Securities Markets Act 1988

1: Short Title and commencement
1: This Act is the Securities Markets Act 1988.
2: Except as provided in subsection (3), this Act shall come into force on the date on which it receives the Royal assent.
3: Part 2 section 36 Part 3 section 41 sections 42 to 44 Section 1(1) substituted 1 December 2002 section 4(2) Securities Markets Amendment Act 2002
2: Interpretation
1: In this Act, unless the context otherwise requires,— acquire
a: includes obtain by buying or subscribing; and
b: includes agree to acquire; but
c: in Part 3 section 37(1) associated persons persons associated with each other authorised advertisement section 2(1) authorised futures contract Part 3 section 37(1) authorised futures exchange section 37(1) authorised futures market section 37(1) business business rules section 36H(1)(b) change section 36J(2) chief executive civil remedy order section 42R civil remedy provision section 42S class commodity Part 3 section 37(1) company section 2(1) consideration continuous disclosure direction section 36ZP continuous disclosure exemption
a: if section 19C
b: if section 19C section 48E continuous disclosure obligation section 19B section 19C continuous disclosure provisions section 19D contravene Part 5 provision
a: a contravention of the provision; or
b: an attempt to contravene the provision; or
c: aiding, abetting, counselling, or procuring any other person to contravene the provision; or
d: inducing, or attempting to induce, any other person, whether by threats or promises or otherwise, to contravene the provision; or
e: being in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention by any other person of the provision; or
f: conspiring with any other person to contravene the provision control subpart 1B section 36S co-operative company Co-operative Companies Act 1996 court deal Part 3 section 37(5) and (6) dealings in securities subpart 2
a: means, in relation to securities listed on a registered market
i: acquiring or disposing of securities (and, in the case of a futures contract, these steps include acquiring or disposing of as defined in section 37(1)
ii: offering securities for subscription and issuing and allotting securities; or
iii: underwriting securities; or
iv: anything that is preparatory to, or related to, any dealings in securities (for example, giving investment advice) unless an exception applies to those dealings under that subpart; and
b: means, in relation to securities that are not listed on a registered market
c: excludes any dealings exempted by regulations made under section 49D director
a: in relation to a company, any person occupying the position of a director of the company by whatever name called:
b: in relation to a partnership (other than a special partnership or limited partnership
c: in relation to a special partnership or limited partnership
d: in relation to a body corporate or unincorporate, other than a company, partnership, or special partnership or limited partnership
e: in relation to any other person, that person directors' and officers' disclosure obligation sections 19T to 19V dispose of
a: includes dispose of by selling, allotting, withdrawing from, or terminating; and
b: includes agree to dispose of; but
c: in Part 3 section 37(1) distribute
a: make available, publish, and circulate; and
b: communicate by letter, newspaper, broadcasting, sound recording, television, cinematographic film, video, or any form of electronic or other means of communication document
a: anything on which there is writing or any image; and
b: information recorded by means of any article or device (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device; and
c: material subsequently derived from information recorded by that means encourage engaging in conduct
a: omitting to do an act; or
b: making it known that an act will or will not be done exchange participant
a: a public issuer:
b: a person authorised by a registered exchange to undertake trading activities on, or otherwise participate in, a registered market exemption Part 5 contravening or complying with an exemption FMA Part 2 Financial Markets Authority Act 2011 futures contract section 37 futures market general dealing misconduct prohibition section 13 generally available to the market section 4 holding company sections 5 6 information insider section 8A inside information section 8B insider conduct prohibition sections 8C to 8E issuer section 2(1) listed a registered market listing rules section 36H(1)(a) market manipulation prohibition sections 11 11B market rules
a: in relation to a securities market, the business rules and listing rules of a registered exchange for the securities market; and
b: in relation to a futures market, the business rules of a registered exchange for the futures market material information section 3 section 3A Minister non-listed securities officer Part 2
a: means a person, however designated, who is concerned or takes part in the management of the public issuer's business; but
b: excludes any persons (whether described as a class or otherwise) that are declared by regulations not to be officers for the purposes of this definition operate or futures market prescribed principal officer
a: a director of the body; or
b: a person in accordance with whose directions or instructions any or all of the directors of the body are accustomed to act (but a person is not a principal officer under this paragraph merely because the directors act on advice given by that person solely in a professional capacity) product advertisement
a: means a form of communication that—
i: contains or refers to an offer of securities (including derivatives) to the public for subscription, or is reasonably likely to induce persons to subscribe for those securities, being securities to which the communication relates and that have been, or are to be, offered to the public for subscription; and
ii: is authorised or instigated by, or on behalf of, an investment adviser or prepared with the co-operation of, or by arrangement with, an investment adviser; and
iii: is to be, or has been, distributed to a person; but
b: does not include a prospectus or an advertisement as defined in sections 2(1) 2A public issuer
a: a person who is a party to a listing agreement with a registered exchange in relation to a registered market (and includes a registered exchange that is listed on its own registered market)
b: a person to whom paragraph (a) previously applied, in respect of any action or event or circumstance to which this Act applied at that time registered bank Part 3 section 37(1) registered exchange
a: a person that holds a market registration under section 36F
b: a subsidiary of a person to which paragraph (a) applies (if the subsidiary operates the registered market):
c: a person that is treated as if it were a registered exchange under section 36ZY(4) registered exchange's securities market that is a registered market registered market
a: a securities or futures market that is registered under section 36F
b: a securities or futures market that is treated as if it were a registered market under section 36ZY(4) related section 5B(2) relevant event sections 22 to 25 relevant interest sections 5 to 5B securities market security
a: means—
i: any interest in, or right to participate in, any capital, assets, earnings, royalties, or other property of any person:
ii: any interest in, or right to be paid, money that is, or is to be, deposited with, lent to, or otherwise owing by, any person (whether or not the interest or right is secured by a charge over any property):
iii: any renewal or variation of the terms or conditions of any existing security; but
b: in subpart 1 registered market or approved for trading on an authorised futures market Securities Act 1978 section 6A
c: in subpart 2 paragraph (a) Part 2 paragraphs (b) to (h) of section 5(1)
d: in both subparts 1 2
i: any form of beneficial interest in the security:
ii: the power to exercise, or control the exercise of, any right to vote attached to the security:
iii: the power to acquire or dispose of, or control the acquisition or disposition of, the security:
iv: any power which may exist or arise at any time under any trust, agreement, arrangement, or understanding relating to the security to do anything described in subparagraphs (i) to (iii); and
e:
f: in Part 5 subsidiary sections 5 6 substantial holding section 21 substantial holding disclosure obligation sections 22 to 27 34 to 35A substantial security holder section 21 Takeovers Act Takeovers Act 1993 takeovers code Takeovers Act trade subpart 1
a: means acquire or dispose of; but
b: does not include acquire, or dispose of, by inheritance or gift trading day registered market transacting shareholder section 4 trustee corporation Māori Trustee unsolicited offer section 48DA(1) unsolicited offer obligation section 48DB voting right subpart 1 section 36S voting security
a: means a security of the public issuer or body that confers a right to vote at meetings of members or shareholders (whether or not there is any restriction or limitation on the number of votes that may be cast by or on behalf of the holder of the security); and
b: includes a security that is convertible into a security of that kind; but
c: excludes a security that confers only a right to vote that, under the conditions attached to the security, is exercisable only in 1 or more of the following circumstances:
i: during a period in which a dividend (or part of a dividend) in respect of the security is in arrears:
ii: on a proposal to reduce the capital of the public issuer or body:
iii: on a proposal that affects rights attached to the security:
iv: on a proposal to put the public issuer or body into liquidation:
v: on a proposal for the disposal of the whole or a material part of the property, business, and undertaking of the public issuer or body:
vi: during the liquidation of the public issuer or body.
2: For the purposes of this Act, unless the context otherwise requires, associated persons persons associated with each other
a: persons who are relatives within the meaning of the Income Tax Act 2004
b: persons who are partners to whom the Partnership Act 1908
c: bodies corporate that consist substantially of the same shareholders or are under the control of the same persons; or
d: a body corporate and a person who has the power, directly or indirectly, to exercise, or control the exercise of, the right to vote attached to 25% or more of the voting securities of the body corporate; or
e: a body corporate and a person who is a director or principal officer of the body corporate.
3: Any term or expression that is defined in the Securities Act 1978 Securities Act 1978
4: A term that is defined to have a meaning when used in a particular Part or provision of this Act has the same meaning when it is used in the definition of any other term used in that Part or provision.
5: For the purposes of this Act and every other enactment, unless the context otherwise requires, a person is a party to a listing agreement with a registered exchange if the person is party to that listing agreement in respect of a registered market of the registered exchange (or, in the case of a registered exchange, if the exchange is listed on its own registered market, whether or not under a listing agreement). Section 2 substituted 29 February 2008 section 4 Securities Markets Amendment Act 2006 Section 2(1) advertisement repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) advice advertisement repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) authorised futures market inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) broker advertisement repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) business rules substituted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) change inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) Commission repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 2(1) conduct rules repealed 1 May 2011 section 4(1) Securities Markets Amendment Act 2011 Section 2(1) control amended 1 May 2011 section 4(3) Securities Markets Amendment Act 2011 Section 2(1) dealings in securities amended 1 May 2011 section 4(4) Securities Markets Amendment Act 2011 Section 2(1) dealings in securities amended 1 May 2011 section 4(5) Securities Markets Amendment Act 2011 Section 2(1) dealings in securities amended 1 May 2011 section 4(6) Securities Markets Amendment Act 2011 Section 2(1) director amended 2 May 2008 section 121(4) Limited Partnerships Act 2008 Section 2(1) director amended 2 May 2008 section 121(4) Limited Partnerships Act 2008 Section 2(1) director amended 2 May 2008 section 121(4) Limited Partnerships Act 2008 Section 2(1) exchange participant inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) FMA inserted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 2(1) futures contract amended 24 November 2009 section 4(3) Securities Markets Amendment Act 2009 Section 2(1) futures market inserted 24 November 2009 section 4(4) Securities Markets Amendment Act 2009 Section 2(1) investment advice advice repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment adviser adviser repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment advisers' disclosure obligations investment advisers’ obligations repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment broker broker repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment brokers’ disclosure obligations investment brokers’ obligations repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment brokers' service repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment money money repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) investment property property repealed 1 July 2011 section 164(2) Financial Advisers Act 2008 Section 2(1) issuer inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) listed amended 1 May 2011 section 4(7) Securities Markets Amendment Act 2011 Section 2(1) listing rules substituted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) market rules inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) operate amended 24 November 2009 section 4(6) Securities Markets Amendment Act 2009 Section 2(1) public issuer amended 1 May 2011 section 4(8) Securities Markets Amendment Act 2011 Section 2(1) public issuer substituted 1 May 2011 section 4(9) Securities Markets Amendment Act 2011 Section 2(1) registered exchange substituted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) registered exchange's market repealed 24 November 2009 section 4(8) Securities Markets Amendment Act 2009 Section 2(1) registered exchange's securities market inserted 24 November 2009 section 4(8) Securities Markets Amendment Act 2009 Section 2(1) registered exchange's securities market amended 1 May 2011 section 4(10) Securities Markets Amendment Act 2011 Section 2(1) registered market inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) securities exchange repealed 24 November 2009 section 4(9) Securities Markets Amendment Act 2009 Section 2(1) security amended 1 May 2011 section 4(11) Securities Markets Amendment Act 2011 Section 2(1) security repealed 1 July 2011 section 164(3) Financial Advisers Act 2008 Section 2(1) trading day amended 1 May 2011 section 4(12) Securities Markets Amendment Act 2011 Section 2(1) trustee corporation amended 1 July 2009 section 30(2)(a) Māori Trustee Amendment Act 2009 Section 2(1) unsolicited offer inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(1) unsolicited offer obligation inserted 1 May 2011 section 4(2) Securities Markets Amendment Act 2011 Section 2(5) added 1 May 2011 section 4(13) Securities Markets Amendment Act 2011
3: What is material information in relation to public issuer
For the purposes of this Act, unless the context otherwise requires, material information section 3A
a: a reasonable person would expect, if it were generally available to the market, to have a material effect on the price of listed securities of the public issuer; and
b: relates to particular securities, a particular public issuer, or particular public issuers, rather than to securities generally or public issuers generally. Section 3 substituted 29 February 2008 section 4 Securities Markets Amendment Act 2006
3A: What is material information in relation to futures contract
For the purposes of this Act, unless the context otherwise requires, material information authorised futures market
a: a reasonable person would expect, if it were generally available to the market, to have a material effect on the value of the futures contract; and
b: relates to the particular futures contract, rather than to futures contracts generally. Section 3A inserted 29 February 2008 section 4 Securities Markets Amendment Act 2006 Section 3A amended 1 May 2011 section 5 Securities Markets Amendment Act 2011
4: What information is generally available to the market
1: For the purposes of this Act, unless the context otherwise requires, information is generally available to the market
a: if—
i: it is information that has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in relevant securities; and
ii: since it was made known, a reasonable period for it to be disseminated among those persons has expired; or
b: if it is likely that persons who commonly invest in relevant securities can readily obtain the information (whether by observation, use of expertise, purchase from other persons, or any other means); or
c: if it is information that consists of deductions, conclusions, or inferences made or drawn from either or both of the kinds of information referred to in paragraphs (a) and (b).
2: In this section, relevant securities
3: Information that is notified in accordance with a continuous disclosure obligation is generally available to the market under subsection (1)(a) immediately on it being made available to participants in a registered exchange's securities market Section 4 substituted 29 February 2008 section 4 Securities Markets Amendment Act 2006 Section 4(3) amended 24 November 2009 section 22 Securities Markets Amendment Act 2009
5: Relevant interests in securities (basic rule)
1: A person has a relevant interest
a: is a registered holder of the security; or
b: is a beneficial owner of the security; or
c: has the power to exercise, or to control the exercise of, a right to vote attached to the security; or
d: has the power to acquire or dispose of, or to control the acquisition or disposition of, the security.
2: It does not matter whether the power or control is express or implied, direct or indirect, legally enforceable or not, related to a particular security or not, exercisable presently or in the future, or exercisable alone or jointly with another person or persons (but a power to cast merely one of many votes is not, in itself, a joint power of this kind).
3: It also does not matter whether or not the power or control is or can be made subject to restraint or restriction or is exercisable only on the fulfilment of a condition.
4: If 2 or more persons can jointly exercise a power, each of them is taken to have that power. Section 5 substituted 29 February 2008 section 4 Securities Markets Amendment Act 2006
5A: Extension of basic rule to powers or controls exercisable through trust, agreement, etc
1: A person has a power or control referred to in section 5
2: It does not matter whether or not the trust, agreement, arrangement, or understanding is legally enforceable or whether or not the person is a party to it. Section 5A inserted 29 February 2008 section 4 Securities Markets Amendment Act 2006
5B: Extension of basic rule to interests held by other persons under control or acting jointly
1: A person ( A B
a: B or B's directors are accustomed or under an obligation (whether legally enforceable or not) to act in accordance with A's directions, instructions, or wishes in relation to a power or control referred to in section 5
b: A has the power to exercise, or control the exercise of, the right to vote attached to 20% or more of the securities of B; or
c: A has the power to acquire or dispose of, or to control the acquisition or disposition of, 20% or more of the securities of B; or
d: A and B are related bodies corporate; or
e: A and B have an agreement, arrangement, or understanding to act in concert in relation to a power or control referred to in section 5
2: For the purposes of this Act, a body corporate ( A related B
a: B is A's holding company or subsidiary within the meaning of sections 5 6
b: more than half of A's issued shares (other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital) is held by B and bodies corporate related to B (whether directly or indirectly, but other than in a fiduciary capacity); or
c: more than half of the issued shares (other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital) of each of A and B is held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or
d: the businesses of A and B have been so carried on that the separate business of each body corporate, or a substantial part of that business, is not readily identifiable; or
e: there is another body corporate to which A and B are both related. Section 5B inserted 29 February 2008 section 4 Securities Markets Amendment Act 2006
6: Situations not giving rise to relevant interests
1: A person ( A sections 5 to 5B
a: the ordinary business of A consists of, or includes, the lending of money or the provision of financial services, or both, and A has the relevant interest only as security given for the purposes of a transaction entered into in the ordinary course of the business of A; or
b: A is authorised to undertake trading activities on a registered market
c: A has been authorised by resolution of the directors or other governing body of a body corporate to act as its representative at a particular meeting of members, or class of members, of a public issuer, and a copy of the resolution is deposited with the public issuer before the meeting; or
d: A is appointed as a proxy to vote at a particular meeting of members, or of a class of members, of the public issuer and the instrument of A's appointment is deposited with the public issuer before the meeting; or
e: A is a bare trustee of a trust to which the security is subject; or
f: A is a director of a body corporate and the body corporate has a relevant interest in the security; or
g: A is a member of a body corporate and the body corporate's constitution gives the member pre-emptive rights on the transfer of the security, if all members have preemptive rights on the same terms.
2: Subsection (1)(a) to (g) does not apply to a person if the person is currently designated by the FMA Gazette section 48C
3: For the purposes of subsection (1)(e), a trustee may be a bare trustee even if he or she is entitled as a trustee to be remunerated out of the income or property of the trust. Section 6 substituted 29 February 2008 section 4 Securities Markets Amendment Act 2006 Section 6(1)(b) amended 1 May 2011 section 6 Securities Markets Amendment Act 2011 Section 6(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
6A: Application of Part 1 to Reserve Bank of New Zealand
Section 6A repealed 29 February 2008 section 4 Securities Markets Amendment Act 2006
6B: Act binds the Crown
This Act binds the Crown. Section 6B inserted 1 December 2002 section 8 Securities Markets Amendment Act 2002
1: Dealing misconduct
Part 1 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
1: Insider conduct and market manipulation prohibitions
Subpart 1 heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Insider conduct prohibited Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
7: Liability of insider who deals in securities of a public issuer
Section 7 repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
8: Prohibition of insider conduct
A person must not do any of the things set out in sections 8C to 8E Section 8 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8A: Who is information insider
1: A person is an information insider
a: has material information relating to the public issuer that is not generally available to the market; and
b: knows or ought reasonably to know that the information is material information; and
c: knows or ought reasonably to know that the information is not generally available to the market.
