Reprint as at 1 December 2014

KiwiSaver Act 2006

Public Act2006 No 40
Date of assent6 September 2006
Commencementsee section 2

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Inland Revenue Department, the Ministry of Business, Innovation, and Employment, and the Treasury.


Contents

1 Title

2 Commencement

Part 1
Preliminary provisions

3 Purpose

4 Interpretation

5 Meaning of provider

6 Application

7 Act binds the Crown

8 Outline

Part 2
Membership of overall KiwiSaver scheme

Subpart 1Becoming members of overall KiwiSaver scheme

9 Outline of how people become members of overall KiwiSaver scheme

Automatic enrolment rules

10 Who automatic enrolment rules apply to

11 Meaning of new employment and secondee

12 Temporary employment

13 Employment in schools [Repealed]

14 Other situations when automatic enrolment rules do not apply

15 Effect of automatic enrolment

16 Time limit for opting out

17 How to opt out

18 Extension of opt-out period

19 Commissioner must give notice to employer of opting out

20 Effect of opting out

21 Opt-out only applies to employment that triggered automatic enrolment rules

Notice requirements for employees and employers

22 Employees giving information to employers

23 Employers must give information to Commissioner

23A PAYE intermediaries

Exempt employers

[Repealed]

24 Purpose of being exempt employer [Repealed]

25 Eligibility to be exempt employer [Repealed]

26 How 4% minimum amount may be calculated for exempt employer defined contribution schemes [Repealed]

27 Eligibility of employers who provide access to more than 1 scheme [Repealed]

28 Eligibility of employers who have schemes established under master trusts [Repealed]

29 How to apply to be exempt employer [Repealed]

30 How applications to be exempt employer must be dealt with [Repealed]

31 Revocation of exempt employer approval [Repealed]

32 FMA must give notice to Commissioner of exempt employers [Repealed]

Opting in

33 Certain persons may opt in

34 Opting in by person 18 years or more

35 Opting in by persons under 18

36 Effect of opting in by employees

37 Effect of opting in by persons other than employees

Information about people who contract directly with providers

38 Providers must give notice to Commissioner if they contract directly with members

39 Commissioner must give notice to employer if provider gives notice that employee has opted in under section 38

Information about overall KiwiSaver scheme that must be provided

40 Commissioner must supply information pack

41 What information pack must contain

42 Employer must supply information pack to certain employees

43 Employer must also supply product disclosure statement for employer’s chosen KiwiSaver scheme (if any)

Subpart 2Allocation of people to KiwiSaver schemes

44 Outline of how people are allocated to KiwiSaver schemes under subpart

People may choose their own KiwiSaver scheme

45 People may choose their own KiwiSaver scheme

Employer choice of KiwiSaver scheme

46 Employer may choose scheme for employees

47 When employer choice of KiwiSaver scheme is effective

48 Effect of employer choice of KiwiSaver scheme

49 Effect on existing members of change, etc, in employer chosen scheme

Default KiwiSaver schemes

50 Commissioner provisionally allocates certain people to default KiwiSaver schemes and sends product disclosure statement

51 Completion of allocation to default KiwiSaver scheme if person does not choose his or her own KiwiSaver scheme

52 Effect of completion of allocation

Miscellaneous provisions

53 Person may be member of only 1 KiwiSaver scheme at any one time

Subpart 3Transfers between KiwiSaver schemes and between complying superannuation fund and KiwiSaver scheme

54 Application

Voluntary transfers

55 People may transfer between KiwiSaver schemes and between complying superannuation fund and KiwiSaver scheme

56 Notification of transfers and requirement to transfer funds and information

Involuntary transfers

57 Involuntary transfers

58 Information if employee ceases to be eligible to be member of employer’s chosen KiwiSaver scheme

59 Commissioner must send information to involuntary transferees

Subpart 4Initial and confirmed back-dated validation of invalid membership

59A When this subpart applies

59B Initial back-dated validation

59C Confirmed back-dated validation

59D What happens when initial back-dated validation ends, with no confirmed back-dated validation?

