Securities Amendment Act 2011

1: Title
This Act is the Securities Amendment Act 2011.
2: Commencement
1: This Act (apart from sections 5(3) 16(3) 22 40 43(2) 49(3) to (6)
2: Sections 5(3) 16(3) 22 40 43(2) 49(3) to (6)
3: To the extent that the provisions referred to in subsection (2) are not previously brought into force under that subsection, those provisions come into force on 1 July 2013.
3: Principal Act amended
This Act Securities Act 1978 2011-05-01 Securities Act 1978
4: Long Title amended
The Long Title is amended by omitting to establish a Securities Commission; and
5: Interpretation
1: Section 2(1) Commission overseas regulator registered prospectus Registrar Takeovers Panel
2: Section 2(1) FMA Part 2 Financial Markets Authority Act 2011 registered prospectus
a: except if paragraph (b)
i: a prospectus that has been registered under section 42 section 43G(2)(b)
ii: a document that, except in the matters specified in section 41(1)
b: if an instrument that amends a prospectus of the kind specified in paragraph (a)(i) section 43 section 43G(2)(b)
i: that prospectus as so amended; or
ii: a document that, except for the matters specified in section 41(1) Registrar .
3: 2013-07-01 Securities Act 1978 see section 2(2); section 5(3) to come into force by OIC, but if not, then come into force on 1 July 2013 (see section 2(3)) Section 5(3) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
6: Meaning of advertisement
Section 2A(2)
c: documents, information, and other matters required to be made publicly available under section 54C
7: Exemptions from this Act
1: Section 5
2: An exemption under subsection (1) does not apply—
a: in the circumstances prescribed by regulations made under section 70AAA
b: if any additional requirements prescribed by regulations made under section 70AAA
2: Section 5(2C) 44 43B
3: Section 5(2D) 38F 38E and 43F
4: Section 5(3) 69 65F
5: Section 5(4) 38F 38E
6: Section 5(5) to (6)
8: Exemption for employer superannuation schemes
Section 5A 44 43B
9: Previously allotted securities
Section 6(1) 44 43B
10: Term implied in certain offers of previously allotted securities
Section 6A(1)(a) 44 43B
11: Part 1 repealed
Part 1
12: Restrictions on offer of securities to the public
1: Section 33(2)
ab: the trust deed complies with this Act and the regulations; and .
2: Section 33(3)
ab: the deed of participation complies with this Act and the regulations; and .
13: Restrictions on distribution of prospectuses
Section 34(1)(a) memorandum an instrument
14: Void irregular allotments
Section 37
1B: No allotment of a security offered to the public for subscription may be made in contravention of section 43D(1), 43I(4), or 43K(5)(b)
15: Court must make relief order in certain circumstances
Section 37AC(1)(e)
i: the contravention of section 37 was caused by a failure to comply with a condition of an exemption granted under section 5(5) (as in force before its repeal) or under section 70B .
16: Consent for purposes of section 37AC(1)(c) or (d)
1: Section 37AD(1)(b)(iii) granted under section 5(5) or provided under section 5(3A) or 5A of a kind referred to in section 37AC(1)(e)(i)
2: Section 37AD(1)(b)(iv) section 5 this Act
3:
4: Section 37AD(2) section 5 or section 5A this Act 2013-07-01 Securities Act 1978 see section 2(2); section 16(3) to come into force by OIC, but if not, then come into force on 1 July 2013 (see section 2(3)) Section 16(3) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
17: Voidable irregular allotments
Section 37A(1)(ab)(i)
B: every instrument that amends that prospectus that is registered under section 43 .
18: Prohibition of advertisements
Section 38B
7: The FMA must, after an order has been made under this section, give the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter.
19: Section 38F repealed
Section 38F
20: Requirements relating to prospectuses delivered to Registrar for registration
Section 41
2: The prescribed information and documents (if any) must be supplied to the Registrar, when the prospectus is delivered to the Registrar for registration, in the manner specified by the Registrar.
21: New sections 42 to 43M substituted
Sections 42 to 44
42: Registration of prospectus
1: The Registrar must promptly register every prospectus delivered to him or her.
2: However, the Registrar must refuse to register a prospectus if,—
a: in his or her opinion,—
i: it does not comply with section 39(1)(a) or 41(1)(b)
ii: it contains any material matter that is not clearly legible; or
iii: section 41(2)
b: the prescribed amount payable on registration is not paid; or
c: the date of registration would be earlier than the date of the prospectus.