2: A public issuer may be an information insider of itself. Section 8A inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8B: Meaning of inside information
In this subpart, inside information Section 8B inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8C: Information insider must not trade
An information insider of a public issuer must not trade securities of the public issuer. Section 8C inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8D: Information insider must not disclose inside information
An information insider ( A B
a: trade securities of the public issuer; or
b: if B is already a holder of those securities, continue to hold them; or
c: advise or encourage another person ( C Section 8D inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8E: Information insider must not advise or encourage trading
An information insider ( A
a: advise or encourage another person ( B
b: advise or encourage B to advise or encourage another person ( C Section 8E inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
8F: Criminal liability for insider conduct
A person who contravenes any of sections 8C to 8E see section 43
a: that the information is material information; and
b: that the information is not generally available to the market; and
c: in the case of a contravention of section 8D section 8D(a) to (c) Section 8F inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 When prohibition on insider conduct does not apply Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9: Exception for trading required by enactment
Section 8C Section 9 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9A: Exception for disclosure required by enactment
Section 8D Section 9A inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9B: Exceptions in respect of underwriting agreements
1: Section 8C
2: Section 8D
3: Section 8E Section 9B inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9C: Exception in case of knowledge of person's own intentions or activities
1: A person ( A section 8C
2: A person ( B section 8E
3: In subsection (2), adviser Section 9C inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9D: Exception for agent executing trading instruction only
Section 8C A
a: in trading the securities A was acting on behalf of another person ( B
b: A traded the securities on B's specific instruction; and
c: before trading, A did not disclose inside information to B; and
d: A did not advise or encourage B to instruct A to trade. Section 9D inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9E: Exceptions for takeovers
1: Section 8C
a: trading that results from a takeover offer under the takeovers code; or
b: trading in compliance with regulations made under section 49D(1)(b)
c: entering into an agreement to acquire or dispose of securities at a fixed price under a future takeover offer that complies with the takeovers code; or
d: the acquisition or disposal of securities in performance of an agreement to acquire or dispose of those securities at a fixed price under a future takeover offer that complies with the takeovers code.
2: Section 8D
a: subject to the conditions in subsection (3), disclosure of inside information to a prospective offeror or its advisers under a prospective takeover offer under the takeovers code:
b: subject to the conditions in subsection (3), disclosure of inside information to encourage competing bona fide offers to be made in competition with a takeover offer under the takeovers code:
c: subject to the conditions in subsection (3), disclosure of inside information by a prospective offeror or its advisers under a prospective takeover offer under the takeovers code for the purpose of forming a consortium to make a takeover offer:
d: disclosure of inside information to an independent adviser to enable that adviser to make a report required by the takeovers code.
3: The conditions referred to in subsection (2) are—
a: the recipient of the information is bound by a confidentiality agreement in respect of the information; and
b: the purpose of the conduct is to enable or encourage the recipient to make a takeover offer or to participate in a takeover offer.
4: Section 8E
a: by the directors of a company that is the target company under a takeover offer under the takeovers code, to the extent that the advice or encouragement is given to the company's shareholders and relates to trading or holding their securities; or
b: by a prospective offeror under a prospective takeover offer under the takeovers code for the purpose of forming a consortium to make a takeover offer.
5: A person ( A section 8D section 8E B
6: In subsection (5), adviser Section 9E inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9F: Exception for redemption of units in unit trust
Section 8C Section 9F inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
9G: Exception for Reserve Bank
Section 8C Section 9G inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Affirmative defences Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
10: Absence of knowledge of trading
In any proceeding against a person ( A section 8C Section 10 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
10A: Inside information obtained by independent research and analysis
1: In any proceeding against a person ( A section 8C section 8D
2: In any proceeding against a person ( A section 8E
3: In subsections (1) and (2), research Section 10A inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
10B: Equal information
1: In any proceeding against a person ( A section 8C
2: In any proceeding against a person ( A section 8D
3: In any proceeding against a person ( A section 8D section 8E B
4: In subsection (3), adviser Section 10B inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
10C: Options and trading plans
1: In any proceeding against a person ( A section 8C
a: A traded the securities under a fixed trading plan or under options with a fixed exercise price; and
b: A entered into the trading plan, or acquired the options, as the case may be,—
i: before A obtained the inside information; and
ii: without any intent to evade section 8C
2: A fixed trading plan
a: is fixed for a period of time; and
b: gives the investor no right to withdraw before the end of that period; and
c: is not subject to any influence by the investor as to trading decisions after the plan has begun. Section 10C inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
10D: Chinese wall defence
1: In any proceeding against a person ( A sections 8C to 8E
a: arrangements existed that could reasonably be expected to ensure that no individual who took part in the active decision received, or had access to, the inside information or was influenced, in relation to that decision, by an individual who had the information; and
b: no individual who took part in the active decision received, or had access to, the inside information or was influenced, in relation to that decision, by an individual who had the information; and
c: every individual who had the information and every individual who took part in the active decision acted in accordance with the arrangements referred to in paragraph (a).
2: In subsection (1), active decision Section 10D inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Market manipulation Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11: False or misleading statement or information
A person must not make a statement or disseminate information if—
a: a material aspect of the statement or information is false or the statement or information is materially misleading; and
b: the person knows or ought reasonably to know that a material aspect of the statement or information is false or that the statement or information is materially misleading; and
c: the statement or information is likely to—
i: induce a person to trade in the securities of a public issuer; or
ii: have the effect of increasing, reducing, maintaining, or stabilising the price for trading in those securities; or
iii: induce a person to vote for, or vote against, a transaction, or to abstain from voting in respect of that transaction. Section 11 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11A: Criminal liability for false or misleading statement or information
A person who contravenes section 11 see section 43 Section 11A inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11B: False or misleading appearance of trading, etc
A person must not do, or omit to do, anything if—
a: the act or omission will have, or is likely to have, the effect of creating, or causing the creation of, a false or misleading appearance—
i: with respect to the extent of active trading in the securities of a public issuer; or
ii: with respect to the supply of, demand for, price for trading in, or value of those securities; and
b: the person knows or ought reasonably to know that the person's act or omission will, or is likely to have, that effect. Section 11B inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11C: Presumption as to false or misleading appearance of trading, etc
1: A person ( A section 11B
2: A person ( A section 11B
a: A has made an offer to trade the securities of a public issuer; and
b: either A or, to A's knowledge, A's associate, has made or proposes to make an opposite offer (the opposite offer
c: the opposite offer substantially matches A's offer as to the number and price of the securities.
3: There is no presumption under subsection (1) or subsection (2), and it is a defence in any proceeding against A for contravention of section 11B
4: There is no presumption under subsection (1), and it is a defence in any proceeding against A for contravention of section 11B
a: in trading the securities A was acting on behalf of another person; and
b: A did not know, and ought not reasonably to have known, when trading the securities that no change in beneficial ownership would result. Section 11C inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11D: Criminal liability for false or misleading appearance of trading, etc
A person who contravenes section 11B see section 43
a: with respect to the extent of active trading in the securities of a public issuer; or
b: with respect to the supply of, demand for, price for trading in, or value of those securities. Section 11D inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Futures contracts Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
11E: Application of subpart 1 to insider conduct in relation to futures contract
This subpart applies, with the following modifications and exceptions, to insider conduct in relation to a futures contract that is listed on an authorised futures market
a: the term information insider of a public issuer
b: the term information insider of the public issuer
c: the term material information relating to the public issuer
i: the futures contract; or
ii: the underlying commodity, index, or asset that is the subject of the futures contract; or
iii: the issuer of a security underlying the futures contract:
d: the term security
e: the term trade the securities of the public issuer
f: the term trade or hold securities of the public issuer
g: section 8A(2) A public issuer of a security underlying a futures contract may be an information insider in relation to that futures contract
h: all other necessary modifications. Section 11E inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Section 11E amended 1 May 2011 section 7 Securities Markets Amendment Act 2011
2: General dealing misconduct prohibition
Subpart 2 heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006 General dealing misconduct prohibition Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
12: Exceptions to section 11
Section 12 repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
13: Misleading or deceptive conduct generally (for dealings in listed and non-listed securities)
1: A person must not engage in conduct, in relation to any dealings in securities, that is misleading or deceptive or likely to mislead or deceive.
2: To make the position clear, this section applies more broadly than the rest of this Part and so applies to securities whether listed or non-listed and to all dealings in securities (not only trading). Section 13 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006 Exceptions Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
14: Exceptions for takeovers
1: Sections 11 13 Takeovers Act 1993
2: For the purposes of subsection (1), conduct in relation to a takeover offer Section 14 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
15: Exception for repurchase of shares by company
Section 13 Companies Act 1993 Section 15 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
16: Exception for offers of securities to public
Section 13 Securities Act 1978 Section 16 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
17: Exception for disclosure by investment advisers or brokers
Section 17 repealed 1 July 2011 section 50 Financial Advisers Amendment Act 2010 Territorial scope Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
18: Territorial scope of general dealing misconduct prohibition
Section 13
a: conduct in New Zealand; and
b: conduct outside New Zealand by any person resident, incorporated, or carrying on business in New Zealand to the extent that that conduct relates to dealings in securities that occur (in part or otherwise) within New Zealand. Section 18 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
18A: Commission may exercise public issuer's right of action
Section 18A repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
18B: Requirements for Commission exercising public issuer's right of action
Section 18B repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
18C: Procedural requirements for leave to exercise public issuer's right of action
Section 18C repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
18D: Powers of court for proceedings exercising public issuer's right of action
Section 18D repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006
18E: Proceedings must not be settled, compromised, or discontinued without approval
Section 18E repealed 29 February 2008 section 5 Securities Markets Amendment Act 2006 Liability under Fair Trading Act 1986 Heading inserted 29 February 2008 section 5 Securities Markets Amendment Act 2006
19: No liability under Fair Trading Act 1986 if not liable under this Part
A court hearing a proceeding brought against a person under the Fair Trading Act 1986 Section 19 substituted 29 February 2008 section 5 Securities Markets Amendment Act 2006
2: Disclosure
Part 2 heading substituted 1 December 2002 section 15 Securities Markets Amendment Act 2002
1: Continuous disclosure by public issuers
Subpart 1 inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002 Purpose of this subpart Heading inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002
19A: Purpose of this subpart
1: The purpose of this subpart is to provide for appropriate continuous disclosure by public issuers of material information that is not generally available to the market.
2: The following criteria are relevant to the implementation of that purpose (without limiting other relevant criteria):
a: promoting fair, orderly, and transparent listed markets:
b: providing an appropriate level of protection for investors:
c: ensuring that the benefits resulting from the continuous disclosure regime justify the costs, including the following costs:
i: the value that a public issuer gives up if the information is not kept confidential; and
ii: compliance costs for public issuers and registered exchanges in disclosing the information:
d: ensuring reasonable consistency and predictability in the application of the continuous disclosure regime:
e: avoiding unfair advantages resulting from inappropriate disclosure of information to some, but not all, investors:
f: recognising the importance to the New Zealand listed markets of attracting and retaining exchange participants and maintaining international competitiveness:
g:
h: recognising the importance of maintaining international best practices for continuous disclosure in listed markets:
i: any principles applying to the co-ordination of business law between Australia and New Zealand set out in any agreement or memorandum of understanding between the Governments of New Zealand and Australia. Section 19A inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002 Section 19A(2)(a) substituted 1 May 2011 section 8(1) Securities Markets Amendment Act 2011 Section 19A(2)(b) substituted 1 May 2011 section 8(1) Securities Markets Amendment Act 2011 Section 19A(2)(f) substituted 1 May 2011 section 8(2) Securities Markets Amendment Act 2011 Section 19A(2)(g) repealed 1 May 2011 section 8(2) Securities Markets Amendment Act 2011 Continuous disclosure obligation Heading inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002
19B: Public issuers must disclose in accordance with listing rules if continuous disclosure listing rules apply
1: A public issuer must notify information in accordance with the continuous disclosure provisions of the listing rules of a registered exchange if—
a: the public issuer is a party to a listing agreement with that exchange; and
b: the public issuer has information that those continuous disclosure provisions require it to notify; and
c: the information is material information that is not generally available to the market; and
d: no regulations under section 48E section 19C
2: Subsection (1) does not affect or limit the situations in which action can be taken (other than under Part 5 Section 19B inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002 Section 19B(1)(d) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 19B(2) amended 1 May 2011 section 9 Securities Markets Amendment Act 2011
19C: Public issuers must disclose in accordance with regulations if continuous disclosure regulations apply
A public issuer must notify information in accordance with the continuous disclosure provisions of regulations made under section 48E
a: regulations under section 48E
b: the public issuer is a party to a listing agreement with that exchange; and
c: the public issuer has information that those continuous disclosure provisions require it to notify; and
d: the information is material information that is not generally available to the market. Section 19C inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002 Section 19C amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 19C(a) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
19D: What are continuous disclosure provisions
For the purposes of this Act, continuous disclosure provisions registered exchange's securities market Section 19D inserted 1 December 2002 section 16 Securities Markets Amendment Act 2002 Section 19D amended 24 November 2009 section 22 Securities Markets Amendment Act 2009
19E: What is material information
Section 19E repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19F: What information is generally available to the market
Section 19F repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006 Enforcement by Commission Heading repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19G: Commission may make orders requiring disclosure or corrective statements
Section 19G repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19H: Notice and submissions on Commission's orders
Section 19H repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19I: Limited notice and submissions for urgent orders
Section 19I repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19J: Offence for failure to comply with Commission orders
Section 19J repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006 Enforcement—Civil remedies Heading repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19K: Court may make orders requiring disclosure or corrective statements
Section 19K repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19L: Court may impose pecuniary penalties
Section 19L repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19M: Court may make compensatory orders
Section 19M repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19N: Court may order payment of costs
Section 19N repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19O: General provisions as to court's orders
Section 19O repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19P: Persons entitled to appear before court
Section 19P repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19PA: No contravention of continuous disclosure provisions by person who takes reasonable steps to ensure public issuer complies
A person ( A
a: A took all steps (if any) that were reasonable in the circumstances to ensure that the public issuer complied with the obligation or term or condition; and
b: after doing so, A believed on reasonable grounds that the public issuer was complying with the obligation or term or condition. Section 19PA inserted 29 February 2008 section 6 Securities Markets Amendment Act 2006 Regulations requiring continuous disclosure Heading repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19Q: Regulations requiring continuous disclosure
Section 19Q repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19R: Requirements for regulations replacing continuous disclosure listing rules
Section 19R repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19S: Ongoing requirements for continuous disclosure regulations
Section 19S repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
2: Disclosure of relevant interests by directors and officers of public issuers
Subpart 2 inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Directors' and officers' disclosure obligations Heading inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19SA: Purpose of subpart
The purpose of this subpart is to promote good corporate governance, and to deter and assist in the monitoring of insider conduct and market manipulation, by—
a: ensuring that information about directors' and officers' trading activities in public issuers is available to participants in New Zealand's securities markets; and
b: enabling the dates of trades to be checked against the dates at which material information became generally available to the market. Section 19SA inserted 29 February 2008 section 7 Securities Markets Amendment Act 2006
19T: Directors and officers of public issuers must disclose relevant interests and dealings in relevant interests
1: A director or officer of a public issuer who has a relevant interest in a security of the public issuer or a related body corporate must disclose that fact, in accordance with section 19U
a: the listing of the public issuer; or
b: the person's appointment as a director or officer; or
c: the commencement of this section.
2: A director or officer of a public issuer who acquires or disposes of a relevant interest in a security of the public issuer or a related body corporate must disclose that fact, in accordance with section 19U
3: This section is subject to sections 19U to 19Y Section 19T inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19U: What disclosure required
1: The director or officer must disclose the relevant interest, acquisition, or disposal—
a: to the registered exchange with which the public issuer is listed; and
b: in the interests register of the public issuer kept under this subpart.
2: The director or officer must also disclose, as required by regulations made under section 49 Section 19U inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19V: Form and method of disclosure
The director or officer must disclose the relevant interest, acquisition, or disposal in accordance with any regulations made under section 49 Section 19V inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19W: Disclosure obligation applies for 6 months after ceasing to hold office
A person is treated as a director or officer for the purposes of this subpart for 6 months after that person ceases to be a director or officer, and must continue to comply with this subpart for that period. Section 19W inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Exemptions Heading inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19X: Exemptions for directors or officers of co-operative companies
1: A director or officer of a co-operative company who has a relevant interest in a non-listed security of that company does not have to disclose that fact under section 19T
a: the director or officer is a transacting shareholder of the company; and
b: the interest was acquired by the director or officer in the ordinary course of business.
2: A director or officer of a co-operative company who acquires or disposes of a relevant interest in a non-listed security of that company does not have to disclose that fact under section 19T
a: the director or officer is a transacting shareholder of the company; and
b: the director or officer acquires or disposes of the interest in the ordinary course of business.
3: For the avoidance of doubt and for the purposes of subsections (1) and (2), a person is not acting outside the ordinary course of business merely because the person acquires or disposes of non-listed securities in the company in connection with the person acquiring or disposing of a business or business assets. Section 19X inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19Y: Exemptions granted by
FMA The directors' and officers' disclosure obligations are subject to any exemptions granted by the FMA section 48 section 49 Section 19Y inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Section 19Y heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 19Y amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Interests register Heading inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002
19Z: Public issuer must keep interests register
1: A public issuer must keep an interests register for disclosures under this subpart.
2: The interests register must be kept at—
a: the registered office of the public issuer; or
b: any other place in New Zealand, of which notice is given in accordance with subsection (2A).
2A: If the interests register is not kept at the public issuer's registered office, or the place at which it is kept is changed, the public issuer must give written notice to the Registrar of Companies of the place at which it is kept within 10 working days of its first being kept elsewhere or of its being moved.
3: The interests register may be the same interests register as that kept under section 189(1)(c)
4: This section and section 19ZA Companies Act 1993 Section 19Z inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Section 19Z(2) substituted 29 February 2008 section 8 Securities Markets Amendment Act 2006 Section 19Z(2A) inserted 29 February 2008 section 8 Securities Markets Amendment Act 2006
19ZA: Inspection and copying of interests register
1: The interests register must be kept open for inspection by any person.
2: The interests register must be open for inspection between the hours of 9 am and 5 pm on each working day during the inspection period.