Part 3
KiwiSaver contributions

Subpart 1Deductions of contributions from salary or wages

Payments of salary or wages to which deduction rules apply

60 Application of subpart

61 Commissioner may give notice

62 When subpart does not apply

63 Part also applies to PAYE intermediaries

63A How subpart applies to private domestic workers

Deduction rules

64 Contribution rate

65 Contribution rates may be changed by Order in Council

66 Obligation to make deductions: general rule

66A Obligation to make deductions: transitional rule [Repealed]

67 PAYE rules apply to deductions

68 Money paid for things other than retirement benefits does not count as contribution under this Act

69 Unremitted deductions made by employers

70 Unexplained remittances of deductions received from employers

71 Time at which unexplained remittances deemed to be received

Subpart 2Miscellaneous provisions relating to contributions

Inland Revenue KiwiSaver Holding Account

72 Inland Revenue KiwiSaver Holding Account

73 Deductions entered in and paid out of holding account

74 Other contributions entered in and paid out of holding account

75 Initial contributions stay in holding account for 3 months

76 Employer contributions may stay in holding account until deducted contributions paid

77 Small amounts of contributions may be held until big enough to be on-paid

78 Treatment of unremitted deductions in holding account

79 Information that Commissioner must supply to providers when paying contributions

80 Refund by Commissioner of amounts paid in excess of required amount of deduction or if employee opts out

81 Refund by provider of amounts paid in excess of required amount of contribution

81B Residual refunds

82 Trustee investment rules do not apply to contributions in holding account

83 Unclaimed money held by Commissioner

Interest on contributions

84 Interest on money in holding account

85 Time when contributions treated as received for interest purposes

86 Interest rate

87 Amount of interest payable

88 How and when interest is paid on on-payments

89 How and when interest is paid on refunds

90 Position if Commissioner’s paying rate changes

91 Overpaid interest

Subpart 3Contributions other than deductions from salary or wages

92 Application of this subpart

92A How subpart applies to private domestic workers

93 Employer contributions paid via Commissioner

94 Employer must give notice that employer contributions to be paid via Commissioner [Repealed]

95 Contributions from persons other than employers may be paid via Commissioner

96 What Commissioner must do with contributions received under this subpart

97 Commissioner must give notice if employer contributions not remitted

98 Short payments by employers if not enough money remitted to Commissioner to cover all of employees’ deductions and employer contributions

98A Quantifying short payments for the purposes of Income Tax Act 2007 and Tax Administration Act 1994

99 Short payments if not enough employer contribution remitted to cover all employees

100 Refunds of employer contribution by Commissioner if employee opts out

101 Refunds of employer contribution by provider

Subpart 3ACompulsory employer contributions to KiwiSaver schemes and complying superannuation funds

101A General

101B Compulsory contributions must be paid on top of gross salary or wages except to extent that parties otherwise agree after 13 December 2007

101C Employee’s requirements

101D Compulsory employer contribution amount: general rule

101E Payment: allocation between schemes and funds

101F Payment rules: employers

101FB Grace periods: employers

101FC De minimis: other contributions and hybrid schemes amount

101G Rules: providers

Complying superannuation funds

[Repealed]

101H Failure to pay: provider notice [Repealed]

101I Failure to pay: FMA's duties [Repealed]

101J Failure to pay: Commissioner [Repealed]

101K Recovered amounts [Repealed]