3: The Registrar must, on the registration of a prospectus under this section, give a certificate of the registration (and the certificate is conclusive evidence that the prospectus has been registered under this section).
4: The certificate must specify a registration number for the prospectus.
43: Amendment of registered prospectus
1: A registered prospectus may be amended by an instrument to amend the prospectus that is delivered to the Registrar and registered under this section.
2: The prescribed information and documents (if any) must be supplied to the Registrar, when an instrument to amend the prospectus is delivered to the Registrar for registration, in the manner specified by the Registrar.
3: Every instrument to amend a registered prospectus that is delivered to the Registrar must be—
a: signed by the issuer of the prospectus (if an individual) and every person who is a director of the issuer at the time the instrument is delivered to the Registrar, or by the issuer's or director's agent authorised in writing; and
b: accompanied by a copy of the registered prospectus as amended.
4: The Registrar must promptly register every instrument delivered to him or her in accordance with this section.
5: However, the Registrar must refuse to register an instrument under this section if,—
a: in his or her opinion,—
i: he or she could, under section 42(2)
ii: subsection (2) or (3)
b: the prescribed amount payable on registration is not paid; or
c: the date of the registered prospectus is altered.
6: The Registrar must, on the registration of an instrument of amendment under this section, give a certificate of that registration (and the certificate is conclusive evidence that the instrument has been registered under this section).
43A: Registrar not required to consider certain matters
It is not the function of the Registrar, when acting under section 42 or 43
a: complies with section 39(1)(b) or (c), 40, or 41(1)(a)
b: contains a statement that is false or misleading as to a material particular or omits any material particular.
43B: Publication of registration
1: If a prospectus, or an instrument to amend a prospectus, is registered under section 42 or 43
a: contains a reasonably prominent statement—
i: to the effect that the prospectus or instrument has been registered; and
ii: describing where a copy of the prospectus or instrument can be obtained; or
b: contains a reasonably prominent link to such a statement.
2: The statement or link referred to in subsection (1)
3: If a prospectus, or an instrument to amend a prospectus, is registered under section 42 or 43
4: The Registrar may, in any manner that the Registrar thinks fit, give notice to any person or class of persons or to the public generally of any changes in the information referred to in section 43P FMA's consideration of prospectuses, amendments, trust deeds, and deeds of participation
43C: FMA's consideration of prospectuses, amendments, trust deeds, and deeds of participation
1: The Registrar must, immediately after a prospectus or an instrument to amend a prospectus is registered under this Act, notify the FMA of the registration for the purpose of allowing the FMA an opportunity to consider whether the prospectus, or the prospectus as amended,—
a: complies with this Act and the regulations; or
b: contains any material misdescription or error or any material matter that is not clearly legible; or
c: is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus or instrument was registered).
2: The Registrar must, immediately after a trust deed, a deed of participation, or an instrument to amend a deed of that kind is registered under this Act, notify the FMA of the registration for the purpose of allowing the FMA an opportunity to consider whether the trust deed or deed of participation, or the trust deed or deed of participation as amended,—
a: complies with this Act and the regulations; or
b: contains any material misdescription or error or any material matter that is not clearly legible.
3: The nature and extent of the consideration (if any) that the FMA gives to a prospectus, trust deed, or deed of participation or an instrument to amend a prospectus or deed is at the FMA's discretion.
4: Nothing in this section or any other provision of this Act limits the FMA's power to consider or reconsider at any time whether—
a: a registered prospectus—
i: complies with this Act and the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible; or
iii: is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus or instrument was registered):
b: a trust deed or deed of participation—
i: complies with this Act and the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible.
43D: No allotments may be made and no applications or subscription money may be accepted during consideration period
1: No allotment of securities offered to the public for subscription may be made, and no applications for those securities or subscriptions for those securities may be accepted, during the period—
a: starting on the date that the prospectus relating to the offer of the securities is registered; and
b: ending on the close of—
i: the date that is 5 working days after that date; or
ii: a later date specified by the FMA by notice to the issuer.
2: However,—
a: if the prospectus is a continuous issue prospectus, subsection (1) section 43EA
b: if subsection (1) subsection (1)
i: an offer and allotment of those securities being made in accordance with this Act in reliance upon the other registered prospectus; and
ii: applications for those securities and subscriptions for those securities from being accepted in respect of the offer and allotment referred to in subparagraph (i)
3: In subsection (2) and section 43EA continuous issue prospectus
a: relates to securities that the issuer, in the ordinary course of its business, continuously offers to the public for subscription; and
b: is not the first prospectus to be registered in respect of that class of securities.