3: In subsection (2), inspection period
4: A person may require a copy of, or extract from, an interests register to be sent to that person—
a: within 5 working days after the person has made a request in writing for the copy or extract; and
b: if the person has paid a reasonable copy and administration fee determined by the public issuer. 1993 No 105 ss 217 218 Section 19ZA inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Section 19ZA(4) substituted 29 February 2008 section 9 Securities Markets Amendment Act 2006 Enforcement—Civil remedies Heading repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19ZB: Commission may make orders requiring disclosure
Section 19ZB repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19ZC: Notice, submissions, and opportunity to be heard and represented on Commission's orders
Section 19ZC repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006 Offences Heading substituted 29 February 2008 section 14 Securities Markets Amendment Act 2006
19ZD: Offence for failure to comply with directors' and officers' disclosure obligation
1: Every person who is aware or ought reasonably to be aware of information that the person is required to disclose under section 19T ( see section 43A
2: Section 19ZD inserted 3 May 2004 section 16 Securities Markets Amendment Act 2002 Section 19ZD(1) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 19ZD(2) repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19ZE: Offence for failure to comply with Commission orders
Section 19ZE repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
19ZF: Offences relating to interests register
1: A person who fails, without reasonable excuse, to comply with section 19Z(1) see section 43A
2: If a person fails, without reasonable excuse, to provide a copy of, or extract from, an interests register in accordance with a request under section 19ZA see section 43A Section 19ZF substituted 29 February 2008 section 10 Securities Markets Amendment Act 2006
3: Disclosure of interests of substantial security holders in public issuers
Subpart 3 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
20: Purpose of subpart
The purpose of this subpart is to promote an informed market, and to deter insider conduct, market manipulation, and secret dealings in potential takeover bids, by ensuring that participants in New Zealand's securities markets have access to information concerning the identity and trading activities of persons who are, or may at any time be, entitled to control or influence the exercise of significant voting rights in a public issuer. Section 20 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
21: Meaning of substantial security holder, substantial holding, and percentage
1: A person is a substantial security holder
2: A person has a substantial holding
3: A person has a separate substantial holding for the purposes of this Act for each class in respect of which the person has a substantial holding under subsection (2).
4: The percentage of securities that a person has in a class, for the purposes of this subpart, is calculated as follows: if— number held total Section 21 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Event disclosure obligations Heading inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
22: Persons must disclose if begin to have substantial holding
1: A person who begins to have a substantial holding (or another substantial holding for another class) in a public issuer must disclose that fact in accordance with sections 26 27
2: The disclosure must be given as soon as the person knows, or ought to know, that the person has the substantial holding. Section 22 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
23: Substantial security holders must disclose if subsequent movement of 1% in holdings
1: A substantial security holder in a public issuer must disclose, in accordance with sections 26 27
2: There is a movement of 1% or more in a substantial holding if—
a: there is a change in the number of securities held by the substantial security holder (where number held section 21(4)
b: the percentage worked out using the formula in section 21(4)
3: The disclosure must be given as soon as the person knows, or ought to know, that that movement has occurred. Section 23 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
24: Substantial security holders must disclose if subsequent changes in nature of relevant interests
1: A substantial security holder in a public issuer must disclose, in accordance with sections 26 27
2: The disclosure must be given as soon as the person knows, or ought to know, of the change. Section 24 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
25: Persons must disclose if cease to have substantial holding
1: A person who ceases to have a substantial holding (or any of the person's substantial holdings) in a public issuer must disclose that fact in accordance with sections 26 27
2: The disclosure must be given as soon as the person knows, or ought to know, that the person has ceased to have a substantial holding. Section 25 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
26: What disclosure required
1: A person must disclose the matters required to be disclosed under any of sections 22 to 25 section 34
a: the public issuer; and
b: every registered exchange by which the securities of the public issuer are listed.
2: The person must also disclose, as required by regulations made under section 49A
3: The disclosure must also be accompanied by, or have annexed, anything required by regulations made under section 49A Section 26 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
27: Form and method of disclosure
The person must give the disclosure in accordance with any regulations made under section 49A Section 27 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
28: Public issuer must give acknowledgment of disclosure
Every public issuer must, at the request of a person by whom disclosure is given to it under this subpart, give to that person an acknowledgment of the disclosure in the manner required by regulations made under section 49A Section 28 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
29: How to ascertain total voting securities in class of public issuer's voting securities for purposes of disclosure
1: For the purposes of this subpart, a person may assume that the total number of securities of a public issuer in a class most recently published by the following methods is correct:
a: in a document published by a public issuer and distributed to the holders of that class of securities; or
b: on a website maintained by the relevant registered exchange.
2: Subsection (1) does not apply if that person knows that number is not correct. Section 29 substituted section 11 Securities Markets Amendment Act 2006
30: Exemption for persons with interest in other substantial security holders who comply
A person ( A sections 22 to 25
a: another person ( B
b: A has that substantial holding merely for 1 or more of the following reasons:
i: A has a power to exercise, or control the exercise of, the right to vote attached to 20% or more of the securities of B ( see section 5B(1)(b)
ii: A has a power to acquire or dispose of, or control the acquisition or disposition of, 20% or more of the securities of B ( see section 5B(1)(c)
iii: A and B are related bodies corporate ( see section 5B(1)(d) Section 30 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
31: Exemption for trustee corporations and nominee companies
1: A person ( A sections 22 to 25
a: A has that substantial holding merely because A acts for another person in the ordinary course of business as a trustee corporation or a nominee company; and
b: A has opted in to this exemption by written notice to the FMA FMA
2: Subsection (1) does not apply if A is currently designated by the FMA Gazette section 48C Section 31 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Section 31(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 31(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
32: Conditions of exemption for trustee corporations and nominee companies
1: A person ( A section 31(1)
a: keep under continuing review the transactions of all persons for whom A holds listed voting securities in A's name; and
b: inform the public issuer of the securities and the registered exchange by which those securities are listed if section 22 section 25
c: inform that registered exchange if it exercises, or proposes to exercise, in its own right any voting rights in respect of 5% or more of a class of listed voting securities of a public issuer.
2: Every person who, without reasonable excuse, fails to comply with subsection (1) commits an offence ( see section 43A Section 32 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
32A: Exemption for persons under control or acting jointly with trustee corporations and nominee companies
1: A person ( A sections 22 to 25 section 5B section 31
2: Subsection (1) does not apply if A is currently designated by the FMA Gazette section 48C Section 32A inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Section 32A(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
33: Extended time for disclosure for trustees, executors, and administrators
If a person is required to comply with sections 22 23 25
a: the time limit for disclosure in that section does not apply; and
b: the disclosure must instead be given before the expiry of 14 days after the grant of administration under the Administration Act 1969 Section 33 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Required disclosure obligations Heading inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
34: FMA
1: The FMA
a: relevant interests that the person has in securities of the public issuer; or
b: powers that the person has or may at any time have to acquire a relevant interest in securities of the public issuer.
2: It does not matter whether the securities referred to in subsection (1)(a) and (b) are voting securities or not, listed or non-listed, or issued or yet to be issued.
3: The person must disclose the information required under subsection (1) in accordance with sections 26 27
4: Whether or not a person has a power referred to in subsection (1) must be determined in the same way as sections 5 to 5B Section 34 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Section 34 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 34(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
35: Public issuer may require registered holder to disclose relevant interests to it
1: A public issuer may, by written notice, require a person who is registered as the holder of listed voting securities in that public issuer to disclose—
a: the name and address of every person who has a relevant interest in those listed voting securities and the nature of that interest; and
b: to the extent that that registered holder is unable to supply any of that information in relation to a person having a relevant interest in those listed voting securities, other particulars that will, or are likely to, assist in identifying that person and the nature of that interest.
2: That registered holder must disclose that information in writing to the public issuer as soon as the holder receives the notice. Section 35 substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35A: Public issuer may require person who has relevant interest to disclose information to it
1: A public issuer may, by written notice, require a person who the public issuer believes has, or may have, a relevant interest in listed voting securities in that public issuer to disclose the information the public issuer specifies for the purpose of assisting the public issuer to ascertain who is, or may be, a substantial security holder in the public issuer.
2: That relevant interest holder must disclose that information in writing to the public issuer as soon as the holder receives the notice. Section 35A substituted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35B: Form and method of notice requiring disclosure
The notice requiring disclosure under section 34 35 35A section 49A Section 35B inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Offence Heading inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35BA: Offence for failure to comply with substantial holding disclosure obligation
Every person who knows or ought to know information that the person is required to disclose under any of sections 22 to 25 34 to 35A see section 43A Section 35BA inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Register and publication of substantial holdings Heading inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35C: Public issuers must maintain register of disclosures of substantial holdings
1: The public issuer must keep a register for the disclosures given to it under this subpart (and must include a disclosure in the register on receiving it).
2: Subsection (1) does not apply to disclosures made under section 35 section 35A
3: The disclosures must be kept in the register in alphabetical order and with a chronological index.
4: The register must be kept at—
a: the registered office of the public issuer; or
b: any other place in New Zealand, of which notice is given in accordance with subsection (5).
5: If the register is not kept at the public issuer's registered office, or the place at which it is kept is changed, the public issuer must give written notice to the Registrar of Companies of the place at which it is kept within 10 working days of its first being kept elsewhere or its being moved.
6: This section and section 35D Companies Act 1993 Section 35C inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35D: Inspection and copying of substantial holdings register
1: The register required under section 35C
2: The register must be open for inspection between the hours of 9 am and 5 pm on each working day during the inspection period.
3: In subsection (2), inspection period
4: A person may require a copy of, or extract from, a register to be sent to that person—
a: within 5 working days after the person has made a request in writing for the copy or extract; and
b: if the person has paid a reasonable copy and administration fee determined by the public issuer. Section 35D inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35E: Offences relating to substantial holdings register
1: Every person who, without reasonable excuse, fails to comply with a requirement of section 35C section 35D see section 43A
2: If a person fails, without reasonable excuse, to provide a copy of, or extract from, the register kept under section 35C section 35D see section 43A Section 35E inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35F: Public issuers must publish information on substantial holdings
1: Every public issuer must, in accordance with this section, send out a notice stating—
a: the names of all persons who, according to the register kept under section 35C
b: the number and class of listed voting securities of the public issuer that, according to the register, form part of each substantial holding in the public issuer at the record date; and
c: the total number in each class of the public issuer's listed voting securities at the record date.
2: The notice must be sent—
a: for public issuers that are companies (other than overseas companies within the meaning of the Companies Act 1993
i: the annual report sent under section 209
ii: the notice sent under that section; and
b: for every other public issuer, to every holder of its listed voting securities not later than 30 June in each year.
3: The record date Section 35F inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Section 35F(2)(a)(ii) substituted 29 February 2008 section 16(3) Companies Amendment Act (No 2) 2006
35G: Registered exchange must publish disclosures
A registered exchange must—
a: notify each disclosure given to it under this subpart to the relevant registered market
b: publish that disclosure on its website soon after notifying it to the relevant registered market Section 35G inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006 Section 35G(a) amended 1 May 2011 section 10 Securities Markets Amendment Act 2011 Section 35G(b) amended 1 May 2011 section 10 Securities Markets Amendment Act 2011
35H: Offence for failing to publish information on substantial holdings or disclosures
1: A public issuer who, without reasonable excuse, fails to comply with a requirement of section 35F see section 43A
2: A registered exchange who, without reasonable excuse, fails to comply with a requirement of section 35G see section 43A Section 35H inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35I: No liability for publication of substantial holdings
No public issuer is liable for any false or misleading information published under section 35F Section 35I inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
35J: Notice under this subpart not to affect incorporation of public issuer or constitute notice of trust
1: Nothing in, or done under, this subpart—
a: affects the incorporation of a public issuer; or
b: limits section 92 93 94
2: A public issuer is not, by virtue of anything done for the purposes of this subpart, affected with notice of, or put on inquiry as to, the rights of any person in relation to any securities. Section 35J inserted 29 February 2008 section 11 Securities Markets Amendment Act 2006
36: Regulations for purpose of
this subpart Section 36 repealed 29 February 2008 section 11 Securities Markets Amendment Act 2006
2B: Registered markets
Part 2B inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Part 2B heading substituted 1 May 2011 section 11 Securities Markets Amendment Act 2011
1: Registration
of markets Subpart 1 inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Subpart 1 heading amended 1 May 2011 section 12 Securities Markets Amendment Act 2011 Restrictions on activities relating to securities exchanges unless registered under this subpart Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36A: No holding out as securities exchange unless registered under this subpart
1: No person may, in connection with carrying on business in New Zealand,—
a: use a style or title including the words stock exchange securities exchange
b: state or imply, or permit a statement or implication, that—
i: the person is a registered securities exchange or authorised securities exchange; or
ii: a securities market that the person operates is regulated under New Zealand law.
2: Subsection (1)(a) and (b)(i) do not apply to—
a: a registered exchange; or
b: a subsidiary of a registered exchange.
2A: Subsection (1)(b)(ii) does not apply to—
a: a registered exchange in respect of its registered market; or
b: a subsidiary of a registered exchange in respect of the exchange's registered market.
3: Every person who acts in contravention of subsection (1) commits an offence ( see section 43B Section 36A inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36A(2) substituted 1 May 2011 section 13 Securities Markets Amendment Act 2011 Section 36A(2A) inserted 1 May 2011 section 13 Securities Markets Amendment Act 2011 Section 36A(3) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
36B: No operation of securities markets unless registered under this subpart (if restriction applies)
1: No person to whom this section applies may operate a securities market in New Zealand unless that person is—
a: a registered exchange; or
b: a subsidiary of a registered exchange.
2: Every person who acts in contravention of subsection (1) commits an offence ( see section 43B Section 36B inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36B(2) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
36C: Power to apply and remove restriction on operating securities markets
1: The Minister may, by notice in the Gazette
a: declare, in accordance with section 36D section 36B
b: declare that section 36B
2: The notice may include any exemption granted under section 36E Section 36C inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36D: Criteria and process for applying restriction on operating securities markets
1: The Minister may declare that section 36B
a: the integrity or effectiveness of securities markets in New Zealand; or
b: the confidence of investors in securities markets in New Zealand.
2: The Minister must, before making the declaration,—
a: give at least 2 months' written notice of the proposed declaration, and of the Minister's reasons for his or her opinion under subsection (1), to—
i: the person to whom it is proposed to apply section 36B
ii: the FMA
iii: any other persons that the Minister thinks are representative of the interests of persons likely to be substantially affected by the proposed declaration; and
b: have regard to any submissions made by those persons within the notice period given; and
c: before making the declaration, give at least 14 days' written notice to the persons referred to in paragraph (a), and in the Gazette
3: A failure to comply with subsection (2) does not invalidate any notice published under section 36C Section 36D inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36D(2)(a)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36E: Power to exempt securities markets
and futures markets Part 2 and
1: The Minister may Part 2
2: The exemption may be on any terms or conditions that the Minister thinks fit.
2A: The Minister must, in considering whether to grant an exemption, have regard to—
a: the nature of the relevant securities or futures market, or class of securities or futures markets; and
b: the likely effect of the proposed exemption on the integrity or effectiveness of securities or futures markets in New Zealand; and
c: the likely effect of the proposed exemption on the confidence of investors in securities or futures markets in New Zealand; and
d: whether there are public benefits from the securities or futures market, or class of securities or futures markets, being operated under the proposed exemption; and
e: any other matters he or she considers relevant.
3: The exemption has effect according to its tenor.
4: In determining whether or not to grant an exemption, the Minister must seek the advice of the FMA
5: The Minister may vary an exemption in the same way as the exemption may be granted under this section.
6: The Minister may
7: An exemption under this section is a disallowable instrument under the Legislation Act 2012 section 41
8: A class exemption under this section must be published under section 6 Legislation Act 2012 class exemption
a: means an exemption of general application that applies to a class of securities markets or class of futures markets; but
b: does not include an exemption granted in relation to a particular securities market or futures market.
9: An exemption that is not a class exemption under subsection (8) must, as soon as practicable after being granted, be—
a: published on an Internet site maintained by or on behalf of the FMA; and
b: notified in the Gazette
c: made available in printed form for purchase on request by members of the public.
10: A notification in the Gazette Section 36E inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36E heading amended 1 May 2011 section 14(1) Securities Markets Amendment Act 2011 Section 36E heading amended 24 November 2009 section 6(1) Securities Markets Amendment Act 2009 Section 36E(1) substituted 24 November 2009 section 6(2) Securities Markets Amendment Act 2009 Section 36E(1) amended 5 August 2013 section 77(3) Legislation Act 2012 Section 36E(1) amended 1 May 2011 section 14(2) Securities Markets Amendment Act 2011 Section 36E(2A) inserted 1 May 2011 section 14(3) Securities Markets Amendment Act 2011 Section 36E(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36E(6) amended 5 August 2013 section 77(3) Legislation Act 2012 Section 36E(7) inserted 5 August 2013 section 77(3) Legislation Act 2012 Section 36E(8) inserted 5 August 2013 section 77(3) Legislation Act 2012 Section 36E(9) inserted 5 August 2013 section 77(3) Legislation Act 2012 Section 36E(10) inserted 5 August 2013 section 77(3) Legislation Act 2012 How to obtain registration of market Heading substituted 1 May 2011 section 15 Securities Markets Amendment Act 2011
36F: Application for market registration
1: A body corporate may apply for a market registration for—
a: 1 or more securities markets; or
b: 1 or more securities markets and 1 or more futures markets; or
c: 1 or more futures markets, if the body corporate already holds a market registration for a securities market.
2: The applicant for a market registration must deliver to the FMA—
a: an application for registration in the form, and containing the information, required by the FMA, but which must—
i: include a copy of any proposed new market rules, or proposed changes to existing market rules, for the relevant market (the proposed market rules
ii: identify any existing market rules that it proposes to apply to the relevant market; and
b: any fees required to be paid to the FMA by regulations made under section 49D
3: The FMA must grant the applicant a market registration, by written notice to the applicant, after—
a: receipt of the documents referred to in subsection (2)
b: receipt of any fees, charges, and costs required to be paid to the FMA by regulations made under section 49D
c: approval, under sections 36K 36L subsection (2)(a)(i) Section 36F substituted 1 May 2011 section 15 Securities Markets Amendment Act 2011
36FA: Notification of market registration
1: A notice of market registration under section 36F(3)
a: must identify the market registered and the person that holds the market registration under that section (the registered exchange
b: must identify the proposed market rules approved for the market (if any), and must identify the existing market rules that apply to the market (if any), but need not incorporate them; and
c: is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012
ca: must be presented to the House of Representatives under section 41
d: must, as soon as practicable after it is given, be—
i: published on an Internet site maintained by or on behalf of the FMA; and
ii: notified in the Gazette
2: A notice of market registration may relate to more than 1 market. Section 36FA inserted 1 May 2011 section 15 Securities Markets Amendment Act 2011 Section 36FA(1)(c) replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 36FA(1)(ca) inserted 5 August 2013 section 77(3) Legislation Act 2012 Restrictions on registered exchanges Heading inserted 1 May 2011 section 15 Securities Markets Amendment Act 2011
36FB: No operation by registered exchange of unregistered market
1: No registered exchange may operate in New Zealand a securities or futures market for which it does not hold a market registration under this Part or an authorisation under Part 3 see section 36E
2: Every person who acts in contravention of subsection (1) see section 43B(2) Section 36FB inserted 1 May 2011 section 15 Securities Markets Amendment Act 2011
1A: Market rules
Subpart 1A heading inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36FC: Purpose and criteria applying under this subpart
1: The purpose of this subpart is to provide for the approval of the market rules, and changes to the market rules, to apply to registered markets under contract between a registered exchange and the exchange participants.
