body corporate, must not indemnify, or directly or indirectly effect insurance for, a director or an employee of the operator for—
a: liability, in connection with any matter regulated by this Act, for any conduct in the person’s capacity as a director or an employee; or
b: costs incurred by the director or employee in defending or settling any claim or proceeding relating to that liability.
3: An indemnity given in contravention of this section is void.
159: Exception to prohibition
1: Section 158(2)
a: indemnifying a director or an employee for any costs incurred in defending or settling a proceeding if—
i: judgment is given in favour of the director or employee or the director or employee is acquitted; or
ii: the proceeding is discontinued:
b: subject to subsection (2), indemnifying a director or an employee for—
i: any liability covered by section 158(2)﻿(a)
ii: costs incurred in defending or settling any claim or proceeding relating to any liability covered by section 158(2)﻿(a)
c: with the prior approval of its board of directors, effecting insurance for a director or an employee in relation to—
i: any liability covered by section 158(2)﻿(a)
ii: costs incurred in defending or settling any claim or proceeding relating to any liability covered by section 158(2)﻿(a)
iii: costs incurred in defending any criminal proceedings relating to any liability covered by section 158(2)﻿(a)
2: Subsection (1)﻿(b) does not apply to the following:
a: criminal liability:
b: liability arising out of a failure to act in good faith.
3: The directors who vote in favour of authorising insurance as referred to in subsection (1)﻿(c) must sign a certificate stating that, in their opinion, the cost of effecting the insurance is fair to the operator or related body corporate (as the case may be).
4: The insured director or employee is personally liable to the operator or related body corporate for the cost of effecting the insurance if—
a: subsection (3) is not complied with; or
b: reasonable grounds did not exist for the opinion set out in the certificate given under subsection (3).
5: However, subsection (4) does not apply to the extent that the insurance is fair to the operator or related body corporate at the time the insurance is effected.
160: Giving of notices by regulator or investigator
1: The regulator or an investigator may give notice to another person as follows:
a: an individual,—
i: by delivering it, or having it delivered, to the individual:
ii: by sending it by post addressed to the individual at the individual’s usual or last known place of residence or business:
iii: by sending it by email to the individual’s email address provided to the regulator or investigator for the purpose:
b: a company, as provided for in section 387(1) 388
c: an overseas company, as provided for in section 389(1) 390
d: any other body corporate, as provided for in section 387(1) 388
2: Unless otherwise shown, the following provisions apply:
a: notice given by post to an individual is treated as given at the time it would be delivered in the ordinary course of the post:
b: notice given by email to an individual is treated as given on the second working day after the day on which it is sent.
3: If notice is given by post to an individual, it is sufficient for the purpose of showing that delivery occurred to show that the letter was properly addressed and posted.
4: Section 392
5: For the purposes of this section, company overseas company section 2(1)
161: Giving notices to agent
1: If an individual is absent from New Zealand, notice may be given to the individual’s agent in accordance with section 160(1)
2: Subsections (3) and (4) apply to an operator of a designated FMI if—
a: the operator’s home jurisdiction is not New Zealand; and
b: the operator is not registered under Part 18
3: The operator must—
a: have an agent in New Zealand for the purposes of this section; and
b: give details of the agent to the regulator.
4: Notice may be given to the agent in accordance with section 160(1)
5: See section 149
5: Consequential amendments
162: Consequential amendments that come into force on day after Royal assent
Amend the Acts specified in Schedule 2 2021-05-11 Anti-Money Laundering and Countering Financing of Terrorism Act 2009 Financial Markets Authority Act 2011 Personal Property Securities Act 1999 Reserve Bank of New Zealand Act 1989
163: Consequential amendments that come into force by Order in Council
1: Amend the Acts specified in Part 1 of Schedule 3
2: Amend the instrument specified in Part 2 of Schedule 3
3: Revoke the instruments specified in Part 3 of Schedule 3 section 156N Banking (Prudential Supervision) Act 1989 OIC SL 2023/90 2024-03-01 Companies Act 1993 Corporations (Investigation and Management) Act 1989 Financial Markets Authority Act 2011 Financial Markets Conduct Act 2013 Income Tax Act 2007 Overseas Investment Act 2005 Personal Property Securities Act 1999 Reserve Bank of New Zealand Act 1989 Search and Surveillance Act 2012 Tax Administration Act 1994 Financial Markets Conduct Regulations 2014 Reserve Bank of New Zealand (Designated Settlement Systems) Order 2004 Reserve Bank of New Zealand (Designated Settlement System—NZCDC) Order 2010 Reserve Bank of New Zealand (Designated Settlement System—NZClear) Order 2012 Reserve Bank of New Zealand (Designated Settlement System—ASXCF) Order 2020 See sections 2(2) and 2(3) — may be brought into force by Order in Council. Section 163(3) amended 1 July 2022 section 300(1) Reserve Bank of New Zealand Act 2021