4: The later date specified under subsection (1)(b)(ii)
5: If a person contravenes subsection (1) section 37(1B) subsection (1)
43E: FMA may remove restrictions if its consideration is complete or consideration or further consideration is unnecessary
1: This section applies if the FMA is satisfied that—
a: its consideration of a prospectus is complete; or
b: consideration or further consideration of a prospectus is, in the circumstances, unnecessary.
2: The FMA may give notice to the issuer that—
a: the period that applies under section 43D section 43D
b: section 43D(1)
3: Section 43D
4: Nothing in this section limits section 70B section 43D
43EA: FMA may prescribe classes of continuous issue prospectuses to which section 43D(1) applies
1: The FMA may issue a notice that prescribes the class or classes of continuous issue prospectuses to which section 43D(1)
2: The FMA must, before issuing a notice under subsection (1) section 43C(1)
3: A notice issued by the FMA—
a: is a regulation for the purposes of the Regulations (Disallowance) Act 1989 and must be presented to the House of Representatives under section 4 of that Act; and
b: is a regulation for the purposes of the Acts and Regulations Publication Act 1989.
4: The FMA may vary or revoke a notice issued under this section, and subsections (2) and (3) FMA's powers to prohibit distribution of investment statements, prohibit allotments, or cancel registration of prospectuses
43F: Prohibition of distribution of investment statement
1: The FMA may, at any time, make an order prohibiting the distribution of an investment statement if the FMA is of the opinion that the investment statement—
a: is likely to deceive, mislead, or confuse with regard to any particular that is material to the offer of securities to which it relates; or
b: is inconsistent with any registered prospectus referred to in it; or
c: does not comply with this Act or the regulations.
2: If an order is made under subsection (1)
a: no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the investment statement relates):
b: all subscriptions received for securities to which the investment statement relates, not being subscriptions for securities that were allotted before the order is made or subscriptions received after the order is revoked, must be immediately repaid to the subscribers.
3: An allotment made in contravention of subsection (2)(a)
43G: FMA may prohibit allotment or cancel registration
1: This section applies if, at any time, the FMA is of the opinion that—
a: a registered prospectus does not comply with this Act or the regulations; or
b: a registered prospectus contains any material misdescription or error or any material matter that is not clearly legible; or
c: a registered prospectus is false or misleading as to a material particular or omits any material particular (whether or not it was so false or misleading, or the omission was material, at the time the prospectus was registered); or
d: section 41 has not been complied with in respect of a registered prospectus; or
e: a trust deed or deed of participation in respect of the securities offered in a registered prospectus—
i: does not comply with this Act or the regulations; or
ii: contains any material misdescription or error or any material matter that is not clearly legible.
2: The FMA may exercise either or both of the following powers in respect of the registered prospectus if it considers that it is desirable in the public interest:
a: make an order prohibiting the allotment of securities under the registered prospectus for a period not exceeding 18 months:
b: cancel the registration of the registered prospectus (with effect from the time that the Registrar is notified of the cancellation).
3: If an order is made under subsection (2)(a)
a: during the period in which the order is in force, no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the prospectus relates); and
b: all subscriptions received for securities to which the prospectus relates, not being subscriptions for securities that were allotted before the order is made or subscriptions received after the order ceases to be in force, must be immediately repaid to the subscribers.
4: If the registration of a registered prospectus is cancelled,—
a: no allotment may be made of any securities subscribed for whether before or after the cancellation (being securities to which the prospectus relates); and
b: all subscriptions received for securities to which the prospectus relates, not being subscriptions for securities that were allotted before the cancellation, must be immediately repaid to the subscribers.
5: An allotment made in contravention of subsection (3)(a) or (4)(a)
43H: Repayment of subscriptions
1: If any subscriptions that are required under section 43F or 43G
2: A director of an issuer is not liable to repay any subscriptions and interest on the subscriptions under subsection (1)
3: In this section, relevant date
a: in the case of subscriptions received before the order is made under section 43F or 43G
b: in any other case, the date that the subscriptions are received by or on behalf of the issuer.