2: The following criteria are relevant to the implementation of that purpose (without limiting other relevant criteria):
a: promoting fair, orderly, and transparent securities and futures markets:
b: providing an appropriate level of protection for investors:
c: recognising the importance to securities and futures markets of attracting and retaining exchange participants and maintaining international competitiveness:
d: encouraging growth and innovation in New Zealand's securities and futures markets:
e: recognising the importance of maintaining international best practices in New Zealand's securities and futures markets:
f: recognising New Zealand's obligations under any international convention, international agreement, or international arrangement to which the Government of New Zealand is a party.
3: The FMA must determine the weight to be given to each criterion in relation to the rules for any particular market, having regard to the nature of that market. Section 36FC inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011 Key requirements Heading substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36G: Registered markets must be operated under market rules that comply with this subpart
1: A registered exchange must operate each of its registered markets in accordance with market rules for that market that—
a: include the required matters set out in section 36H
b: have effect under section 36I
2: A registered exchange that acts in contravention of subsection (1) see section 43B(2) 1988 No 234 s 36G Section 36G substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36H: Required matters for market rules
1: Market rules for a securities market must—
a: include rules ( listing rules
i: relate to the approval of persons for the purpose of enabling securities issued by those persons to be traded on the securities market; and
ii: require those persons to be party to a listing agreement with the registered exchange and relate to the entry into, and revocation of, those listing agreements; and
iii: relate to the governance of those persons; and
iv: relate to the conduct or activities of those persons in relation to that market or to securities traded on that market; and
v: relate to the monitoring and enforcement of those rules; and
b: include rules ( business rules
i: relate to the authorisation of persons to undertake trading activities on, or otherwise participate in, the securities market; and
ii: relate to the conduct or activities of those persons in relation to the securities market; and
iii: govern the conduct of business on the securities market; and
iv: relate to the monitoring and enforcement of those rules.
2: Market rules for a futures market must include rules ( business rules
a: relate to the authorisation of persons to undertake trading activities on, or otherwise participate in, the futures market; and
b: relate to the conduct or activities of those persons in relation to the futures market; and
c: govern the conduct of business on the futures market; and
d: relate to the monitoring and enforcement of those rules. 1988 No 234 s 36H Section 36H substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36I: When market rules have effect
A market rule, or part of a market rule, for a registered market has no effect, either in contract or for the purposes of section 36G section 36L Section 36I substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011 Process for approving proposed market rules and changes to market rules Heading inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36IA: Application of process for approving proposed market rules and changes
Sections 36K 36L section 36F section 36J Section 36IA inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36J: Registered exchange must provide proposed changes to FMA
1: A registered exchange must provide any proposed change to its market rules for a registered market to the FMA before making that change.
2: A change 1988 No 234 s 36J Section 36J substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36K: Approval process for proposed market rules and changes
1: The FMA must, within the approval period, by written notice to the applicant for registration or the registered exchange,—
a: approve the proposed market rules or change provided under section 36F section 36J see section 36L
b: extend the approval period; or
c: decline to approve the proposed market rules or change.
2: The approval period is 40 working days, or (if extended under subsection (1)(b)
3: The revision by the applicant or registered exchange of the proposed market rules or change during the approval period in response to comments by the FMA, and the resubmittal of the revised proposed market rules or change, does not result in the commencement of a new approval period under this section.
4: A notice under this section—
a: must identify the market rules, change, or changes to which it relates, but need not incorporate them; and
b: is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012
ba: must be presented to the House of Representatives under section 41
c: must, as soon as practicable after it is given, be—
i: published on an Internet site maintained by or on behalf of the FMA; and
ii: notified in the Gazette
5: A separate notice under this section of the decision to approve rules is not needed if there is a notice of market registration under section 36FA
6: The FMA's reasons for a decision under subsection (1)(b) or (c) Section 36K substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011 Section 36K(4)(b) replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 36K(4)(ba) inserted 5 August 2013 section 77(3) Legislation Act 2012
36L: Approval of proposed market rules and changes
1: The FMA must approve the proposed market rules or a change provided to it under this Part unless the FMA is satisfied that—
a: it is not in the public interest to do so after having had regard to—
i: the consistency of the rules or change with the obligations under section 36Y
ii: the criteria stated in section 36FC
b: (if the rules include listing rules or the change affects listing rules) the listing rules, or the listing rules as changed, for the market will not achieve the purpose of subpart 1
i: that purpose; and
ii: the criteria stated in section 19A
iii: any other matters that the FMA considers relevant.
2: The FMA must, in considering whether to approve proposed market rules provided under section 36F Section 36L substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011 Power to request changes to market rules Heading inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36M: Power for FMA to request changes to market rules on certain matters
1: The FMA may, if it considers it necessary or desirable to promote any of the criteria set out in section 36FC section 36Y
2: The FMA may make a request under subsection (1)
a: after carrying out a review under section 36YB(1) or (2)
b: if it believes on reasonable grounds that it is urgent to do so at any other time.
3: The registered exchange must, as soon as practicable but, in any case, before the expiry of 60 working days after receiving the written notice (or any further time allowed by the FMA), do either or both of the following things:
a: provide a proposed change to the FMA under section 36J
b: provide the FMA with a written report that—
i: identifies any requested matter or matters that have not been addressed by a proposed change; and
ii: explains why the registered exchange has not done so; and
iii: suggests alternative ways (if any) by which the matter or matters are being or may be dealt with; and
iv: sets out if, when, and how the registered exchange proposes to provide for the matter or matters (if at all).
4: This section does not allow the FMA to request a draft market rule or change on a matter that is not within the matters set out in section 36H Section 36M substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011 Miscellaneous provisions on market rules Heading inserted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36N: Market rules must be available for public inspection
1: A registered exchange must ensure that a copy of the market rules for each of its registered markets are—
a: available for public inspection, free of charge and during normal office hours, at the head office of that registered exchange; and
b: published on an Internet site maintained by, or on behalf of, the registered exchange at all reasonable times.
2: A registered exchange that fails to comply with subsection (1) see section 43B 1988 No 234 s 36Q Section 36N substituted 1 May 2011 section 16 Securities Markets Amendment Act 2011
36O: Application of Acts relating to regulations to contractual market rules
To avoid doubt, market rules are not—
a: regulations for any purpose; or
b: legislative instruments or disallowable instruments for the purposes of the Legislation Act 2012 1988 No 234 s 36R Section 36O replaced 5 August 2013 section 77(3) Legislation Act 2012
36P: Registered exchange must not operate new
Section 36P repealed 1 May 2011 section 16 Securities Markets Amendment Act 2011
36Q: Conduct rules must be available for public inspection
Section 36Q repealed 1 May 2011 section 16 Securities Markets Amendment Act 2011
36R: Application of Acts relating to regulations to conduct rules
Section 36R repealed 1 May 2011 section 16 Securities Markets Amendment Act 2011
1B: Control limits for registered exchanges
Subpart 1B heading inserted 1 May 2011 Securities Markets Amendment Act 2011
36S: Power to impose control limits on registered exchanges
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations imposing, altering, or revoking a control limit (which is the highest percentage of voting rights in the body corporate that may be held or controlled by any person) for a body corporate that—
a: is, or may be, a registered exchange; or
b: is a holding company of a body corporate referred to in paragraph (a).
2: A control limit does not apply to a body corporate before its registration, or its subsidiary's registration, as a registered exchange.
3: The Minister must not make a recommendation for the purposes of subsection (1) unless he or she has consulted the body corporate and is satisfied that it is in the public interest to do so.
4: For the purposes of this section and the rest of the subpart— control voting right
a: during a period in which a payment or distribution (or part of a payment or distribution) in respect of the security that confers the voting right is in arrears or some other default exists:
b: on a proposal that affects rights attached to the security that confers the voting right:
c: during the liquidation of the body corporate:
d: in respect of a special, immaterial, or remote matter that is inconsequential to control of the body corporate. Section 36S inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36T: Control limit not to be exceeded
1: No person may hold or control voting rights in a body corporate that exceed any control limit for that body corporate that applies under regulations made under section 36S(1) section 36V
2: For the purposes of this section, voting rights held or controlled by an associated person of a person must be treated as voting rights held or controlled by that person.
3: Subsection (1) does not apply to any voting rights in a body corporate held or controlled by a person to the extent that those rights were held or controlled by that person before the control limit was imposed or decreased, as the case may be.
4: In this section,—
a: a person is an associated person
i: they are acting jointly or in concert; or
ii: either person acts, or is accustomed to act, in accordance with the wishes of the other person; or
iii: they are related bodies corporate within the meaning of section 5(7)
iv: either person is able, directly or indirectly, to exert a substantial degree of influence over the activities of the other; or
v: they are both, directly or indirectly, under the control of the same person; but
b: a director of a company or other body corporate is not an associated person of that company or body corporate merely because he or she is a director of that company or body corporate. Section 36T inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36T(4) added 29 February 2008 section 14 Securities Markets Amendment Act 2006
36U: Effect of exceeding control limit
1: Every person who contravenes section 36T(1)
a: take the steps that are necessary to ensure that the person is no longer in contravention of that subsection at the end of 90 days after the date of first contravention; and
b: while he or she contravenes that subsection, not exercise or control the exercise of any voting rights that exceed the control limit.
2: Every person who contravenes subsection (1)(a) commits an offence ( see section 43B
3: An exercise of voting rights by or under the control of a person in contravention of subsection (1)(b) is of no effect, and must be disregarded by the person responsible for counting the votes concerned. Section 36U inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36U(2) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
36V: Application for approval to exceed control limit
1: A person may apply to the chief executive for approval for any person or class of persons to exceed a control limit for a body corporate that applies under regulations made under section 36S
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, approve an application under subsection (1) and specify the terms and conditions (if any) applying to the approval.
3: The Minister may not make a recommendation for the purposes of subsection (2) unless,—
a: if the body corporate is not the applicant or one of the applicants for the approval, he or she has consulted the body corporate on the application at least 30 days before making the recommendation; and
b: he or she is satisfied that it is in the public interest to make the recommendation.
4: An approval granted under subsection (2)—
a: may have retrospective effect; but
b: is of no effect if any term or condition of the approval has not been complied with.
5: An approval granted under subsection (2) is for the purposes of the control limit only, and not for the purposes of any other enactment. Section 36V inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36W: Revocation or amendment of approval
1: The Governor-General may, by Order in Council made on the recommendation of the Minister,—
a: revoke an approval granted under section 36V
b: vary, revoke, or suspend any term or condition of such an approval.
2: The Minister may not make a recommendation for the purposes of subsection (1) unless—
a: he or she has consulted the person to whom the approval was granted and the body corporate concerned; and
b: he or she is satisfied that it is in the public interest to make the recommendation. Section 36W inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Overseas exchanges Heading repealed 1 May 2011 section 18 Securities Markets Amendment Act 2011
36X: Overseas exchanges
Section 36X repealed 1 May 2011 section 18 Securities Markets Amendment Act 2011
2: Obligations and oversight in respect of registered markets
Subpart 2 inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Subpart 2 heading substituted 1 May 2011 section 19 Securities Markets Amendment Act 2011 General obligations in respect of registered markets Heading inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36Y: General obligations in respect of registered markets
A registered exchange must,—
a: to the extent that it is reasonably practicable, do all things necessary to ensure that each of its registered markets is a fair, orderly, and transparent market; and
b: have adequate arrangements for operating its registered markets, including arrangements—
i: for handling conflicts between the commercial interests of the registered exchange and the need for the registered exchange to ensure that the markets operate in the way referred to in paragraph (a); and
ii: for monitoring the conduct of exchange participants on or in relation to the markets; and
iii: for enforcing compliance with the relevant market rules; and
iv: that ensure there is a sufficiently independent adjudicative body to adjudicate on contraventions of market rules that are referred to it; and
c: have sufficient resources (including financial, technological, and human resources) to operate its registered markets properly. Section 36Y substituted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YA: Registered exchange must give annual report to FMA
1: A registered exchange must, within 3 months after the end of its financial year, give a report to the FMA and the Minister on the extent to which it has complied with its obligations under section 36Y
2: The annual report for a financial year must contain, or be accompanied by, the information (if any) in relation to the registered exchange's performance against its obligations under section 36Y
3: The FMA and the registered exchange may, on the terms and conditions that they think fit, agree that the first annual report and the first review under section 36YB Section 36YA inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YB: FMA may carry out general obligations review
1: The FMA may, at any time, carry out a review of how well a registered exchange is meeting any or all of its obligations under section 36Y
2: The FMA must carry out a review of how well a registered exchange is meeting all of its obligations under section 36Y
3: The FMA—
a: may, in carrying out the review, take into account the most recent annual report and other information provided under section 36YA
b: must, after carrying out the review, provide a draft written report on its review to the registered exchange and take into account any submissions made by the exchange within the reasonable period for submissions specified by the FMA.
4: The FMA must not carry out a review of a designated settlement system (within the meaning of section 156M(1)
5: The first review of a financial year under subsection (2) section 36YA Section 36YB inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YC: FMA must make written report on general obligations review
1: The FMA must give a written report on a review under section 36YB
a: as soon as practicable after carrying out the review; and
b: in any case, within 3 months after the exchange has provided an annual report to the FMA under section 36YA
2: The FMA must also publish the written report on the review on an Internet site maintained by or on behalf of the FMA.
3: However, the FMA may, in publishing the written report of its review, omit from the published report any information for which it considers there would be a good reason for withholding under the Official Information Act 1982 Section 36YC inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YD: FMA may require registered exchange to submit action plan on failure to meet general obligations
1: If the FMA considers that the registered exchange has failed or is failing to meet any 1 or more of its obligations under section 36Y section 36YB(1)
2: The notice must—
a: set out the details of the failure; and
b: specify the date by which the action plan must be submitted to the FMA.
3: The registered exchange must, as soon as practicable but in any case before the date specified by the FMA, do either or both of the following things:
a: provide an action plan that addresses the failure and specifies—
i: the actions that the registered exchange proposes to take to remedy the failure or avoid any further failure; and
ii: the timetable for taking those actions:
b: provide the FMA with a written report that—
i: identifies any matter that has not been addressed by an action plan; and
ii: explains why the registered exchange does not consider that matter to be a failure or gives any other reasons why the registered exchange has not provided an action plan on the matter. Section 36YD inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YE: Approval, amendment, or rejection of action plan
1: If a registered exchange submits an action plan, the FMA may—
a: approve the action plan; or
b: require the registered exchange to amend the action plan and resubmit it to the FMA by a specified date for approval or rejection; or
c: reject the action plan.
2: If the FMA requires the registered exchange to amend an action plan provided to the FMA, the registered exchange must do either or both of the following things:
a: provide an amended action plan that addresses the matter required to be amended:
b: provide the FMA with a written report that—
i: identifies any matter that has not been addressed by an amendment to the action plan first provided; and
ii: explains why the registered exchange does not consider that the matter needs amending or gives any other reasons why the registered exchange has not provided an amendment addressing the matter.
3: If the FMA approves the action plan (whether as first provided or after amendment), the registered exchange must comply with the action plan.
4: An action plan that has been approved by the FMA may be varied at any time by agreement between the registered exchange and the FMA. Section 36YE inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36YF: Minister may give general obligation direction to registered exchange
1: The Minister may, on the recommendation of the FMA, give a written direction to a registered exchange if—
a: the Minister considers that the registered exchange has failed or is failing to meet any 1 or more of its obligations under section 36Y
b: any of the following has occurred:
i: the registered exchange has not provided an action plan when required under section 36YD
ii: the registered exchange has not provided an amended action plan when required under section 36YE
iii: the FMA has rejected a registered exchange's action plan; or
iv: the registered exchange has not complied with an approved action plan.
2: The direction may specify—
a: the actions that the registered exchange must take to remedy any failure or avoid any further failure to meet any 1 or more of its obligations under section 36Y
b: the timetable for taking those actions.
3: The registered exchange must comply with the direction. Section 36YF inserted 1 May 2011 section 20 Securities Markets Amendment Act 2011
36Z: Offence for breach of terms or conditions of authorisation
Section 36Z repealed 1 May 2011 section 18 Securities Markets Amendment Act 2011 Enforcement of prohibition of certain statements relating to exchanges Heading repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
36ZA: Commission may make orders prohibiting statements relating to exchanges or requiring corrective statements
Section 36ZA repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
36ZB: Notice, submissions, and opportunity to be heard and represented on Commission's orders
Section 36ZB repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006
36ZC: Offence for contravening prohibition order
Section 36ZC repealed 29 February 2008 section 14 Securities Markets Amendment Act 2006 Notification of disciplinary actions and suspected contraventions Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZD: Registered exchange must notify
FMA
1: A registered exchange must notify the FMA sections 36ZE 36ZF
a: the exchange takes any disciplinary action for a contravention of its market rules
b: the exchange knows or suspects that a person has committed, is committing, or is likely to commit a significant contravention of—
i: the exchange's market rules
ii: this Act, the Securities Act 1978 Takeovers Act 1993
2: The FMA must notify the registered exchange of its decision to take, or not to take, any action in relation to a notification under subsection (1)(b)(ii). Section 36ZD inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZD heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZD(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZD(1)(a) amended 1 May 2011 section 21(1) Securities Markets Amendment Act 2011 Section 36ZD(1)(b)(i) amended 1 May 2011 section 21(1) Securities Markets Amendment Act 2011 Section 36ZD(2) added 1 May 2011 section 21(2) Securities Markets Amendment Act 2011
36ZE: When notification required
The registered exchange must give the notice under section 36ZD Section 36ZE inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZF: Details and method of notification
1: The notice under section 36ZD
a: the person's name and contact details; and
b: if it relates to a disciplinary action, the grounds for, nature of, and reasons for the action taken; and
c: if it relates to a known or suspected contravention, the facts supporting the registered exchange's view and to which obligation the known or suspected contravention relates; and
d: any other information required by regulations under section 49D FMA section 36ZK
2: The registered exchange must give the notice in the form and by the method required by any regulations made under section 49D Section 36ZF inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZF(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZF(1)(d) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 36ZF(2) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Real-time surveillance information Heading inserted 1 May 2011 section 22 Securities Markets Amendment Act 2011
36ZFA: Registered exchange must ensure FMA has access to real-time trading and other information
1: A registered exchange must, if requested by the FMA, give to the FMA the information that is necessary to enable the FMA to carry out real-time surveillance of the operation of the exchange's registered markets.