Subpart 4Contributions holiday

Applications for contributions holiday

102 Who may apply for contributions holiday

103 How to apply for contributions holiday

104 Granting of contributions holiday

105 Commissioner must give notice of grant of contributions holiday

106 When deductions stop at start of contributions holiday

107 Employers to whom contributions holiday applies

108 Contributions holidays have 3-month minimum life

End of contributions holiday

109 Commissioner must give notice before contributions holiday ends

110 Commissioner must give notice to employer of end of contributions holiday

111 When deductions start at end of contributions holiday

Revocation and reinstatement of contributions holiday

112 Revocation and reinstatement of contributions holiday

112B Non-deduction notices

113 Refund of initial contributions

114 Refunds if employee loses, etc, contributions holiday notice

Part 4
Additional governance provisions

115 Overview of Part

Subpart 1Implied terms and other regulation of schemes

KiwiSaver scheme rules

116 KiwiSaver scheme rules are implied in trust deeds establishing KiwiSaver scheme

116A Requirements for restricted KiwiSaver schemes [Repealed]

116B Requirements for managers of KiwiSaver schemes [Repealed]

116C Duty of manager with respect to money received [Repealed]

116D Requirements for trustees of KiwiSaver schemes other than restricted schemes [Repealed]

116E Removal of trustees of KiwiSaver schemes other than restricted schemes [Repealed]

116F Manager and trustee must be independent [Repealed]

116G Investments and property of KiwiSaver schemes [Repealed]

116H Nomination of person [Repealed]

116I Appointment of nominee by nominated person [Repealed]

116J Trust deed or other instrument must not exempt trustees, managers, or investment managers from liability [Repealed]

116K Trustees of KiwiSaver schemes other than restricted schemes may apply to High Court for order relating to scheme [Repealed]

Provisions about unreasonable fees that apply to both KiwiSaver schemes and complying superannuation funds

117 Duty to give notice to FMA about fee increases

117A Restrictions on transactions [Repealed]

118 Exercise of functions by FMA about unreasonable fees

119 Powers of High Court in relation to unreasonable fees

119A Implied provision as to amendments reducing accrued benefits, etc [Repealed]

119B Application of sections 119C to 119I [Repealed]

119C Implied provision as to transfer of members, etc [Repealed]

119D Procedural requirements in case of certain transfers [Repealed]

119E When requirements of section 119D not met [Repealed]

119F Information required in case of transfer under section 119D [Repealed]

119G When FMA may approve section 119D transfers without consent of members [Repealed]

119H How approval under section 119G may be granted [Repealed]

119I FMA may exempt trustees and managers from requirement to obtain written consent of members [Repealed]

119J Application and enforcement of implied provisions [Repealed]

119K Prospective members' rights to information [Repealed]

119L Members' rights to information [Repealed]

Other implied terms

120 Terms relating to backdated validation implied into trust deeds of KiwiSaver schemes

121 Terms relating to members’ tax credits implied into trust deeds of KiwiSaver schemes and complying superannuation funds

122 Terms relating to compulsory employer contributions implied into trust deeds of KiwiSaver schemes and complying superannuation funds

123 Terms relating to lump sum payments by complying superannuation funds

Other regulation of schemes

124 Requirement for annual return

125 Unclaimed money held in KiwiSaver scheme

125A Requirement for annual personalised statement of contributions and accumulations for members [Repealed]

126 Restrictions on transactions for scheme with fewer than 20 members

127 Member’s interest in KiwiSaver scheme not assignable

128 Application of Financial Transactions Reporting Act 1996 to default allocation of members to KiwiSaver schemes

128A Terms relating to members’ tax credits implied into trust deed [Repealed]

128B Terms relating to back-dated validation implied into trust deed [Repealed]

128C Terms relating to lump sum payments by complying superannuation funds [Repealed]

128D Terms relating to compulsory employer contributions implied into trust deed [Repealed]

128E Provisions implied in trust deeds by regulations [Repealed]

129 Product disclosure statements must contain responsible investment statement

129A Implied provision as to alterations to scheme [Repealed]

129B Implied provision as to reversion of scheme assets to employer [Repealed]