43I: Order may be made on terms and conditions and may be varied or revoked
1: The FMA may make an order under section 43F or 43G
2: The FMA may vary an order under section 43F or 43G
3: The FMA may, either of its own volition or on the application of the person concerned, revoke an order under section 43F or 43G
4: No allotment may be made of a security—
a: to which an investment statement relates in contravention of the terms or conditions of an order under section 43F
b: that is offered under a prospectus to which an order under section 43G
5: If a person contravenes subsection (4) section 37(1B)
43J: Notices and submissions concerning exercise of power under section 43F, 43G, or 43I(2) or (3)
1: The FMA may exercise a power under section 43F, 43G, or 43I(2) or (3)
a: the FMA gives the issuer at least 5 working days' written notice of the following matters before the FMA exercises the power:
i: that the FMA may make an order under section 43F or 43G section 43I(2) or (3) section 43G
ii: the reasons why it is considering exercising that power; and
b: the FMA gives the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
2: If the FMA exercises a power under section 43F or 43G
a: it must, immediately after exercising the power, notify the issuer of—
i: the reasons for making the order or for the cancellation; and
ii: the terms and conditions of the order (if any); and
b: it must, immediately after exercising the power, give notice to the Registrar and on its Internet site of—
i: the reasons for making the order or for the cancellation; and
ii: the terms and conditions of the order (if any); and
iii: any other information the FMA thinks relevant in the circumstances; and
c: it may give public notice by any other means of the matters in paragraph (b)
d: it may notify any other person of the matters in paragraph (b)
3: If the FMA varies or revokes an order under section 43I
a: it must, immediately after exercising the power, notify the Registrar and the issuer of—
i: the terms and conditions of the variation or revocation; and
ii: the reasons for the variation or revocation; and
iii: any other information the FMA thinks relevant in the circumstances; and
b: it may give notice on its Internet site or give public notice by any other means of those matters; and
c: it may notify any other person of those matters.
43K: FMA may make interim orders pending exercise of powers
1: The FMA may make an interim order that prohibits the allotment of securities—
a: to which an investment statement relates while the interim order is in force if—
i: the FMA is considering, at any time, whether it may exercise a power under section 43F
ii: the FMA considers that making an interim order is desirable in the public interest:
b: under a registered prospectus while the interim order is in force if—
i: the FMA is considering, at any time, whether it may exercise a power under section 43G
ii: the FMA considers that making an interim order is desirable in the public interest.
2: An interim order under subsection (1)
a: the date that is 15 working days after the day on which it is made; or
b: a later date specified by the FMA by notice to the issuer.
3: For the purposes of subsection (2)(b)
a: the FMA may specify a later date if the FMA is of the opinion that it is not reasonably practicable for it to complete its consideration as referred to in subsection (1)(a)(i) or (b)(i) subsection (2)(a)
b: the later date must be a date that is no more than 30 working days after the day on which the interim order is made.
4: The FMA—
a: may act under subsection (1) or (2)(b)
b: must, after acting under subsection (1) or (2)(b)
5: If an interim order is made in respect of an investment statement or a registered prospectus,—
a: the FMA must immediately after making the order notify the issuer and the Registrar that the order has been made and the reasons for the order; and
b: during the period in which the order is in force, no allotment may be made of any securities subscribed for whether before or after the order is made (being securities to which the investment statement or prospectus relates); and
c: section 37(1B) paragraph (b)
43L: FMA may revoke interim order
1: The FMA may revoke an interim order made under section 43K
2: If an interim order is revoked, the FMA must immediately notify the issuer and the Registrar of the revocation.
43M: Nothing done or omitted to be done by Registrar or FMA guarantees or represents that prospectus complies with Act and regulations
1: Nothing done or omitted to be done under this Act by the Registrar or the FMA guarantees or represents that—
a: a prospectus—
i: complies with this Act and the regulations:
ii: does not contain any material misdescription or error or any material matter that is not clearly legible:
iii: is not false or misleading as to a material particular:
iv: does not omit any material particular; or
b: the FMA has considered a prospectus with a view to determining whether it—
i: complies with this Act and the regulations:
ii: contains any material misdescription or error or any material matter that is not clearly legible:
iii: is false or misleading as to a material particular:
iv: omits any material particular.
2: This section does not limit section 22 Financial Markets Authority Act 2011
22: New heading and sections 43N to 43S inserted
2013-07-01 Securities Act 1978 see section 2(2); section 22 to come into force by OIC, but if not, then comes into force on 1 July 2013 (see section 2(3)) Section 22 repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
23: Notices and submissions concerning delayed allotment orders
Section 44AB
1: The FMA may make a delayed allotment order only if—
a: the FMA gives the issuer at least 3 working days' written notice of the following matters before the FMA makes the delayed allotment order:
i: that the FMA is considering making a delayed allotment order; and
ii: the paragraph of section 44A(1) that is alleged to apply to the issuer; and
iii: the reasons why the FMA is considering making a delayed allotment order; and
b: the FMA gives the issuer or the issuer's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
24: Limited notice and submissions for urgent delayed allotment orders
Section 44AC
a: it may give less than 3 working days' notice before it makes the order, and the notice and the submissions may be oral rather than written; but .