2: The FMA must pay all reasonable costs of the registered exchange in providing the information under this section. Section 36ZFA inserted 1 May 2011 section 22 Securities Markets Amendment Act 2011 Disclosure of material information Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZG: Registered exchange must give
FMA If a registered exchange makes material information available to participants, or any class of participants, of a registered market FMA sections 36ZH to 36ZJ Section 36ZG inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZG heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZG amended 1 May 2011 section 23 Securities Markets Amendment Act 2011 Section 36ZG amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZH: When disclosure of material information required
The registered exchange must give the information under section 36ZG FMA Section 36ZH inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZH amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZI: Form and method of disclosure
The registered exchange must give the information under section 36ZG FMA Section 36ZI inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZI amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Waiver of notification and disclosure obligations Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZJ: Waiver of notification and disclosure obligations
1: Sections 36ZD to 36ZI FMA
a: waives its entitlement to any notice or information or class or classes of notices or information; or
b: agrees with the registered exchange a different time, form, or method of notification or disclosure.
2: A waiver or agreement under this section must be in writing. Section 36ZJ inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZJ(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 General information and assistance provisions Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZK: Registered exchange must give
FMA
1: A registered exchange must give to the FMA FMA FMA
2: The FMA Section 36ZK inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZK heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZK(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZK(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZL: Power to disclose further information
1: A registered exchange may provide to the FMA FMA FMA's
2: A registered exchange may provide to the Takeovers Panel any information that the exchange considers may assist the Takeovers Panel in the performance of its functions. Section 36ZL inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZL(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZL(1) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Notice and submissions on continuous disclosure determinations Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZM: Registered exchange must give notice and have regard to submissions on continuous disclosure determinations
1: This section and section 36ZN
a: the determination exempts from, waives, or determines the meaning of a continuous disclosure provision of its listing rules for any of its registered markets
b: that continuous disclosure provision relates to material information that is not generally available to the market; and
c: no regulations under section 48E section 19C
2: The registered exchange must—
a: give the FMA
i: the proposed terms of the determination; and
ii: the reasons for the proposed determination; and
b: have regard to any written submissions made to it by the FMA
c: must, as soon as reasonably practicable after making the determination, give written notice to the FMA
i: the terms of the determination; and
ii: the reasons for the determination.
3: A failure to comply with this section or section 36ZN Section 36ZM inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZM(1)(a) amended 1 May 2011 section 24 Securities Markets Amendment Act 2011 Section 39ZM(1)(c) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 36ZM(2)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZM(2)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZM(2)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZN: Limited notice and submissions for urgent determinations
If the registered exchange thinks it necessary or desirable in the public interest for a determination to be made more urgently than section 36ZM(2)
a: it may give less than 2 trading days' notice before it makes the determination and the notice and submissions may be oral, not written; but
b: it must include in that notice the reasons for acting urgently and must otherwise comply with that subsection. Section 36ZN inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Directions to exchanges Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZO: FMA
1: The FMA to a registered exchange in relation to any of its registered markets sections 36ZP to 36ZT
2: The FMA
a: direct a registered exchange to suspend trading of either or both of the following:
i: the securities, or a class of securities, of 1 or more public issuers:
ii: 1 or more futures contracts, or a class of futures contracts, traded on a registered market
b: give the registered exchange any other direction in relation to that trading.
3: For the avoidance of doubt, the FMA market rules market rules
4: The direction is subject to appeal only in accordance with section 47A Section 36ZO inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZO heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZO(1) amended 1 May 2011 section 25(1) Securities Markets Amendment Act 2011 Section 36ZO(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZO(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZO(2)(a) substituted 24 November 2009 section 15 Securities Markets Amendment Act 2009 Section 36ZO(2)(a)(ii) amended 1 May 2011 section 25(2) Securities Markets Amendment Act 2011 Section 36ZO(3) amended 1 May 2011 section 25(3) Securities Markets Amendment Act 2011 Section 36ZO(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZO(4) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011
36ZP: Grounds for continuous disclosure direction
1: A direction on the grounds in this section is a continuous disclosure direction
2: A direction may be given under section 36ZO sections 36ZR to 36ZT FMA
a: has regard to the purpose of subpart 1 section 19A
b: is satisfied that one of the following grounds applies:
i: a public issuer has contravened a continuous disclosure obligation or a term or condition of a continuous disclosure exemption; or
ii: a determination by a registered exchange to which section 36ZM subpart 1
iii: the registered exchange's administration of the continuous disclosure provisions of its listing rules does not achieve the purpose of subpart 1 section 19C
iv: if section 19C subpart 1
v: if section 19C subpart 1
c: is also satisfied that the direction is necessary or desirable in the public interest to protect people trading the securities or the class of securities and that there is no more appropriate course of action to address the situation. Section 36ZP inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZP(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZQ: Grounds for other directions
A direction may also be given under section 36ZO sections 36ZR to 36ZT FMA
a: the direction is necessary in the public interest to protect people trading in either or both of the following:
i: the securities, or a class of securities, of 1 or more public issuers:
ii: 1 or more futures contracts, or a class of futures contracts, traded on a registered market
b: it is not a matter to which the purpose of subpart 1 Section 36ZQ inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZQ amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZQ(a) substituted 24 November 2009 section 16 Securities Markets Amendment Act 2009 Section 36ZQ(a)(ii) amended 1 May 2011 section 26 Securities Markets Amendment Act 2011
36ZR: Notice, opportunity for exchange to act, and submissions before
FMA
1: A direction may be given under section 36ZO
a: the FMA
i: its opinion that the requirements of section 36ZP 36ZQ
ii: the proposed terms of the direction; and
iii: the reasons for its opinion; and
b: after receiving the FMA's
i: in the case of a proposed direction to suspend the trading of securities or a class of securities, action to prevent that trading; or
ii: in the case of a proposed direction to suspend the trading of futures contracts, or a class of futures contracts, action to prevent that trading; or
iii: in any other case, any other action that, in the FMA's
c: the FMA
d: the FMA
2: A reasonable period FMA Section 36ZR inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZR heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZR(1) substituted 24 November 2009 section 17 Securities Markets Amendment Act 2009 Section 36ZR(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZR(1)(b) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 36ZR(1)(b)(iii) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 36ZR(1)(c) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZR(1)(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZR(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZS: Limited notice and submissions for urgent continuous disclosure directions
If the FMA section 36ZR
a: it may give less than 2 trading days' notice before it gives the direction and the notice and submissions may be oral, not written; but
b: it must include in that notice the reasons for acting urgently and must otherwise comply with that section. Section 36ZS inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZS amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZT: Notice and opportunity to be heard and represented after
FMA If a direction is given under section 36ZO FMA
a: must, as soon as reasonably practicable, give written notice to the registered exchange, and in the case of a direction to suspend the trading of securities or a class of securities, the public issuer or issuers concerned,
i: its opinion that the requirements of section 36ZP section 36ZQ
ii: the terms of the direction; and
iii: the reasons for its opinion; and
b: must, after the direction is given, give each of those persons or the person's representative an opportunity to make written submissions and to be heard on the matter; and
c: may also give notice to any other person of the matters in paragraph (a). Section 36ZT inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZT heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZT amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZT(a) amended 24 November 2009 section 18 Securities Markets Amendment Act 2009 Section 36ZT(b) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011
36ZU: Effect of directions to exchanges
1: A direction under section 36ZO
2: If the registered exchange fails to comply with the direction or the FMA Section 36ZU inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZU(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
36ZV: Provisions as to directions
1: The FMA section 36ZO
2: The FMA section 36ZO Section 36ZV inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZV(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 36ZV(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Contracting out or modification of continuous disclosure process requirements Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZW: Contracting out or modification of continuous disclosure process requirements
1: The FMA sections 36ZM 36ZN 36ZR to 36ZT
2: For that purpose, the registered exchange may agree to waive or modify obligations under those sections that are owed to public issuers that are parties to listing agreements with the exchange. Section 36ZW inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZW(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Offence Heading inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002
36ZX: Offence
1: A registered exchange commits an offence if it intentionally or recklessly—
a: fails to give a notice, provide information, give assistance, or provide access as required under this subpart; or
b: contravenes section 36ZM
c: fails to comply with a direction under section 36YF section 36ZO
2: See section 43B Section 36ZX inserted 1 December 2002 section 20 Securities Markets Amendment Act 2002 Section 36ZX(1) substituted 1 May 2011 section 27 Securities Markets Amendment Act 2011 Section 36ZX(2) substituted 29 February 2008 section 14 Securities Markets Amendment Act 2006
3: Overseas exchanges
Subpart 3 inserted 1 May 2011 section 28 Securities Markets Amendment Act 2011
36ZY: Overseas exchanges
1: The FMA may (on the terms and conditions it thinks fit), by notice in the Gazette
a: 1 or more securities markets; or
b: 1 or more securities markets and 1 or more futures markets; or
c: 1 or more futures markets, if the body corporate already holds a market registration for a securities market.
2: The notice must—
a: identify the market registered and the person that is authorised to hold the market registration under this section; and
b: state the terms and conditions that apply to the person under the authorisation (and may, in those terms (without limitation), add to, modify, or disapply any of the provisions of subparts 1A 2
3: The FMA must not grant the authorisation unless it is satisfied that—
a: the body corporate is authorised to operate the relevant market in another jurisdiction; and
b: the operation of the market by the body corporate will be subject to requirements and supervision under the proposed terms or conditions of the authorisation or the law and regulatory requirements of its home jurisdiction, or both; and
c: those requirements and that supervision are likely to have at least equivalent outcomes, in terms of the degree of integrity and effectiveness of the market and the confidence of investors in the market, to the likely outcomes for that market if the market were registered under section 36F
4: This Act (other than subpart 1B section 36F subsection (2) 1988 No 234 s 36X Section 36ZY inserted 1 May 2011 section 28 Securities Markets Amendment Act 2011
36ZYA: Revocation or amendment of authorisation
1: The FMA may, by notice in the Gazette section 36ZY
2: However, the FMA must not do so unless—
a: it has consulted the body corporate concerned; and
b: it is satisfied that it is in the public interest to do so. Section 36ZYA inserted 1 May 2011 section 28 Securities Markets Amendment Act 2011
36ZYB: Offence for breach of terms or conditions of authorisation
Every person who acts in contravention of a term or condition of an authorisation granted under section 36ZY see section 43B 1988 No 234 s 36Z Section 36ZYB inserted 1 May 2011 section 28 Securities Markets Amendment Act 2011
3: Dealing in futures contracts
37: Interpretation of terms used in this Part
1: In this Part, unless the context otherwise requires,— acquire acquires acquisition authorised futures contract
a: made on, or effected through, an authorised futures market
b: made on, or effected through, a futures exchange in a country other than New Zealand which is authorised by the laws of that country to operate as a futures exchange, by a person referred to in section 38(1)
c: which is a futures contract of a class in which a person referred to in section 38(1) authorised futures exchange
a: a person that is authorised to conduct a futures market under subsection (8):
b: a registered exchange that holds a market registration under Part 2B
c: a subsidiary of a person to which paragraph (a) or (b) authorised futures market Part 2B commodity , a financial instrument, and emissions units dispose of
a: in the case of a futures contract described in paragraph (d) of the definition of that term, assign and exercise:
b: in the case of any other futures contract, discharge obligations under;— and disposes disposition emissions units
a: units as defined in section 4(1)
b: personal property that—
i: is created by, or in accordance with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol as—
A: one of a fixed number of units issued by reference to a specified amount of greenhouse gas; or
B: evidence of a specified amount of reductions, removals, avoidance, storage, sequestration, or any other form of mitigation of greenhouse gas emissions; and
ii: can be surrendered, retired, cancelled, or otherwise used to—
A: offset greenhouse gas emissions under, or otherwise comply with, any enactment (whether of New Zealand, another country, or any jurisdiction of any country), rule of law, contractual provision, or international treaty or protocol; or
B: enable a person who surrenders, retires, cancels, or otherwise uses it to claim an environmental benefit futures contract
a: an agreement under which one party agrees to deliver to another party at a specified future time a specified commodity or a quantity of a specified commodity at a price which is fixed when the agreement is made but under which it is contemplated or understood that the obligations of the parties may be satisfied by means other than actual delivery:
b: an agreement under which each party has either—
i: an obligation to pay a sum of money to the other or to credit the account of the other with payment of a sum of money; or
ii: a right to receive payment, or a credit, of a sum of money from the other— depending on whether at a future date the value or price of a specified commodity calculated in a manner specified by, or in accordance with, the agreement is greater or less than the value or price agreed upon by the parties when the agreement was made:
c: an agreement under which each party has either—
i: an obligation to pay a sum of money to the other or to credit the account of the other with payment of a sum of money; or
ii: a right to receive payment, or a credit, of a sum of money from the other— depending on whether at a future date the value or level of a specified index calculated in a manner specified by, or in accordance with, the agreement is greater or less than the value or level agreed upon by the parties when the agreement was made:
d: an option or right to assume, at a specified price or value, or within a specified period, or by a specified date, rights and obligations under an agreement of a kind described in a preceding paragraph:
e: an agreement, option or right which is declared by the FMA Act or any
f: an agreement, option or right which is of a class of agreements, options or rights declared by the FMA Act or any greenhouse gas section 31 registered bank section 2 1989
2: For the purposes of
a: a currency swap agreement to which
b: an interest rate swap agreement to which
c: a forward exchange rate contract to which
d: a forward interest rate contract to which
3: An agreement or option of the kind described in paragraphs (a), (b), (c), (d), (e), or (f) of the definition of the term futures contract in subsection (1) is a futures contract whether or not it—
a: has any other effect; or
b: contains any other provisions; or
c: is capable of being varied or discharged before the time fixed for performance.
4: For the purposes of the definition of the term futures contract in subsection (1), party
a: an assignee:
b: a nominee:
c: a successor in title:
d: if the party to the agreement is an agent, the principal.
5: For the purposes of this Part, a person deals in a futures contract if that person—
a: acquires or disposes of the futures contract on behalf of another person; or
b: offers to acquire or dispose of the futures contract on behalf of another person; or
c: on behalf of another person induces, or attempts to induce, a person, to acquire or dispose of the futures contract; or
d: advises or assists a person in connection with the acquisition or disposition of the futures contract; or
e: does any other act or engages in conduct declared by the FMA Gazette
6: For the purposes of subsection (5)(d) a person shall not be regarded as giving advice or assistance to any person in connection with the acquisition or disposition of a futures contract by reason only that that person gives that advice or assistance in a professional capacity as a solicitor or a chartered accountant.
7: The FMA Gazette
a: an agreement, option, or right to be an agreement, option, or right to which
b: a class of agreements, options, or rights to be a class of agreements, options, or rights to which
8: The FMA , on the terms and conditions (if any) that it thinks fit Gazette to be authorised to conduct 1 or more futures markets in New Zealand
8AA: A notice of an authorisation declaration under subsection (8) must—
a: identify the market to which the authorisation applies and the person that is authorised to conduct that market under this section; and
b: state the terms and conditions that apply to the person under the authorisation (and may, in those terms (without limitation), add to, modify, or disapply any of the provisions of subparts 1A 2
8AB: The FMA must not grant the authorisation declaration under subsection (8) unless it is satisfied that—
a: the operation of the futures market by the body corporate will be subject to requirements and supervision under the proposed terms and conditions of the authorisation or the law and regulatory requirements of another jurisdiction (if the body corporate is authorised to conduct the market in another jurisdiction), or both; and
b: those requirements and that supervision are likely to have at least equivalent outcomes, in terms of the degree of integrity and effectiveness of the market and the confidence of investors in the market, to the likely outcomes for that market if it were registered under section 36F
8A: A notice under subsection (8) may include any authorisation given under section 38
9: The FMA Gazette
10: The FMA Gazette
11: Declarations to which subsection (7)(b) applies (but no other declarations made under this section) are legislative instruments for the purposes of the Legislation Act 2012 section 41 Section 37(1) authorised dealer in foreign exchange repealed 3 June 1998 section 2(1)(a) Securities Amendment Act 1998 Section 37(1) authorised futures contract amended 1 May 2011 section 29(1) Securities Markets Amendment Act 2011 Section 37(1) authorised futures contract amended 3 June 1998 section 2(1)(b) Securities Amendment Act 1998 Section 37(1) authorised futures contract amended 3 June 1998 section 2(1)(c) Securities Amendment Act 1998 Section 37(1) authorised futures exchange substituted 1 May 2011 section 29(2) Securities Markets Amendment Act 2011 Section 37(1) authorised futures market inserted 1 May 2011 section 29(2) Securities Markets Amendment Act 2011 Section 37(1) commodity amended 24 November 2009 section 19(3) Securities Markets Amendment Act 2009 Section 37(1) emissions units inserted 24 November 2009 section 19(6) Securities Markets Amendment Act 2009 Section 37(1) futures contract amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(1) futures contract amended 24 November 2009 section 19(4) Securities Markets Amendment Act 2009 Section 37(1) futures contract amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(1) futures contract amended 24 November 2009 section 19(5) Securities Markets Amendment Act 2009 Section 37(1) greenhouse gas inserted 24 November 2009 section 19(6) Securities Markets Amendment Act 2009 Section 37(1) registered bank amended 3 June 1998 section 2(1)(d) Securities Amendment Act 1998 Section 37(2) amended 24 November 2009 section 19(7) Securities Markets Amendment Act 2009 Section 37(2)(a) amended 3 June 1998 section 2(2) Securities Amendment Act 1998 Section 37(2)(b) amended 3 June 1998 section 2(2) Securities Amendment Act 1998 Section 37(2)(c) amended 3 June 1998 section 2(2) Securities Amendment Act 1998 Section 37(2)(d) amended 3 June 1998 section 2(2) Securities Amendment Act 1998 Section 37(5)(e) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(7) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(7)(a) amended 24 November 2009 section 19(8) Securities Markets Amendment Act 2009 Section 37(7)(b) amended 24 November 2009 section 19(8) Securities Markets Amendment Act 2009 Section 37(8) amended 1 May 2011 section 29(3) Securities Markets Amendment Act 2011 Section 37(8) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(8) amended 1 December 2002 section 21(2) Securities Markets Amendment Act 2002 Section 37(8AA) inserted 1 May 2011 section 29(4) Securities Markets Amendment Act 2011 Section 37(8AB) inserted 1 May 2011 section 29(4) Securities Markets Amendment Act 2011 Section 37(8A) inserted 1 December 2002 section 21(3) Securities Markets Amendment Act 2002 Section 37(9) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(10) added 3 June 1998 section 2(3) Securities Amendment Act 1998 Section 37(10) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 37(11) inserted 5 August 2013 section 77(3) Legislation Act 2012
37A: No holding out as futures exchange unless authorised under this Part
1: No person may, in connection with carrying on business in New Zealand,—
a: use a style or title including the words futures exchange futures market
b: state or imply, or permit a statement or implication, that—
i: the person is an authorised futures exchange; or
ii: a market
2: Subsection (1)(a) and (b)(i) do not apply to—
a: an authorised futures exchange; or
b: a subsidiary of an authorised futures exchange.