Interface with securities law

130 Application of Financial Markets Conduct Act 2013

131 Certain sections of Financial Markets Conduct Act 2013 modified in relation to KiwiSaver scheme

Subpart 2Default KiwiSaver schemes

132 Appointment of default providers

133 Provisions of instrument of appointment to prevail over provisions of trust deed

134 Effect of appointment under section 132

135 Appointment must be notified

136 Power of High Court to act in respect of terms and conditions of appointment as default KiwiSaver scheme and regulations relating to default KiwiSaver schemes

137 Revocations, etc, of instruments of appointment

138 Duration of obligations as default provider after terminating event

Subpart 3Complying superannuation funds

139 Outline of subpart

140 Failure to pay: provider notice

141 Failure to pay: FMA's duties

142 Failure to pay: Commissioner

143 Recovered amounts

144 Reduction of scheme insurance upon transfer out of complying superannuation fund

145 Revocation of approval of complying superannuation funds

Subpart 4Exempt employers

146 Effect of being exempt employer and outline of subpart

147 Eligibility to continue to be exempt employer

148 How 4% minimum amount may be calculated for exempt employer defined contribution schemes

149 Exempt employers who provide access to more than 1 scheme

150 Exempt employers who have schemes established under master trusts

151 Employers may apply to succeed to former employer's exempt employer status

152 How applications to succeed to former employer's exempt employer status must be dealt with

153 Revocation of exempt employer approval

154 FMA must give notice to Commissioner of exempt employers

155 Register of exempt employers

Subpart 5Miscellaneous

156 Right of appeal against certain decisions of FMA

157 Sharing of information and documents with Commissioner for purpose of administering KiwiSaver schemes

158 Conditions that may be imposed on providing information, documents, or evidence to Commissioner

159 Annual report by FMA

160 Offence to supply false or misleading information, etc

161 No Crown guarantee of KiwiSaver schemes or products

162 Factual description of, or transmission of information about, KiwiSaver scheme not financial adviser service

163 Amendments to register [Repealed]

164 Duty to notify changes to FMA [Repealed]

165 Form of notice under section 164 [Repealed]

166 This subpart overrides provisions to contrary in trust deed [Repealed]

167 Meaning of winding up in relation to KiwiSaver scheme established under umbrella trust [Repealed]

168 Cancellation of registration and order to wind up KiwiSaver scheme [Repealed]

168A Scheme may cease to be restricted scheme [Repealed]

169 Powers of FMA in event of scheme operating in contravention of this Act, etc [Repealed]

170 FMA must remove scheme from register on cancellation of registration [Repealed]

171 Implied terms continue to be implied on cancellation of registration [Repealed]

172 Receiver or liquidator to designate or appoint independent trustee if required [Repealed]

173 Initial steps in winding up of KiwiSaver scheme [Repealed]

174 Winding up report [Repealed]

174A Registration deemed to be cancelled when assets distributed [Repealed]

175 Time for doing certain things may be extended [Repealed]

176 Member’s right to information [Repealed]

Subpart 6Default KiwiSaver schemes

[Repealed]

177 Appointment of default providers [Repealed]

178 Provisions of instrument of appointment to prevail over provisions of trust deed [Repealed]

179 Effect of appointment under section 177 [Repealed]

180 Appointment must be notified to FMA and Commissioner [Repealed]

181 Availability of instrument of appointment [Repealed]

182 Minister not required to appoint maximum number of persons [Repealed]

183 Power of High Court to act in respect of terms and conditions of appointment as default KiwiSaver scheme and regulations relating to default KiwiSaver schemes [Repealed]

184 Revocations, etc, of instruments of appointment [Repealed]

185 Duration of obligations as default provider after terminating event [Repealed]

Subpart 7Miscellaneous

[Repealed]

186 Right of appeal against certain decisions of FMA [Repealed]

187 Power of Government Actuary to delegate [Repealed]

188 Sharing of information and documents with Commissioner for purpose of administering KiwiSaver schemes [Repealed]

189 Conditions that may be imposed on providing information, documents, or evidence to Commissioner [Repealed]

189B Duty to give notice to FMA about fee increases [Repealed]