25: Notices and submissions concerning prohibition orders
Section 44AF
1: The FMA may make a prohibition order only if—
a: the FMA gives the person concerned ( person A
i: that the FMA is considering making a prohibition order; and
ii: the nature of person A's failure to comply with his, her, or its disclosure obligations; and
iii: the reasons why the FMA is considering making the prohibition order; and
b: the FMA gives person A or person A's representative an opportunity to make written submissions and to be heard on the matter within that notice period.
26: Commission's powers in respect of contributory mortgages
Section 44B
2: The FMA may, either on the receipt of that report or for any other reason, if it is satisfied that a contributory mortgage broker is contravening, or has contravened, any of the provisions of this Act or the regulations, and that it is desirable in the public interest to do so, exercise any 1 or more of the following powers:
a: make an order prohibiting the contributory mortgage broker from offering interests in contributory mortgages to the public for subscription for a period not exceeding 10 working days; or
b: make an order prohibiting the contributory mortgage broker from offering interests in contributory mortgages to the public for subscription for the period that the FMA thinks fit; or
c: make an order that the contributory mortgage broker must promptly cease to act as contributory mortgage broker in respect of all or any contributory mortgages that have previously been allotted by him, her, or it, and make an order appointing another person to act as contributory mortgage broker in his, her, or its place with respect to those contributory mortgages; or
d: make an order removing any of the directors of any nominee company of the contributory mortgage broker and make an order appointing any person as a director in his or her place.
2A: The FMA—
a: may act under subsection (2)(a)
b: must, after acting under subsection (2)(a)
2B: The FMA may make an order under subsection (2)(b) to (d)
a: the FMA gives the relevant person or persons at least 5 working days' written notice of the following matters before the FMA makes the order:
i: that the FMA is considering making an order under subsection (2)(b), (c), or (d)
ii: the reasons why it is considering making the order; and
b: the FMA gives the relevant person or persons or a representative of the relevant person or persons an opportunity to make written submissions and to be heard on the matter within that notice period.
2C: In subsection (2B) relevant person or persons
a: in the case of subsection (2)(b) or (c)
b: in the case of subsection (2)(d)
27: Sections 46 to 47A substituted
Sections 46 47
46: Registration of trust deeds and deeds of participation
1: The Registrar must promptly register every copy of a trust deed or deed of participation delivered to him or her for registration under this Act.
2: However, the Registrar must refuse to register a copy of a trust deed or deed of participation if,—
a: in his or her opinion, it contains any material matter that is not clearly legible; or
b: the prescribed amount payable on registration is not paid.
3: The Registrar must, on the registration of a copy of a trust deed or deed of participation under this section, give a certificate of that registration (and the certificate is conclusive evidence that the deed has been registered under this section).
47: Amendment of registered deed
1: If a trust deed or deed of participation that has been registered under this Act has been lawfully amended, the issuer must ensure that there is delivered to the Registrar, as soon as practicable after the amendment, a copy of the instrument by which the amendment to the deed was made.
2: The Registrar must promptly register every copy of an instrument amending a deed that—
a: is delivered to him or her for registration under this section; and
b: if the Registrar so requires, is accompanied by a copy of the deed as amended.
3: However, the Registrar must refuse to register a copy of an instrument amending a deed if,—
a: in his or her opinion, the deed as amended contains any material matter that is not clearly legible; or
b: the prescribed amount payable on registration is not paid.
4: The Registrar must, on the registration of a copy of an instrument of amendment under this section, give a certificate of that registration (and the certificate is conclusive evidence that the instrument has been registered under this section).
47A: Registrar not required to consider certain matters
It is not the function of the Registrar, when acting under section 46 or 47
a: complies with this Act or the regulations; or
b: contains any misdescription or error.
28: New sections 54C to 54F inserted
The following sections are inserted after section 54B
54C: Documents, information, and other matters to be made publicly available
1: Every issuer of securities offered to the public for subscription must, at the prescribed times or on the occurrence of the prescribed events and otherwise in the prescribed manner, make publicly available the documents, information, and other matters that are required to be made publicly available by the regulations.