2A: Subsection (1)(b)(ii) does not apply to—
a: an authorised futures exchange in respect of its authorised futures market; or
b: a subsidiary of an authorised futures exchange in respect of the exchange's authorised futures market.
3: Every person who acts in contravention of subsection (1) commits an offence ( see section 43C Section 37A inserted 1 December 2002 section 22 Securities Markets Amendment Act 2002 Section 37A(1)(b)(ii) amended 1 May 2011 section 30(1) Securities Markets Amendment Act 2011 Section 37A(2) substituted 1 May 2011 section 30(2) Securities Markets Amendment Act 2011 Section 37A(2A) inserted 1 May 2011 section 30(2) Securities Markets Amendment Act 2011 Section 37A(3) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
37B: No operation of futures markets unless authorised under this Part (if restriction applies)
1: No person to whom this section applies may conduct a market or exchange in New Zealand for trading in futures contracts unless that person is—
a: an authorised futures exchange; or
b: a subsidiary of an authorised futures exchange.
2: Every person who acts in contravention of subsection (1) commits an offence ( see section 43C Section 37B inserted 1 December 2002 section 22 Securities Markets Amendment Act 2002 Section 37B(2) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
37C: Power to apply and remove restriction on operating futures markets
1: The Minister may, by notice in the Gazette
a: declare, in accordance with section 37D section 37B
b: declare that section 37B
c: exempt a market
2: An exemption under subclause (1)(c) may be on any terms or conditions that the Minister thinks fit.
3: An exemption has effect according to its tenor.
4: In determining whether or not to grant an exemption, the Minister must seek the advice of the FMA
5: The Minister may vary an exemption in the same way as the exemption may be granted under this section.
6: The Minister may, by notice in the Gazette Section 37C inserted 1 December 2002 section 22 Securities Markets Amendment Act 2002 Section 37C(1)(c) amended 1 May 2011 section 31(1) Securities Markets Amendment Act 2011 Section 37C(1)(c) amended 1 May 2011 section 31(2) Securities Markets Amendment Act 2011 Section 37C(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
37D: Criteria and process for applying restriction on operating futures markets
1: The Minister may declare that section 37B
a: the integrity or effectiveness of futures markets in New Zealand; or
b: the confidence of investors in futures markets in New Zealand.
2: The Minister must, before making the declaration,—
a: give at least 2 months' written notice of the proposed declaration, and of the Minister's reasons for his or her opinion under subsection (1), to—
i: the person to whom it is proposed to apply section 37B
ii: the FMA
iii: any other persons that the Minister thinks are representative of the interests of persons likely to be substantially affected by the proposed declaration; and
b: have regard to any submissions made by those persons within the notice period given; and
c: before making the declaration, give at least 14 days' written notice to the persons referred to in paragraph (a), and in the Gazette
3: A failure to comply with subsection (2) does not invalidate any notice published under section 37C Section 37D inserted 1 December 2002 section 22 Securities Markets Amendment Act 2002 Section 37D(2)(a)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
37E: No operation by authorised futures exchange of unauthorised futures market
1: No authorised futures exchange may operate in New Zealand a futures market for which it does not have an authorisation under this Part or a market registration under Part 2B
2: Every person who acts in contravention of subsection (1) commits an offence ( see section 43C Section 37E inserted 1 May 2011 section 32 Securities Markets Amendment Act 2011
38: Dealers in futures contracts to be authorised
1: No person may carry on the business of dealing in futures contracts unless that person—
a: is, or is a member of a class of persons that is, authorised by the FMA Gazette
b: has been approved by an authorised futures exchange under its rules to carry on the business of dealing in futures contracts in accordance with the rules of that exchange.
1A: However, a person who receives approval under subsection (1)(b) may carry on the business of dealing in futures contracts only if that dealing is subject to the regulation and oversight of the authorised futures exchange that approved the person.
2: For the purposes of subsection (1)(a)
a: specified futures contracts:
b: a specified class or specified classes of futures contracts:
c: futures contracts generally:
d: futures contracts generally other than—
i: specified futures contracts:
ii: a specified class or specified classes of futures contracts— and may be on such terms and conditions as the FMA
3: The FMA Gazette subsection (1)(a)
4: For the purposes of subsection (1)(b), rules that is a registered exchange (or subsidiary of a registered exchange), means market rules Section 38(1) substituted 24 November 2009 section 20(1) Securities Markets Amendment Act 2009 Section 38(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38(1A) inserted 24 November 2009 section 20(1) Securities Markets Amendment Act 2009 Section 38(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38(2) amended 24 November 2009 section 20(2) Securities Markets Amendment Act 2009 Section 38(2) amended 2 September 1996 Sharebrokers Amendment Act 1996 Section 38(3) added 3 June 1998 section 2(4) Securities Amendment Act 1998 Section 38(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 38(3) amended 24 November 2009 section 20(3) Securities Markets Amendment Act 2009 Section 38(4) added 24 November 2009 section 20(4) Securities Markets Amendment Act 2009 Section 38(4) amended 1 May 2011 section 33 Securities Markets Amendment Act 2011
39: Contravention of section 38 an offence
Every person who contravenes section 38 see section 43C Section 39 substituted 29 February 2008 section 14 Securities Markets Amendment Act 2006
40: Effect of certain laws on authorised futures contracts and other contracts
1: Nothing in the Gambling Act 2003
a: an authorised futures contract; or
b: an agreement or a contract of the kind described in section 37(2)
2: Without limiting subsection (1), a contract referred to in that subsection is not a gaming or wagering contract for the purposes of any enactment or rule of law.
3: A contravention of this Part does not affect the validity or enforceability of a contract referred to in subsection (1). Section 40 substituted 28 July 1997 section 10(2) Securities Amendment Act (No 2) 1997 Section 40(1) amended 1 July 2004 section 374 Gambling Act 2003
4: Investment advisers and brokers
Part 4 repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Application of this Part Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41: When investment advice given to public, etc
Section 41 repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Disclosure by investment advisers Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41A: Investment advisers' disclosure obligation
Section 41A repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41B: Investment adviser must disclose experience, qualifications, professional standing, etc
Section 41B repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41C: Investment adviser must disclose certain criminal convictions, etc
Section 41C repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41D: Investment adviser must disclose fees
Section 41D repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41E: Investment adviser must disclose other interests and relationships
Section 41E repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41F: Investment adviser must disclose details of securities about which advice given
Section 41F repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Disclosure by investment brokers Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41G: Investment brokers' disclosure obligation
Section 41G repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41H: Investment broker must disclose certain criminal convictions, etc
Section 41H repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41I: Investment broker must disclose procedures for dealing with investment money or investment property
Section 41I repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Method of disclosure Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41J: How disclosure must be made
Section 41J repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Other requirements relating to disclosure Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41K: Disclosure must not be misleading
Section 41K repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41L: Disclosure of additional information
Section 41L repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41M: No compliance with disclosure obligations if disclosure statement out of date
Section 41M repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41N: Advertisement must refer to disclosure statement
Section 41N repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41O: Advertisement must not be deceptive, misleading, or confusing
Section 41O repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Offences Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41P: Offence for failure to comply with disclosure obligation
Section 41P repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41Q: Offence of deceptive, misleading, or confusing disclosure
Section 41Q repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41R: Offence of deceptive, misleading, or confusing advertisement
Section 41R repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41S: Recommending, or receiving money for, acquisition of securities prohibited if offer for subscription illegal
Section 41S repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41T: Defence of immateriality
Section 41T repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Territorial scope of this Part Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41U: Territorial scope
Section 41U repealed 1 July 2011 section 164(4) Financial Advisers Act 2008 Miscellaneous Heading repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41V: No contracting out
Section 41V repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
41W: No liability under Fair Trading Act 1986 if not liable under this Part
Section 41W repealed 1 July 2011 section 164(4) Financial Advisers Act 2008
5: Enforcement and remedies
Part 5 heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
1: FMA's Subpart 1 heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Subpart 1 heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Prohibition and corrective orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42: When
FMA The FMA
a: a market manipulation prohibition or exemption or the general dealing misconduct prohibition:
b: an investment advisers' or brokers' obligation or exemption:
c: section 36A(1)
d: section 37A(1) Section 42 substituted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42A: Terms of prohibition and corrective orders
1: A prohibition order may prohibit or restrict the making of any statement or distributing of any document by or on behalf of the person for the purpose of preventing a contravention or further contravention of the relevant prohibition, obligation, or exemption.
2: A corrective order may direct the person in contravention to publish, at the person's own expense, in the manner and at the times specified in the order, corrective statements that are specified in, or are to be determined in accordance with, the order. Section 42A inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Disclosure orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42B: When
FMA The FMA
a: a continuous disclosure obligation or exemption:
b: a directors' and officers' disclosure obligation or exemption:
c: a substantial holding disclosure obligation or exemption:
d: Section 42B inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42B heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42B amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42B(d) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
42C: Terms of disclosure orders
A disclosure order may order the person—
a: to disclose in accordance with the order information for the purpose of securing compliance with the relevant obligation or exemption:
b: to publish, at the person's own expense, in the manner and at the times specified in the order, corrective statements that are specified in, or are to be determined in accordance with, the order. Section 42C inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Temporary investment adviser and broker banning orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42D: When
FMA Section 42D repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
42E: Terms of temporary banning order for investment adviser and broker activities
Section 42E repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Unsolicited offer orders Heading inserted 1 May 2011 section 34 Securities Markets Amendment Act 2011
42EA: When FMA may make unsolicited offer orders
The FMA may make an unsolicited offer order in accordance with this subpart if the FMA is satisfied that a person has acted, is acting, or intends to act in contravention of an unsolicited offer obligation or exemption. Section 42EA inserted 1 May 2011 section 34 Securities Markets Amendment Act 2011
42EB: Terms of unsolicited offer orders
1: An unsolicited offer order may—
a: restrain a person from acquiring a security, a power to dispose of a security, or an interest in or right attaching to a security, as a result of the unsolicited offer:
b: restrain a person from taking any action that is, or that may reasonably be expected to constitute, a contravention of an unsolicited offer obligation or exemption:
c: restrain a person from taking specified steps to complete or perform a contract that has been, or may reasonably be expected to be, entered into in contravention of an unsolicited offer obligation or exemption:
d: direct a person not to register the transfer of a security:
e: direct a person to disclose information, make corrective statements, or take any other specified steps, at the person's own expense and in the manner and at the times specified in the order, for the purpose of securing compliance with an unsolicited offer obligation or exemption.
2: An unsolicited offer order may be directed at any person. Section 42EB inserted 1 May 2011 section 34 Securities Markets Amendment Act 2011 Process for FMA's Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
42F: FMA
1: The FMA
a: gives the person to whom the order is directed written notice of—
i: the nature of the alleged contravention; and
ii: the proposed terms of the order; and
iii: the reasons for the proposed order; and
b: also gives that written notice to the relevant registered exchange, in the case of a disclosure order for a contravention of a continuous disclosure obligation or exemption; and
c: gives that notice at least—
i: 24 hours before the FMA section 42G
ii: 48 hours before the FMA or an unsolicited offer order
iii: 7 days before the FMA
d: gives each person to whom notice of the order must be given or the person's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
e:
f:
2: However, the FMA section 42G Section 42F inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42F heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42F(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42F(1)(c)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42F(1)(c)(ii) amended 1 May 2011 section 35 Securities Markets Amendment Act 2011 Section 42F(1)(c)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42F(1)(c)(iii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42F(1)(d) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 42F(1)(e) repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 42F(1)(f) repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 42F(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42G: FMA
1: If the FMA section 42F
a: may give less than 24 hours' notice before it makes the order, and the notice may be oral, not written; and
b: may give persons an opportunity to make only oral submissions, not written, to a member, officer, or employee of the FMA FMA
2: However, the FMA
3: The orders are—
a: a prohibition or corrective order for a contravention of a market manipulation prohibition or exemption or the general dealing misconduct prohibition:
b:
c: a disclosure order for a contravention of a continuous disclosure obligation or exemption:
d: a temporary banning order:
e: an unsolicited offer order. Section 42G inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42G heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42G(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42G(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42G(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42G(3)(b) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 42G(3)(e) added 1 May 2011 section 36 Securities Markets Amendment Act 2011
42H: FMA
1: If the FMA FMA
a: must, as soon as is reasonably practicable, give written notice to the person to whom the order is directed of—
i: the terms of the order; and
ii: the reasons for the order; and
b: must also give that written notice to the relevant registered exchange, in the case of a disclosure order for a contravention of a continuous disclosure obligation or exemption; and
c: may also give notice to any other person of those matters.
2: The FMA Section 42H inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42H heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42H(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42H(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 General provisions Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42I: General provisions on
FMA's
1: The FMA FMA
2: The FMA
3: The FMA
4: An order made under this subpart is subject to appeal only in accordance with section 47A Section 42I inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42I heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 42I(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42I(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42I(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42I(4) substituted 1 May 2011 section 82 Financial Markets Authority Act 2011
42J: Offence of failing to comply with
FMA's
1: A person who contravenes an order made by the FMA see section 43E
2: No person may be convicted of an offence against subsection (1)
a: the person proves that the contravention occurred without the person's knowledge or without the person's knowledge of the order; or
b: the contravention was in respect of matters that, in the court's opinion, were immaterial; or
c: the court thinks that the contravention, in the circumstances of the case, ought reasonably to be excused. Section 42J inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42J heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 42J(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
2: Court's enforcement powers
Subpart 2 inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Injunctions Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42K: What court may injunct
The court may, on application by the FMA Section 42K inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42K amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42L: When court may grant injunctions and interim injunctions
1: The court may grant an injunction restraining a person from engaging in conduct of a particular kind if—
a: it is satisfied that the person has engaged in conduct of that kind; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
2: The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.
3: Subsections (1)(a) and (2) apply whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
4: Subsections (1)(b) and (2) apply whether or not the person has previously engaged in conduct of that kind or there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind. Section 42L inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42M: Undertaking as to damages not required by
FMA
1: If the FMA FMA
2: However, in determining the FMA's FMA Section 42M inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42M heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42M(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42M(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42M(2) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Corrective orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42N: When court may grant corrective orders
The court may, on application by the FMA
a: a market manipulation prohibition or exemption or the general dealing misconduct prohibition:
b:
c: section 36A(1)
d: section 37A(1)
e: an unsolicited offer obligation or exemption. Section 42N inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42N amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42N(b) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 42N(e) added 1 May 2011 section 37 Securities Markets Amendment Act 2011
42O: Terms of corrective orders
A corrective order may direct the person in contravention to publish, at the person's own expense, in the manner and at the times specified in the order, corrective statements that are specified in, or are to be determined in accordance with, the order. Section 42O inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Disclosure orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42P: When court may make disclosure orders
The court may, on application by the FMA
a: a continuous disclosure obligation or exemption:
b: a substantial holding disclosure obligation or exemption:
c:
d: an unsolicited offer obligation or exemption. Section 42P inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42P amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42P(c) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 42P(d) added 1 May 2011 section 38 Securities Markets Amendment Act 2011
42Q: Terms of disclosure orders
A disclosure order may order—
a: the person in contravention to disclose in accordance with the order information for the purpose of securing compliance with the relevant obligation or exemption:
b: the person in contravention to publish, at the person's own expense, in the manner and at the times specified in the order, corrective statements that are specified in, or are to be determined in accordance with, the order. Section 42Q inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
3: Civil remedies
Subpart 3 inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Overview of civil remedies Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42R: Overview of civil remedies
1: The following remedies ( civil remedy orders
a: a pecuniary penalty order and declaration of contravention (on application by the FMA
b: a compensatory order:
c: a specific civil remedy order under section 42ZC
d: other civil remedy orders under section 42ZE
2: This section is a guide only to the general scheme and effect of this subpart. Section 42R inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42R(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42S: What are civil remedy provisions
In this subpart, a civil remedy provision
a: an insider conduct prohibition or exemption:
b: a market manipulation prohibition or exemption:
c: the general dealing misconduct prohibition:
d: a continuous disclosure obligation or exemption:
e: a substantial holding disclosure obligation or exemption:
f:
g: an unsolicited offer obligation or exemption. Section 42S inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42S(f) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 42S(g) added 1 May 2011 section 39 Securities Markets Amendment Act 2011 Pecuniary penalty orders and declarations of contravention Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42T: When court may make pecuniary penalty orders and declarations of contravention
1: If the FMA
a: must determine whether the person has contravened a civil remedy provision; and
b: must make a declaration of contravention ( see sections 42U 42V
c: may order the person to pay a pecuniary penalty that the court considers appropriate to the Crown ( see sections 42W to 42Y
i: materially prejudices the interests of acquirers or disposers of the securities or relevant interests involved; or
ii: materially prejudices the public issuer or, if the public issuer is a body corporate, its members; or
iii: is likely to materially damage the integrity or reputation of any of New Zealand's securities markets; or
iv: is otherwise serious.