189C Powers of High Court in relation to unreasonable fees [Repealed]

190 Secrecy [Repealed]

191 Duty of certain persons to disclose information to FMA [Repealed]

192 Protection of administration managers, investment managers, and auditors [Repealed]

193 Personal liability [Repealed]

194 Annual report by FMA [Repealed]

195 Unclaimed money held by trustees of KiwiSaver scheme [Repealed]

196 Member’s interest in KiwiSaver scheme not assignable [Repealed]

197 Offence to fail to provide information under this Part [Repealed]

198 Other offences under this Part [Repealed]

199 Criminal penalties for offences under this Part [Repealed]

200 FMA may decline to take action if fees not paid [Repealed]

201 Trustees not in breach of obligations, etc [Repealed]

202 Application of section 13G of Trustee Act 1956 if power of investment exercised in relation to member allocated to scheme under sections 50 to 52 [Repealed]

203 General application of Financial Transactions Reporting Act 1996 [Repealed]

204 Application of Financial Transactions Reporting Act 1996 to default allocation of members to KiwiSaver schemes [Repealed]

Part 5
General provisions

205 No Crown guarantee of KiwiSaver schemes or products [Repealed]

205A Investment statements must contain responsible investment statement [Repealed]

206 Factual description of, or transmission of information about, KiwiSaver scheme not financial adviser service [Repealed]

207 Unique identifiers

208 Information held by Commissioner in respect of person who has opted out or who should not have been allocated to overall KiwiSaver scheme

Interface with securities law

[Repealed]

209 Application of Securities Act 1978 [Repealed]

210 Certain sections of Securities Act 1978 modified in relation to KiwiSaver scheme [Repealed]

211 Duty of Commissioner under section 50 modified in certain cases in which section 131 applies

Disputes under Parts 2 and 3

212 Persons may request reconsideration of certain decisions of Commissioner

213 Reconsideration of other decisions

Penalties

214 Application of section 215

215 Penalty for employer to fail to provide information

216 Penalty for employer to fail or incorrectly make deductions, or to short pay compulsory employer contributions [Repealed]

Giving of notices

217 Giving of notices by and to Commissioner

218 Giving of notices to other persons

219 Consent to electronic transactions

220 Special rules about giving of product disclosure statements

220B Information sharing

Miscellaneous provisions

221 Refunds made by direct credit to bank account

222 Role of Commissioner under this Act

223 Use of information by Commissioner obtained under this Act and other Inland Revenue Acts

224 Administration of Act

225 Fee subsidies [Repealed]

226 Crown contribution: kick-start contributions

227 Status of Crown contribution for tax purposes

228 Regulations

229 Regulations relating to mortgage diversion facility

230 Regulations relating to default KiwiSaver providers

230A Regulations relating to compulsory employer contributions

231 Amendments to other Acts [Repealed]

232 Transitional provision requiring all KiwiSaver contributions to be paid to Commissioner in first 3 months [Repealed]

233 Transitional provision: pre-1 July 2007 securities law documentation [Repealed]

234 Protection from non-compliance: Taxation (KiwiSaver) Act 2007 [Repealed]

235 Protection from non-compliance: Taxation (Urgent Measures and Annual Rates) Act 2008 [Repealed]

236 Protection from non-compliance: Taxation (Budget Tax Measures) Act 2009 [Repealed]

237 Protection from non-compliance: Taxation (Annual Rates and Budget Measures) Act 2011 [Repealed]

238 Protection from non-compliance: Taxation (Annual Rates, Returns Filing, and Remedial Matters) Act 2012

Schedule 1
KiwiSaver scheme rules

Schedule 2
Matters to be specified in application for registration or registration proposal

[Repealed]

Schedule 3
Amendments to other Acts

[Repealed]

Schedule 4
Transitional rates for employers and employees

[Repealed]

KiwiSaver Amendment Act 2011

Reprint notes