2: The documents, information, and other matters must, if required by the regulations, be presented, calculated, or prepared in accordance with the frameworks or methodologies specified in a notice issued by the FMA under section 54D
54D: FMA may specify frameworks or methodologies
1: The FMA may issue a notice that specifies frameworks or methodologies relating to the manner in which documents, information, or other matters that are to be made publicly available under section 54C
2: A notice issued by the FMA—
a: may specify different matters and requirements in respect of different kinds of securities or different classes of issuers:
b: must not specify matters and requirements that are inconsistent with regulations made under section 70(1)(cb)
3: A notice issued by the FMA—
a: is a regulation for the purposes of the Regulations (Disallowance) Act 1989 and must be presented to the House of Representatives under section 4 of that Act; but
b: is not a regulation for the purposes of the Acts and Regulations Publication Act 1989.
4: A notice issued by the FMA must, as soon as practicable after it is issued, 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.
5: A notification in the Gazette subsection (4)(b)
54E: Consultation
1: The FMA must not issue a notice under section 54D
2: A failure to comply with subsection (1)
54F: FMA may vary or revoke notice
1: The FMA may vary or revoke a notice issued under section 54D
2: Sections 54D(2) to (5) and 54E
29: Which persons are liable for misstatements
Section 56(3)
a: the advertisement was distributed or the prospectus was registered, as the case may be, without his or her knowledge or consent, and on becoming aware of its distribution or registration he or she promptly gave notice to the trustee, statutory supervisor, unit trustee, or superannuation trustee (if any) and the FMA that it was distributed or registered without his or her knowledge or consent; or
b: after the distribution of the advertisement or the registration of the prospectus, as the case may be, and before the securities were subscribed for, he or she, on becoming aware of any untrue statement in the advertisement or the prospectus, withdrew his or her consent to the distribution or the registration and promptly gave notice to the trustee, statutory supervisor, unit trustee, or superannuation trustee (if any) and the FMA of the withdrawal and of the reason for the withdrawal; or .
30: Which experts are liable for misstatements
Section 57(2)
b: after distribution of the advertisement or registered prospectus and before the securities were subscribed for, he or she, on becoming aware of the untrue statement or omission, withdrew his or her consent in writing and gave notice to the trustee, statutory supervisor, unit trustee, or superannuation trustee (if any) and the FMA of the withdrawal and of the reason for the withdrawal; or .
31: Time limit for applying for civil remedies
1: Section 57E(1) 2 years 3 years
2: Nothing in subsection (1)
a: enables an application for a pecuniary penalty order to be made that was barred before the commencement of this section; or
b: affects any proceedings commenced before the commencement of this section.
32: Criminal liability for misstatement in advertisement or registered prospectus
Section 58(3) 41(b) 41(1)(b)
33: Section 59A substituted
Section 59A
59A: Criminal liability for delivering prospectus or amendment for registration that does not comply with various requirements
1: The issuer of securities to which a prospectus relates commits an offence if, when the prospectus is delivered to the Registrar for registration under this Act,—
a: any of sections 39(1), 40, or 41(1)
b: the issuer knows, or ought reasonably to know, that any of sections 39(1), 40, or 41(1)
2: The issuer of securities to which a registered prospectus relates commits an offence if—
a: an instrument to amend the prospectus is delivered to the Registrar for registration under this Act that would result, if the amendment were made, in the prospectus failing to comply with section 39(1) or 40; and
b: when the instrument is delivered for registration under this Act, the issuer knows, or ought reasonably to know, that if the amendment in the instrument were made it would result in the prospectus failing to comply with section 39(1) or 40.
3: An issuer that commits an offence under subsection (1) or (2)
4: This section applies in respect of prospectuses and instruments of amendment delivered to the Registrar for registration under this Act on or after the commencement of this section.
34: Other offences
1: Section 60(1)(c)
2: Section 60(1)(d) 43B(1), 35,
3: Section 60(2)
a: inserting 43D(1), 37(4),
b: omitting 54A, and 54B and 54A to 54C
35: When Court may make management banning orders
1: Section 60A(1)(a) any of sections 58, 59, or 59A section 58 or 59
2: Section 60A(1)
ab: A has been convicted of an offence against section 51 or 61 Financial Markets Authority Act 2011 .
36: Persons automatically banned from management
1: Section 60E
1: This section applies to a person if—
a: the person has been convicted of an offence against section 58 of this Act or section 51 or 61 Financial Markets Authority Act 2011
b: a pecuniary penalty order has been made against the person under this Act.