2: However, the court must not make a declaration of contravention or a pecuniary penalty order under this section for a contravention of—
a: section 13
b: Section 42T inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42T(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42T(2)(b) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
42U: Purpose and effect of declarations of contravention
1: The purpose of a declaration of contravention is to enable an applicant for a compensatory order or other civil remedy order under section 42ZE
2: Accordingly, a declaration of contravention is conclusive evidence of the matters that must be stated in it under section 42V Section 42U inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42V: What declarations of contravention must state
A declaration of contravention must state the following:
a: the court that made the declaration; and
b: the civil remedy provision to which the contravention relates or, if the contravention is of an exemption, both the term or condition contravened and the civil remedy provision to which the exemption relates; and
c: the person who engaged in the contravention; and
d: the conduct that constituted the contravention and, if a transaction constituted the contravention, the transaction; and
e: the public issuer to which the conduct related (if relevant). Section 42V inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42W: Maximum amount of pecuniary penalty
1: The maximum amount of a pecuniary penalty for a contravention of an insider conduct prohibition , market manipulation prohibition, or unsolicited offer prohibition
a: the consideration for the transaction that constituted the contravention (if any); or
b: 3 times the amount of the gain made, or the loss avoided, by the person in carrying out the conduct ( see section 42X
c: $1,000,000.
2: The maximum amount of a pecuniary penalty for a contravention of any other civil remedy provision is $1,000,000. Section 42W inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42W(1) amended 1 May 2011 section 40 Securities Markets Amendment Act 2011
42X: Guidance for court on how to determine gains made or losses avoided for purposes of maximum amount
1: For the purposes of section 42W(1)(b)
a: a person makes a gain if the person acquires a security
b: a person avoids a loss if the person disposes of a security
2: In this case, the gain made or loss avoided is the difference between the consideration paid or received (as the case may be) and the value the security would have had at the time of the sale if, —
a: in the case of a contravention of an insider conduct prohibition, the material information had been generally available to the market; or
b: in the case of a contravention of a market manipulation prohibition, the conduct, statement, or information had not been misleading, deceptive, or false.
3: In the case of a contravention of an unsolicited offer prohibition, subsection (2) does not apply. Section 42X inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42X(1)(a) amended 1 May 2011 section 41(1) Securities Markets Amendment Act 2011 Section 42X(1)(b) amended 1 May 2011 section 41(1) Securities Markets Amendment Act 2011 Section 42X(3) added 1 May 2011 section 41(2) Securities Markets Amendment Act 2011
42Y: Considerations for court in determining pecuniary penalty
In determining an appropriate pecuniary penalty, the court must have regard to all relevant matters, including—
a: any purpose and criteria stated in this Act that apply to the civil remedy provision; and
b: the nature and extent of the contravention; and
c: the likelihood, nature, and extent of any damage to the integrity or reputation of any of New Zealand's securities markets because of the contravention; and
d: the nature and extent of any loss or damage suffered by a person referred to in section 42T(1)(c)(i) or (ii)
e: the circumstances in which the contravention took place; and
f: whether or not the person in contravention has previously been found by the court in proceedings under this Act to have engaged in any similar conduct; and
g: the relationship of the parties to the transaction constituting the contravention. Section 42Y inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42Z: Court must order that recovery from pecuniary penalty be applied to
FMA's If the court orders that a person pay a pecuniary penalty, and the proceedings were brought (in whole or in part) by the FMA FMA's Section 42Z inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42Z heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 42Z amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 42Z amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Compensatory orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZA: When court may make compensatory orders
1: The court may make a compensatory order, on application by the FMA
a: there is a contravention of a civil remedy provision; and
b: a person (the aggrieved person
2: The court may make a compensatory order whether or not the aggrieved person is a party to the proceedings.
3: However, the court must not make a compensatory order under this section for a contravention of an investment advisers' and brokers' disclosure obligation or exemption. Section 42ZA inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42ZA(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42ZB: Terms of compensatory orders
If section 42ZA
a: direct the person in contravention to pay to the aggrieved person the amount of the loss or damage:
b: direct the person in contravention to refund money or return property to the aggrieved person:
c: if a contract has been entered into between the person in contravention and the aggrieved person,—
i: vary the contract or any collateral arrangement as specified in the order and, if the court thinks fit, declare the contract or arrangement to have had effect as so varied on and after a date before the order was made, as specified in the order:
ii: cancel the contract and, if the court thinks fit, declare the cancellation to have had effect on and after a date before the order was made, as specified in the order:
iii: require the person in contravention to take any action the court thinks fit to reinstate the parties as near as may be possible to their former positions. Section 42ZB inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Civil remedy order for investment advisers' or brokers' disclosure obligations Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZC: When court may make civil remedy order for investment advisers' or brokers' disclosure obligations
Section 42ZC repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
42ZD: Terms of civil remedy order for investment advisers' or brokers' disclosure obligations
Section 42ZD repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Other civil remedy orders Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZE: When court may make other civil remedy orders
1: The court may, on application by the FMA section 42ZF
2: However, the court must not make a civil remedy order of that kind for a contravention of a continuous disclosure obligation or exemption or an investment advisers' or brokers' obligation or exemption. Section 42ZE inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 42ZE(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
42ZF: Terms of other civil remedy orders
A civil remedy order under section 42ZE
a: restrain the exercise of rights attaching to securities, or the exercise of relevant interests, or declare an exercise of those rights or relevant interests to be void and of no effect:
b: restrain the issue or allotment of securities or restrain any distribution due in relation to securities:
c: restrain the acquisition or disposal of securities or of relevant interests or restrain the registration of any transfer of that kind:
d: direct the disposal of securities or of relevant interests (including the person or class of person to which they must, or must not, be disposed of) and direct the payment of the proceeds of any disposal:
e: require securities to be forfeited and require the public issuer to cancel the forfeited securities:
f: cancel an agreement for the acquisition or disposal of securities or relevant interests. Section 42ZF inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Interrelationship of civil remedies Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZG: More than 1 civil remedy order may be made for same conduct
The court may make a civil remedy order of one kind against a person even though the court has made another civil remedy order of a different kind against the person for the same conduct. Examples
The court may make a compensatory order and a pecuniary penalty order for the same conduct. The court may make a civil remedy order requiring forfeiture of securities and declaring a previous exercise of voting rights attaching to those securities to be void. Section 42ZG inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZH: Only 1 pecuniary penalty order may be made for same conduct
If conduct by a person constitutes a contravention of 2 or more civil remedy provisions, proceedings may be brought against that person for the contravention of any 1 or more of the provisions, but no person is liable to more than 1 pecuniary penalty order for the same conduct. Section 42ZH inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 General Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZI: Standard of proof for civil remedies
The proceedings under this subpart are civil proceedings and the usual rules of the court and rules of evidence and procedure for civil proceedings apply (including the standard of proof). Section 42ZI inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
42ZJ: Time limit for applying for civil remedies
1: An application for a pecuniary penalty order, a civil remedy order under section 42ZC section 42ZE
2: The usual time limits apply to all applications for other civil remedy orders.
3: However, an application for a compensatory order in respect of the contravention may be made at any time within 6 months after the date on which a declaration of contravention is made, even if the usual time limit has expired. Section 42ZJ inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
4: Criminal offences and penalties
Subpart 4 heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Penalties for offences Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43: Penalties for failing to comply with Part 1
1: A person who commits an offence against any of the sections set out in subsection (2) is liable on conviction
a: in the case of an individual, imprisonment for a term not exceeding 5 years or a fine not exceeding $300,000, or to both:
b: in the case of a body corporate, a fine not exceeding $1,000,000.
2: The sections are—
a: section 8F
b: section 11A
c: section 11D Section 43 substituted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
43A: Penalties for failing to comply with Part 2
1: A person who commits an offence against any of the following sections is liable on
a: section 19ZD
b: section 35BA
2: A person who commits an offence against any of the following sections is liable on
a: section 19ZF
b: section 32
c: section 35E
d: section 35H Section 43A inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43A(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43A(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
43B: Penalties for failing to comply with Part 2B
1: A person who commits an offence against section 36ZX registered
2: A person who commits an offence against any of the following sections is liable on
a: section 36A(1)
b: section 36B(1)
c: section 36FB(1)
d: section 36G(1) subpart 1A
e: section 36ZYB
3: A person who commits an offence against section 36N
4: A person who commits an offence against section 36U(1)(a) Section 43B inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43B(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43B(1) amended 24 November 2009 section 21(1) Securities Markets Amendment Act 2009 Section 43B(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43B(2)(c) substituted 1 May 2011 section 42(1) Securities Markets Amendment Act 2011 Section 43B(2)(d) substituted 1 May 2011 section 42(1) Securities Markets Amendment Act 2011 Section 43B(2)(e) amended 1 May 2011 section 42(2) Securities Markets Amendment Act 2011 Section 43B(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43B(3) amended 1 May 2011 section 42(3) Securities Markets Amendment Act 2011 Section 43B(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
43C: Penalties for failing to comply with Part 3
1: A person who commits an offence under section 39 section 38
a: in the case of an individual, to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or to both:
b: in the case of a body corporate, to a fine not exceeding $300,000.
2: A person who commits an offence against any of the following sections is liable on
a: section 37A(1)
b: section 37B(1)
c: section 37E(1) Section 43C inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43C(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43C(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43C(2)(c) added 1 May 2011 section 43 Securities Markets Amendment Act 2011
43D: Penalties for failing to comply with Part 4
Section 43D repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
43E: Penalties for failing to comply with this Part
1: An individual who commits an offence against either of the following sections is liable on conviction
a:
b: section 43I
2: A person who commits an offence against any of the sections set out in subsection (3) is liable on conviction
a: in the case of an individual, to imprisonment for a term not exceeding 3 years or to a fine not exceeding $100,000, or to both:
b: in the case of a body corporate, to a fine not exceeding $300,000.
3: The sections are—
a:
b:
c: section 43T
4: A person who commits an offence against section 42J FMA's Section 43E inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43E(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43E(1)(a) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 43E(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43E(3)(a) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 43E(3)(b) repealed 1 July 2011 section 164(5) Financial Advisers Act 2008 Section 43E(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 43E(4) amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
5: Other court orders
Subpart 5 inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Management bans Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43F: When court may make management banning orders
1: The court may, on application by an entitled person, make a management banning order against a person ( A
a: A has been convicted of an offence against Part 1
b: A has, while a director of an incorporated or unincorporated body,—
i: persistently contravened this Act, the Companies Act 1993 Securities Act 1978 the Securities Trustees and Statutory Supervisors Act 2011, Takeovers Act 1993 takeovers code
ii: if the incorporated or unincorporated body has so contravened, persistently failed to take all reasonable steps to obtain compliance with those Acts or the code; or
c: A has been prohibited in an overseas jurisdiction from carrying on activities that the court is satisfied are substantially similar to any of the activities referred to in section 43G
2: An entitled person
a: the FMA
b: the Registrar of Companies:
c: an incorporated or unincorporated body that—
i: A is a director of at the time of the application; or
ii: A was a director of at the time of the ground that triggers the making of the order under subsection (1):
d: the liquidator of an incorporated or unincorporated body referred to in paragraph (c):
e: a person who is, or has been, a holder of securities (and, for this purpose, security Securities Act 1978 Section 43F inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43F(1)(b)(i) amended 1 October 2011 section 74(2) Securities Trustees and Statutory Supervisors Act 2011 Section 43F(2)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
43G: Terms of management banning orders
A management banning order may, for a period stated in the order of 10 years or less, prohibit or restrict the person (without the leave of the court) from being a director or promoter of, or in any way (whether directly or indirectly) being concerned or taking part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand). Section 43G inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43H: Offence of contravening management banning order
An individual who acts in contravention of a management banning order under section 43F see section 43E Section 43H inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43I: Persons automatically banned from management
1: This section applies to a person if the person has been convicted of an offence against Part 1
2: The person must not, for the period of 5 years after the conviction or making of the order (without the leave of the court) be a director or promoter of, or in any way (whether directly or indirectly) be concerned or take part in the management of, an incorporated or unincorporated body (other than an overseas company, or an incorporated or unincorporated body, that does not carry on business in New Zealand).
2A: The court may give leave for the purposes of subsection (2)—
a: at the time of conviction or making of the order, or at any other time on the application of the relevant person:
b: in respect of a particular incorporated or unincorporated body, a class of incorporated or unincorporated bodies, or incorporated or unincorporated bodies generally.
3: An individual who acts in contravention of this section commits an offence ( see section 43E Section 43I inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43I(2A) inserted 1 May 2011 section 44 Securities Markets Amendment Act 2011
43J: Only 1 management ban may be made for same conduct
If conduct by a person constitutes grounds for making an order under any 1 or more of section 43F section 60A section 44F section 383 Section 43J inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Investment adviser or broker bans Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43K: When court may make banning orders for investment adviser or broker activities
Section 43K repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
43L: Terms of investment adviser or broker banning orders
Section 43L repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
43M: Offence of contravening investment adviser or broker banning order
Section 43M repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
43N: Persons automatically banned from investment adviser or broker activities
Section 43N repealed 1 July 2011 section 164(5) Financial Advisers Act 2008
43O: General provisions for bans and banning orders
1: The Registrar of the court must, as soon as practicable after the making of a banning order by a court under this Part,—
a: give notice to the Registrar of Companies and the FMA
b: give notice in the Gazette
2: A person intending to apply for the leave of the court to override a ban imposed by or under section 43F 43I 43K 43N FMA
3: The FMA Section 43O inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43O(1)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 43O(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 43O(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Orders to preserve assets to satisfy claims Heading inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43P: When court may prohibit payment or transfer of money, securities, or other property
1: This section applies if—
a: an investigation is being carried out under this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act or any regulations made under this Act
b: a prosecution has begun against a person for a contravention of this Act; or
c: a civil proceeding has begun against a person under this Act.
2: The court may, on application by the FMA section 43Q
3: In this section and section 43Q aggrieved person liable relevant person Corporations Act 2001 s 1323(1) (Aust) Section 43P inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43P(1)(a) amended 1 May 2011 section 45 Securities Markets Amendment Act 2011 Section 43P(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
43Q: What orders may be made
1: The orders that may be made under section 43P
a: an order prohibiting the relevant person from transferring, charging, or otherwise dealing with money, securities, or other property held or controlled by the relevant person:
b: an order prohibiting a person who is indebted to the relevant person or to an associated person of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed:
c: an order prohibiting a person holding money, securities, or other property, on behalf of the relevant person, or on behalf of an associated person of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, securities, or other property, is or are held:
d: an order prohibiting the taking or sending out of New Zealand by a person of money of the relevant person or of an associated person of the relevant person:
e: an order prohibiting the taking, sending, or transfer by a person of securities or other property of the relevant person, or of an associated person of the relevant person from a place in New Zealand to a place outside New Zealand (including the transfer of securities from a register in New Zealand to a register outside New Zealand):
f: an order requiring the relevant person, or any person holding money, securities, or other property on behalf of the relevant person or an associated person if the relevant person, to pay or transfer money, securities, or other property to a specified person to be held on trust pending determination of the investigation, prosecution, or civil proceeding:
g: an order appointing,—
i: if the relevant person is a natural person, a receiver or trustee, having any powers that the court orders, of the property or of part of the property of that person; or
ii: if the relevant person is a body corporate, a receiver or receiver and manager, having any powers that the court orders, of the property or of part of the property of that person:
h: if the relevant person is a natural person, an order requiring that person to deliver up to the court his or her passport and any other documents that the court thinks fit:
i: if the relevant person is a natural person, an order prohibiting that person from leaving New Zealand, without the consent of the court.
2: A reference in subsection (1)(e) or (g) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example,—
a: as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or
b: in a fiduciary capacity.
3: An order may be expressed to operate for a specified period or until the order is discharged by a further order under this section. Corporations Act 2001 s 1323(1), (2A), (6) (Aust) Section 43Q inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43R: Interim orders
1: If an application is made to the court for an order under section 43P
2: The court must not require the applicant or any other person, as a condition of granting an interim order under this section, to give an undertaking as to damages.
3: In determining an application for the grant of an interim order, the court must not take into account that the applicant is not required to give an undertaking as to damages. Corporations Act 2001 s 1323(3), (4) (Aust) Section 43R inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43S: Relationship with other law
1: Nothing in sections 43P to 43R
2: This section has effect subject to the Insolvency Act 1967 Corporations Act 2001 s 1323(7), (8) (Aust) Section 43S inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43T: Offence
A person commits an offence who contravenes an order by the court under section 43Q section 43R see section 43E Corporations Act 2001 s 1323(9), (10) Section 43T inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
6: General
Subpart 6 inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43U: Time for filing charging document for certain offences
1: Despite anything to the contrary in section 25
a: a charging document may be filed at any time in respect of an offence against section 39 43H 43I 43M 43N 43T
b: the limitation period in respect of an offence against section 36A(1) 36B(1) 36G(1) 36P(1) 36Z
2: Nothing in subsection (1) affects the application of section 25 Section 43U replaced 1 July 2013 section 413 Criminal Procedure Act 2011
43V: Evidence not otherwise admissible
In the exercise of its jurisdiction under this Act, the court may receive in evidence any statement, document, or information that would not be otherwise admissible that may in its opinion assist it to deal effectively with the matter. Section 43V inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43W: Court may order payment of
FMA's If the FMA FMA's Section 43W inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43W heading amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011 Section 43W amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 43W amended 1 May 2011 section 84(5) Financial Markets Authority Act 2011
43X: Orders to secure compliance
The court may, for the purpose of securing compliance with any other order it makes under this Part, direct a person to do or refrain from doing a specified act. Section 43X inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43Y: Giving notice of applications for court orders
Before making an order under this Part, the court may direct the person making the application for the order to—
a: give notice of the application to those persons the court thinks fit:
b: publish notice of the application in the manner the court thinks fit. Section 43Y inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43Z: General provisions as to court's orders
1: An order under this Part may be made on the terms and conditions the court thinks fit.
