Subpart 3—FMA’s designation power

562 FMA’s designation power

(1)

The FMA may—

(a)

declare that a security that would not otherwise be a financial product is a financial product of a particular kind:

(b)

declare that a financial product is, or is to become, a financial product of a particular kind (whether or not it was previously a financial product of a different kind):

Example

A share is normally an equity security.

However, a particular type of share may have terms that mean that, in substance, the share is similar to a debt security.

The FMA may declare that a share of that kind is a debt security.

(c)

declare that a security that would otherwise be a financial product of a particular kind is not a financial product:

(d)

declare that an offer of financial products that would not otherwise require disclosure under Part 3 because of an exclusion under Part 1 of Schedule 1 does require disclosure under Part 3:

Example

A small offer is generally excluded from requiring disclosure (see clause 12 of Schedule 1).

However, an offer of a particular kind may involve significant risks for investors that may otherwise be undisclosed to investors.

The FMA may declare that disclosure under Part 3 is required despite the exclusion (and, accordingly, the offer is a regulated offer).

(e)

declare that an offer of financial products for sale that would not otherwise require disclosure under Part 3 does require disclosure under Part 3 (see section 563(1)(c)):

Example

Offers of financial products for sale generally require disclosure only in limited circumstances (see Part 2 of Schedule 1).

However, an issuer could structure an offer with a view to circumventing, evading, or defeating the disclosure provisions of this Act.

The FMA may declare that disclosure of the offer under Part 3 is required despite the fact that the provisions in Part 2 of Schedule 1 do not apply.

(f)

declare, in relation to a managed investment product or if a declaration is made under paragraph (a) or (b) declaring that a security or financial product is a managed investment product, that a scheme is, or is to become, a managed investment scheme in relation to that managed investment product:

(g)

if a declaration is made under paragraph (a), (b), or (f), declare that a person or class of person is, or is to become, the issuer or offeror of the relevant financial products:

(ga)

declare that a person or class of person that would otherwise be a wholesale investor or a wholesale client is, or is to become, a retail investor or a retail client:

(gb)

declare that advice—

(i)

that would not otherwise be financial advice is financial advice; or

(ii)

that would otherwise be financial advice is not financial advice; or

(iii)

that would not otherwise be regulated financial advice is regulated financial advice; or

(iv)

that would otherwise be regulated financial advice is not regulated financial advice:

(gc)

declare that a service—

(i)

that would not otherwise be a financial advice service is a financial advice service; or

(ii)

that would otherwise be a financial advice service is not a financial advice service:

(h)

declare a person, service, or conduct to be not exempt under any exemption that would otherwise apply under any of the following provisions (and accordingly the licensing requirement under this Act applies):

(i)

declare a person, service, or conduct to be not exempt under any exemption or exclusion that would otherwise apply under section 238(1)(a) to (h) (in relation to either subpart 5 or 6 of Part 5), or under section 285, 287, or 309.

(2)

A declaration may specify terms and conditions relating to—

(a)

the circumstances in which the declaration applies, including (without limitation) by reference to any person or class of persons or any transaction or class of transactions:

(b)

transitional matters.

(3)

Nothing in this section prevents the FMA from granting an exemption under subpart 2 that applies to an offer, a financial product, or any other matter that is the subject of a declaration under this section.

Example

The FMA declares that a particular type of share (which would otherwise be an equity security) is a debt security.

However, some of the regulatory requirements that relate to debt securities are inappropriate in respect of these shares.

Accordingly, the FMA grants an exemption (on terms and conditions) from those requirements in order to customise the regulatory requirements that will apply.

(4)

The provisions of this Act apply subject to a declaration under this subpart.

(5)

Subpart 5 (general provisions relating to certain FMA instruments) applies to a declaration under this section.

Section 562(1)(g): amended, on 9 April 2019, by section 51(1) of the Financial Services Legislation Amendment Act 2019 (2019 No 8).

Section 562(1)(ga): inserted, on 9 April 2019, by section 51(2) of the Financial Services Legislation Amendment Act 2019 (2019 No 8).

Section 562(1)(gb): inserted, on 9 April 2019, by section 51(2) of the Financial Services Legislation Amendment Act 2019 (2019 No 8).

Section 562(1)(gc): inserted, on 9 April 2019, by section 51(2) of the Financial Services Legislation Amendment Act 2019 (2019 No 8).

Section 562(1)(h): replaced, on 9 April 2019, by section 51(2) of the Financial Services Legislation Amendment Act 2019 (2019 No 8).