2: Section 60E
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.
37: When Court may prohibit payment or transfer of money, securities, or other property
1: Section 60G
1: This section applies if—
a: an investigation is being carried out under the Financial Markets Authority Act 2011 in relation to an act or omission by a person that—
i: constitutes or may constitute a contravention of this Act; or
ii: constitutes or may constitute a contravention of any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
iii: may result in a prosecution or civil proceedings of the kind referred to in any of paragraphs (b) to (d) being begun against the person; or
b: a prosecution has begun against a person for a contravention of—
i: this Act; or
ii: any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
c: civil proceedings have begun against a person under, or in respect of,—
i: this Act; or
ii: any other financial markets legislation in connection with an offer of securities to the public or securities offered to the public; or
d: civil proceedings have begun against a person, being proceedings that, in connection with an offer of securities to the public or securities offered to the public, seek damages or other relief for fraud, negligence, default, breach of duty, or other misconduct.
2: Section 60G(3) civil proceedings financial markets legislation Financial Markets Authority Act 2011 .
3: Section 60G(1)
a: a contravention, fraud, negligence, default, breach of duty, or other misconduct regardless of whether it was committed before or after the commencement of this section; and
b: a prosecution or proceeding regardless of whether it begins before or after the commencement of this section.
38: What orders may be made
1: Section 60H(1)
ga: an order—
i: removing a person from being a manager of a scheme to which the investigation, prosecution, or proceedings referred to in section 60G(1) relates; and
ii: appointing another person as the manager of the scheme (with any powers that the court orders): .
2: Section 60H(1)(ga)
a: a contravention, fraud, negligence, default, breach of duty, or other misconduct regardless of whether it was committed before or after the commencement of this section; and
b: a prosecution or proceeding regardless of whether it begins before or after the commencement of this section.
39: New sections 65G and 65H inserted
The following sections are inserted after section 65F
65G: 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 38B (which relates to the prohibition of advertisements):
b: section 43F
c: section 43G
d: section 44A (which relates to delayed allotment orders):
e: section 44AE (which relates to prohibition orders):
f: section 44B (which relates to the FMA's powers in respect of contributory mortgages).
65H: Power of Registrar to delegate
1: The Registrar may delegate to any person, either generally or particularly, any of the Registrar's functions, duties, and powers under this Act except the power of delegation.
2: A delegation—
a: must be in writing; and
b: may be made subject to any restrictions and conditions the Registrar thinks fit; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a function, duty, or power by the Registrar.
3: A person to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
4: A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
40: Section 66 repealed
2013-07-01 Securities Act 1978 see section 2(2); section 40 to come into force by OIC, but if not, then comes into force on 1 July 2013 (see section 2(3)) Section 40 repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
41: Part 3 repealed
Part 3
42: Heading to Part 4 amended
The heading to Part 4 and exemptions
43: Regulations and Orders in Council
1: Section 70(1)
cb: prescribing, in respect of securities offered to the public, the documents, information, and other matters that must be made publicly available under section 54C .
2: 2013-07-01 Securities Act 1978 see section 2(2); section 43(2) to come into force by OIC, but if not, then comes into force on 1 July 2013 (see section 2(3)) Section 43(2) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
44: New section 70AAA inserted
The following section is inserted after section 70
70AAA: Regulations relating to exemptions under section 5(1)
1: The Governor-General may, by Order in Council, on the recommendation of the Minister in accordance with subsection (2)
a: prescribing circumstances in which any exemption under section 5(1) does not apply:
b: prescribing additional requirements that must be satisfied before any exemption under section 5(1) may apply:
c: prescribing transitional and savings provisions in connection with any regulations made under paragraph (a) or (b)
2: The Minister must, before making a recommendation under subsection (1)
a: consult with the FMA; and
b: be satisfied that the regulations are needed in order to prevent an exemption in section 5(1) from applying in inappropriate circumstances, having regard to whether the exemption may, in relation to securities of a particular kind, cause significant detriment to subscribers for those securities who are members of the public in New Zealand.
45: Fees and charges
1: Section 70A(1)(b) a memorandum of amendments to an instrument that amends
2: Section 70A(1) ; and
c: prescribing the amount to be paid on the registration of any other information or document under this Act and different amounts may be prescribed in respect of different amounts of securities being offered, different kinds of securities, or different classes of issuers or offerees:
d: requiring the Registrar to provide to the FMA a portion of any amounts paid on the registration of a prospectus, trust deed, deed of participation, or an instrument that amends any of those kinds of documents.