2: The court may revoke, vary, or suspend an order made under this Part on the terms and conditions the court thinks fit. Section 43Z inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43ZA: Persons entitled to appear before court
The following persons are entitled to appear and be heard at the hearing of an application to the court under this Part:
a: the applicant:
b: the public issuer:
c: a person who is alleged to have suffered, or to be likely to suffer, loss or damage because of an alleged contravention (whether that person or another person makes the allegation):
d: the FMA
e: the relevant registered exchange:
f: a person directed to be given notice of the application:
g: with the leave of the court, any other person. Section 43ZA inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006 Section 43ZA(d) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
43ZB: Knowledge of matters presumed if employee or agent knows matters
In any proceedings under this Act, it is presumed, in the absence of proof to the contrary, that a person knew, at a material time, of any matter if, at that time, an employee or agent of that person knew of the matter in his or her capacity as employee or agent. Section 43ZB inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
43ZC: No pecuniary penalty and fine for same conduct
A person cannot be ordered to pay a pecuniary penalty and be liable for a fine under this Act for the same conduct. Section 43ZC inserted 29 February 2008 section 12(1) Securities Markets Amendment Act 2006
6: Miscellaneous
Part 6 heading inserted 29 February 2008 section 14 Securities Markets Amendment Act 2006 General provisions Heading inserted 29 February 2008 section 14 Securities Markets Amendment Act 2006
44: Commission may exercise powers under Securities Act 1978
Section 44 repealed 1 May 2011 section 82 Financial Markets Authority Act 2011
45: Actions of other persons on behalf of registered exchanges
1: If a person acts on behalf of a registered exchange,—
a: this Act applies to that person in the same way as it would apply to the registered exchange if it were acting itself (with any necessary modifications); and
b: the registered exchange is also responsible under this Act for the acts of the person as if it were acting itself (with any necessary modifications).
2: Subsection (1) applies except as expressly provided by this Act. Section 45 substituted 1 December 2002 section 24 Securities Markets Amendment Act 2002
46: Protection for acting on
FMA A registered exchange, or an officer or employee of a registered exchange, is not liable for any act done or omitted to be done by that person in compliance with a direction by the FMA section 36ZO Section 46 substituted 1 December 2002 section 24 Securities Markets Amendment Act 2002 Section 46 heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 46 amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
47: Protection from liability for registered exchanges and others
1: A registered exchange is not liable for anything it may do or fail to do in the course of the exercise or intended exercise of its functions or duties under Part 2 Part 2B
2: An officer, an employee, or a person acting on behalf of a registered exchange is not liable for anything he or she may do or say or fail to do or say in the course of the exercise or intended exercise of the registered exchange's functions or duties under Part 2 Part 2B Section 47 substituted 1 December 2002 section 24 Securities Markets Amendment Act 2002
47AA: Protection from liability in connection with unsolicited offer obligations
1: This section applies to any person who—
a: is stated by the regulations made under section 48DB
b: is not in contravention of an unsolicited offer obligation or exemption.
2: A person to whom this section applies is not liable for any act done or omitted to be done by that person in good faith if the act or omission is—
a: required by an unsolicited offer order made by the FMA; or
b: required by an order made by the court under Part 5
c: stated by the regulations made under section 48DB Section 47AA inserted 1 May 2011 section 46 Securities Markets Amendment Act 2011 Appeals Heading inserted 1 May 2011 section 46 Securities Markets Amendment Act 2011
47A: Appeals against decisions of FMA on questions of law only
A person that considers that a decision of the FMA under any of the following provisions is wrong in law may appeal against the decision to the High Court on a question of law only:
a: section 34
b: section 36ZO
c: subpart 1 Section 47A inserted 1 May 2011 section 46 Securities Markets Amendment Act 2011 Exemptions granted and removed by FMA Heading inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
48: Exemptions granted by FMA
1: The FMA may, on the terms and conditions (if any) that it thinks fit,—
a: exempt any transaction, class of transactions, person, class of persons, or class of relevant interests, acquisitions, or disposals from compliance with any directors' and officers' disclosure obligation or obligations:
b: exempt any person or class of persons, any transaction or class of transactions, or any class of relevant interests, substantial holdings, or relevant events from compliance with any substantial holding disclosure obligation or obligations:
c: exempt any offer, class of offers, security, class of securities, person, or class of persons from compliance with any unsolicited offer obligation or obligations:
d: exempt any person or class of persons from compliance with any requirement of the Futures Industry (Client Funds) Regulations 1990
2: The FMA must not grant an exemption under this section unless it is satisfied that—
a: the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption; and
b: in the case of subsection (1)(d), there are adequate alternative safeguards for preserving client money and client property. Section 48 substituted 1 May 2011 section 47 Securities Markets Amendment Act 2011
48A: Status and publication of exemptions
1: An exemption granted under section 48
a: is a disallowable instrument for the purposes of the Legislation Act 2012
b: must be presented to the House of Representatives under section 41
2: A class exemption (but not any other exemption granted under section 48 Legislation Act 2012
3: An exemption granted under section 48
a: published on an Internet site maintained by or on behalf of the FMA; and
b: notified in the Gazette
c: made available in printed form for purchase on request by members of the public.
4: A notification in the Gazette
5: The FMA's reasons for granting an exemption under section 48
6: In this section, class exemption
a: means an exemption of general application that applies to a class of persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals; but
b: does not include an exemption granted in relation to—
i: particular persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals; or
ii: persons, transactions, offers, securities, relevant interests, substantial holdings, relevant events, acquisitions, or disposals associated with or involving a particular entity. Section 48A substituted 1 May 2011 section 47 Securities Markets Amendment Act 2011 Section 48A(1) replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 48A(2) replaced 5 August 2013 section 77(3) Legislation Act 2012
48B: Variation or revocation of exemptions
1: The FMA may vary or revoke an exemption granted under section 48
2: Section 48A Section 48B substituted 1 May 2011 section 47 Securities Markets Amendment Act 2011
48C: FMA
1: The FMA Gazette section 6(1)(a) to (g) subpart 2 subpart 3 section 31 section 32A
2: The FMA
3: The FMA Gazette
4: A notice under this section has effect according to its tenor.
5: A notice under this section takes effect from the date stated in the notice (which must not be earlier than the date of the Gazette Section 48C inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 48C heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48C(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48C(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48C(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
48D: Requirements for
FMA
1: Before designating a person as not exempt under section 48C FMA
a: do everything reasonably possible on its part to advise the person of the proposed designation; and
b: give the person a reasonable opportunity to make submissions to the FMA
2: Subsection (1) does not apply to a designation if the FMA
3: Failure to comply with subsection (1) does not invalidate the designation.
4: The FMA Section 48D inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 48D heading amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48D(1) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48D(1)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48D(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 48D(4) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Regulations Heading inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006
48DA: Definitions relating to unsolicited offer regulations and related provisions
1: For the purposes of this Act, an unsolicited offer
a: the offer is to acquire a security, to acquire a power to dispose of a security, or to acquire another interest in or right attaching to a security, made by a person ( A B
b: it is unsolicited by B:
c: it is not made on a registered market:
d: it is within the class or classes of unsolicited offers to which the regulations apply:
e: it is not a takeover offer for securities under the takeovers code or an acquisition or a redemption by a company of its shares under the Companies Act 1993
2: For the purposes of this section, sections 47AA 48DB 48DC
a: associated person section 49(7)(b)
b: an offer
c: regulations may define or clarify the meaning of unsolicited Section 48DA inserted 1 May 2011 section 48 Securities Markets Amendment Act 2011
48DB: Regulations concerning unsolicited offer regulations
1: The Governor-General may, on the recommendation of the Minister in accordance with subsection (3), make regulations setting out the rules applying to unsolicited offers for any or all of the purposes set out in subsection (2).
2: The purposes are—
a: ensuring offerees are fully informed of—
i: the current market price of a listed security or, for a non-listed security, a fair estimate of the value of the security and the basis for making that estimate; and
ii: the material terms of the offer and their effect; and
iii: any warnings issued by the FMA (if ordered by the FMA to be contained in or to accompany offer documents); and
iv: their rights and remedies under the regulations:
b: ensuring that notice of an unsolicited offer to security holders is given to the relevant public issuer or issuer and the FMA:
c: ensuring that no agreement to transfer may bind offerees for a minimum period for the purpose of enabling offerees to consider, and reconsider, any decision to accept an offer:
d: requiring there to be minimum or maximum offer periods or both:
e: setting out any other rules applying to unsolicited offers.
3: In formulating recommendations to make regulations under this section, the Minister must—
a: have regard to the objective of preventing unfair practices in the making of unsolicited offers; and
b: consult with the FMA. Section 48DB inserted 1 May 2011 section 48 Securities Markets Amendment Act 2011
48DC: Specific provisions for regulations concerning unsolicited offers
The regulations made under section 48DB
a: define the class or classes of unsolicited offers and securities to which the regulations apply:
b: prescribe requirements in relation to unsolicited offers and the making of those offers, including requirements as to the form and content of those offers, variations of those offers, the updating and resending of offer documents or other corrective statements, and the implication of terms into the offer or any resulting agreement:
c: prescribe the information, statements, certificates, or other documents that must be supplied to offerees, the relevant public issuer or issuer, and the FMA:
d: provide for any duties or functions of the FMA in connection with the rules applying to unsolicited offers:
e: state which obligations are unsolicited offer obligations for the purposes of this Act:
f: provide for the exercise of a right to withdraw a notification of a decision to accept an unsolicited offer, a right to refuse to complete a transfer, or any other right or remedy of offerees, and any consequences and obligations that apply in those cases:
g: provide for any powers of, and requirements on, public issuers, issuers, or their agents in connection with transfers under an unsolicited offer and provide for protections from liability for those persons, persons administering a register of securities, and other persons for the purposes of section 47AA
h: provide for the regulations to—
i: extend to, or in respect of, any conduct of an associated person of an offeror and any conduct that, in substance or effect, constitutes an unsolicited offer:
ii: prohibit contracting out of the regulations and include any other provision or provisions designed to prevent avoidance of the regulations (for example, prohibiting persons inviting others to make an offer to sell a security in circumstances in which, if the invitation were an offer to acquire the security, it would be an unsolicited offer to which the regulations applied):
i: provide for transitional matters. Section 48DC inserted 1 May 2011 section 48 Securities Markets Amendment Act 2011
48E: Regulations requiring continuous disclosure by public issuers
1: The Governor-General may, on the recommendation of the Minister in accordance with section 48F section 48G section 19C
2: Those regulations may—
a: declare that section 19C
b: contain requirements for the purpose of requiring public issuers that are parties to listing agreements with that exchange to notify information about events or matters as they arise (being material information that is not generally available to the market) for the purpose of that information being made available to participants in the registered exchange's securities market
c: determine the form in which, how, and when that information must be made available to participants in the registered exchange's securities market
d: determine the form of, method of, and any additional details required with, the notification of that information, or provide who may determine any of these matters:
e: exempt (on terms and conditions, if any) persons, classes of persons, information, and classes of information from compliance with any provision or provisions of the regulations:
f: provide for a specified person or persons to exempt (on terms and conditions, if any) persons, classes of persons, information, and classes of information from compliance with any provision or provisions of the regulations, and to vary and revoke those exemptions:
g: provide for a specified person or persons to carry out functions under the regulations, and the powers and procedures of that person or persons:
h: require fees and charges to be paid in connection with the performance or exercise of a function or power referred to in paragraph (f) or paragraph (g)
i: provide for transitional provisions.
3: A failure to comply with section 48F(3) section 48G(2)(b) to (d) Section 48E inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 48E(2)(b) amended 24 November 2009 section 22 Securities Markets Amendment Act 2009 Section 48E(2)(c) amended 24 November 2009 section 22 Securities Markets Amendment Act 2009
48F: Requirements for regulations replacing continuous disclosure listing rules
1: This section applies if the Minister proposes to recommend regulations to declare that section 19C
2: The Minister may make a recommendation under section 48E
a: has had regard to the purpose of subpart 1 section 19A
b: is satisfied that, over time, the continuous disclosure provisions of the registered exchange's listing rules, or the registered exchange's administration of those provisions, has not achieved the purpose of that subpart.
3: The Minister must, before making that recommendation,—
a: give at least 3 months' written notice of the proposed recommendation, and of the Minister's reasons for his or her opinion under subsection (2)(b), to—
i: the FMA
ii: the relevant registered exchange; and
iii: any other persons that the Minister thinks are representative of the interests of persons likely to be substantially affected by the proposal; and
b: have regard to any submissions made by those persons within the notice period given; and
c: give at least 14 days' written notice to the persons in paragraph (a) Gazette Section 48F inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 48F(3)(a)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
48G: Ongoing requirements for continuous disclosure regulations
1: This section applies if the Minister proposes to recommend regulations to amend, revoke, or replace regulations made under section 48E
2: The Minister must, before making a recommendation under section 48E
a: have regard to the purpose of subpart 1 section 19A
b: give written notice of the proposed recommendation to—
i: the FMA
ii: the relevant registered exchange; and
iii: any other persons that the Minister thinks are representative of the interests of persons likely to be substantially affected by the proposal; and
c: have regard to any submissions made by those persons within the notice period given; and
d: give at least 14 days' written notice to the persons in paragraph (b), and in the Gazette Section 48G inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 48G(2)(b)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
49: Regulations concerning directors' and officers' disclosure obligations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsection (2), make regulations for the purpose of—
a: declaring any persons (whether described as a class or otherwise) not to be officers for the purpose of the definition of officer in section 2
b: prescribing further matters relating to a relevant interest, or acquisition or disposal of a relevant interest, that must be disclosed by directors and officers under subpart 2
i: the nature of the relevant interest:
ii: the number and class of securities to which the relevant interest relates or related:
iii: the date of the disclosure obligation becoming applicable, or the date of the acquisition or disposal:
iv: the consideration paid or received for the acquisition or disposal:
v: details as to the circumstances in which the acquisition or disposal occurred:
vi: the date of the last disclosure by the director or officer:
c: determining when the disclosure in paragraph (b) is required (including by requiring disclosure only on request) and prescribing the form of or for, and the method of, disclosure, or providing for the relevant registered exchange to determine that form or method and for the way in which it must do so:
d: exempting (on terms and conditions, if any) classes of persons, classes of transactions, or classes of relevant interests, acquisitions, or disposals from compliance with any directors' and officers' disclosure obligation or obligations.
2: The Minister must consult with the FMA Section 49 substituted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 49(2) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
49A: Regulations concerning substantial holding disclosure
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsection (3), make regulations for the purpose of—
a: prescribing further matters relating to a matter, a relevant event, or a substantial holding, that must be disclosed under subpart 3
i: the nature of the relevant interests in the substantial holding (including before and after the relevant event in the case of sections 23 24
ii: the number, nominal value (if any), and class of securities in which the person has or had the substantial holding (including before and after the relevant event in the case of sections 23 24
iii: the date of the relevant event:
iv: the terms and conditions (including consideration) of the transaction giving rise to the relevant event:
v: details as to the circumstances in which the relevant event occurred:
vi: the date of the last disclosure by the person under that subpart in respect of the substantial holding:
vii: information relating to the relevant event or substantial holding and concerning other persons who have made disclosures under that subpart:
b: prescribing the documents, certificates, and statements that must accompany or be annexed to those disclosures:
c: determining when disclosure of the further matters referred to in paragraph (a) is required (including by requiring disclosure only on request):
d: prescribing the form of or for, and the method of, disclosure under that subpart (and of any other acknowledgments or notices required by the subpart), or providing for the relevant registered exchange to determine that form or method and providing for the way in which it must do so:
e: exempting (on terms and conditions, if any) classes of persons, classes of transactions, or classes of relevant interests, substantial holdings, or relevant events from compliance with any substantial holding disclosure obligation or obligations.
2: The further matters prescribed for disclosures required by section 22 25 section 15(1)(a)
3: The Minister must consult with the FMA Section 49A inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 49A(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
49B: Regulations concerning dealing in futures contracts
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, in accordance with subsection (3), make regulations for the purpose of—
a: regulating the business and operations of authorised futures exchanges:
b: regulating the carrying on of the business of dealing in futures contracts and prescribing requirements that must be met by persons dealing in those contracts including requirements relating to the disclosure of financial and other information and the appointment and duties of trustees:
c: regulating the receipt of money and property from clients by persons dealing in futures contracts and the application of that money and property:
d: prescribing requirements relating to the deposit of that money and property in separate clients' funds accounts or safe custody, as the case may be:
e: specifying the duties and obligations of those dealers in relation to clients' funds accounts including obligations to make payments into those accounts:
f: providing for the protection of money deposited in clients' funds accounts and the investment of that money and property deposited in safe custody from claims against persons dealing in futures contracts:
g: providing for the FMA
2: Without limiting subsection (1), regulations made under that subsection may also apply to persons acting on behalf of an authorised futures exchange in the same way that they apply to the authorised futures exchange.
3: The Minister must consult with the FMA Section 49B inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 49B(1)(g) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49B(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
49C: Regulations concerning investment advisers and brokers
Section 49C repealed 1 July 2011 section 164(7) Financial Advisers Act 2008
49D: Other regulations
1: The Governor-General may, by Order in Council made on the recommendation of the Minister in accordance with subsection (3), make regulations for the purpose of—
a: exempting (on terms and conditions, if any) anything from being dealings in securities for the purposes of the general dealing misconduct prohibition:
b: exempting (on terms and conditions, if any) conduct from being—
i: insider conduct, that is conduct that would otherwise fall within section 8C section 8D section 8E
ii: market manipulation, that is conduct that would otherwise fall within section 11 section 11B
c: requiring information to be provided in a notice under section 36ZD
d: prescribing fees and charges to be paid for the purposes of this Act, or a means by which fees and charges may be calculated or ascertained:
e: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Without limiting subsection (1)(d), regulations made under that paragraph may—
a: authorise the FMA
i: in connection with the exercise by the FMA
ii: on an application to the FMA
iii: from a person for advice provided by the FMA
b: authorise the FMA FMA
3: The Minister must consult with the FMA Section 49D inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006 Section 49D(2)(a) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49D(2)(a)(i) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49D(2)(a)(ii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49D(2)(a)(iii) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49D(2)(b) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011 Section 49D(3) amended 1 May 2011 section 84(3) Financial Markets Authority Act 2011
49E: Breach of exemption conditions
The breach of a term or condition of an exemption provided by regulations made under this Act or by notice under section 48 Section 49E inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006
49F: Regulations or exemptions in respect of specified overseas jurisdictions
Without limiting sections 48 to 49D Section 49F inserted 29 February 2008 section 13 Securities Markets Amendment Act 2006
50: Disclosure of information relating to inspection
Section 50 repealed 1 December 2002 section 25 Securities Markets Amendment Act 2002
51: Regulations and Orders in Council
Section 51 repealed 1 December 2002 section 25 Securities Markets Amendment Act 2002
52: Fees and charges
Section 52 repealed 1 December 2002 section 25 Securities Markets Amendment Act 2002