3: Section 70A
1A: Regulations made under subsection (1) may prescribe amounts to be paid on the registration of a prospectus, trust deed, deed of participation, or an instrument that amends any of those kinds of documents on the basis that those amounts recover (in whole or in part) the costs of the FMA in performing or exercising functions, powers, or duties under sections 43C to 43L
46: New sections 70B to 70D inserted
The following sections are inserted after section 70A
70B: FMA may grant exemptions
1: The FMA may, on the terms and conditions (if any) that it thinks fit, exempt any person or class of persons or any transaction or class of transactions from compliance with any provision or provisions of—
a: Part 2; or
b: any regulations made under section 70(1).
2: The FMA must not grant an exemption under this section unless it is satisfied that—
a: the exemption would not cause significant detriment to subscribers for the securities to which the exemption relates who are members of the public in New Zealand; and
b: the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.
3: Nothing in Part 5 limits subsection (1)
70C: Status and publication of exemptions
1: An exemption granted under section 70B
a: is a regulation for the purposes of the Regulations (Disallowance) Act 1989; and
b: must be presented to the House of Representatives under section 4 of that Act.
2: A class exemption (but not any other exemption granted under section 70B
3: An exemption granted under section 70B
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 subsection (3)(b)
5: The FMA's reasons for granting an exemption under section 70B
6: In this section, class exemption
a: means an exemption granted under section 70B
b: does not include an exemption granted under section 70B
i: a particular person or transaction; or
ii: persons associated with, or transactions involving, a particular entity.
70D: Variation or revocation of exemptions
1: The FMA may vary or revoke an exemption granted under section 70B
2: Sections 70B(2) and 70C
47: Matters that must be stated in regulations implementing application regime
Section 79(1)
d: whether or not, or the extent to which, exemptions from those provisions granted by the FMA under section 70B .
48: Schedule 1 repealed
Schedule 1 Transitional provisions
49: Registration of prospectus continues
1: If a prospectus was registered under the principal Act before the commencement of this subsection (or is registered in accordance with section 53
a: the prospectus must continue to be treated as being a registered prospectus under the principal Act
b: the principal Act section 42
c: every memorandum of amendments to the prospectus registered under the principal Act section 53
2: However,—
a: subsection (1) does not apply if, before the commencement of this subsection, the registration of the prospectus has been cancelled; and
b: sections 43B to 43E
c: sections 43B and 43C
3:
4:
5:
6: 2013-07-01 Securities Act 1978 see section 2(2); section 49(3) to (6) to come into force by OIC, but if not, then comes into force on 1 July 2013 (see section 2(3)) Section 49(3) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013 Section 49(4) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013 Section 49(5) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013 Section 49(6) repealed 14 September 2013 section 4(2) Financial Markets (Repeals and Amendments) Act 2013
50: Regulations for purposes of section 49
1: The Governor-General may, by Order in Council, on the recommendation of the Minister in accordance with subsection (2), make regulations prescribing—
a: information and documents for the purposes of section 49(3)
b: the manner of supplying that information and those documents to the Registrar; and
c: information and documents for the purposes of section 49(4)(b)
2: The Minister must consult with the FMA before making a recommendation under subsection (1).
3: Different matters may be prescribed under subsection (1) in respect of different kinds of securities or different classes of issuers.
51: FMA may perform functions formerly performed by Registrar of Companies in relation to registration of prospectuses
For the purpose of effectively managing the transition relating to the amendments in sections 20 21 Act
52: Registration of deeds continues
If a trust deed or deed of participation was registered under the principal Act section 53
a: the deed must continue to be treated as being a deed that is registered under the principal Act
b: the principal Act section 46
c: every instrument of amendments to the deed registered under the principal Act section 53
53: Prospectuses, amendments, and deeds delivered but not yet registered must be dealt with under old law
1: If, before the commencement of this section,—
a: a prospectus is delivered for registration under the principal Act section 42 section 21
b: a memorandum of amendments is delivered for registration under section 43 section 21
c: a copy of a trust deed or deed of participation is delivered for registration under section 46 section 27
d: an instrument of amendments is delivered for registration under section 47 section 27
2: In subsection (1), Registrar section 2(1) section 5(2)
54: Exemptions continue in force
1: This section applies to every exemption granted under section 5(5)
2: The exemption—
a: continues in force as if it were granted under section 70B
b: may be amended or revoked as if granted under that section.