Financial Market Infrastructures Bill

Hon Grant Robertson

Financial Market Infrastructures Bill

Government Bill

212—2

Contents

Commentary
Key
1Title
2Commencement
3Purposes
4Overview of this Act
5Interpretation
6Transitional, savings, and related provisions
7Act binds the Crown
8Regulator
9Requirement to act jointly
10Cases where requirement to act jointly does not apply
11RBNZ and FMA working together
12General provisions about regulator’s functions and Ministers’ functions
13Purposes and principles of exercising powers under this Act (other than Part 4)
14Regulator’s power to require information
15Offence for failure to give information
16Regulator’s power to require information to be reviewed
17Offence for failure to obtain review
18Regulator’s power to require independent report
19Offence for failure to give or publish report
20Designation of FMIs by Minister
21Recommendations by regulator
22Restrictions on recommendations
23Matters to which regulator may have regard for purposes of recommendations
24Matters that regulator must take into account for purposes of deciding if FMI is systemically important
25Application for issue, revocation, or amendment of designation notice
26Process where regulator makes recommendation on own initiative
27Pecuniary penalty for failure to publish proposal
28Meaning of systemically important
29Content and publication of designation notice
30Offence for wrongly holding out system as designated FMI, etc
31Regulator may issue standards for designated FMIs
32Procedure for issuing standards
33Publication of standards
34Pecuniary penalty for contravention of standard
35Subject matter of standards
36Designated FMI’s rules
37Operators must publish copy of rules of designated FMI
38Pecuniary penalty for failure to publish copy of rules
39Time rule change comes into effect
40Operator of designated FMI may apply for approval of rule change
41Regulator may require change to designated FMI’s rules
42Regulator’s decision to approve rule change required under section 41
43Regulator’s decision not to approve rule change required under section 41
44Offence for contravention of section 41 or 43
45Changes to rules of designated FMIs that are overseas FMIs
46Pecuniary penalty for failure to give rule change instrument to regulator
47Publication of rule changes
48Designated FMIs to have FMI contingency plans
49Operator must notify activation of FMI contingency plan
50Regulator’s power to review FMI contingency plans, etc
51Regulator’s powers in relation to FMI contingency plans
52Regulator’s decision on change submitted by operator
53Offence for contravention of sections 50 to 52
54Application of this subpart
55Designated FMI’s rules relating to settlements, etc, are valid and enforceable
56Settlements must not be reversed, etc
57Effect of insolvency event on settlement
58Netting
59Underlying transactions, etc
60Interrelationships with other enactments
61Transfer of personal property in accordance with designated FMI’s rules effective
62Operators to be notified of insolvency event
63Regulator may appoint investigator
64Investigator’s powers
65Application for warrant
66Offences relating to investigations
67Regulator may require operator to take action in relation to contravention of this Act
68Approval, amendment, or rejection of remedial plan
69Other provisions relating to remedial notices and plans
70Offence for contravention of remedial notice, failure to give amended remedial plan, or failure to take steps to comply with remedial plan
71Regulator may accept voluntary undertaking
72Consequences of accepting undertaking
73Undertakings that include payment of money
74Operator may withdraw or amend undertaking
75Enforcement of voluntary undertakings
76Court must take into account certain matters
77Application of this Part
78Purposes for which powers under this Part may be exercised
78APrinciples for exercising powers under this Part
79Application of this subpart
80Directions to operator
81Giving and complying with direction does not place person in contravention, etc
82Power to make direction notice confidential
82ADisclosure with regulator’s consent
83Offences for contravention of direction notice or confidentiality notice
84Direction to participant to comply with FMI’s rules
85Offence for contravention of direction notice
86Removal of director
87Process if regulator proposes to exercise power to remove director
88How power to remove director is exercised
89Power to make operator subject to statutory management
90Regulator’s recommendation under section 89
91Statutory management of operator whose home jurisdiction is not New Zealand
92Purposes of statutory management
93General duties of statutory manager
94Principles for statutory management
95Other duties of statutory manager
96Advisory committee
97Terminating appointment, or resignation, of member of advisory committee
98Application of FMI’s rules
99Statutory manager may decide that provision of rules is not to apply
100Statutory manager must pay calls, debts, and claims arising under FMI’s rules
101Purpose of new operator schemes
102Making of new operator scheme
103Consent required to make new operating scheme
104Effect of new operating scheme
104ATransfer of property subject to security
105Registers
106Moratorium
107Power of statutory manager to sell business undertaking of operator under statutory management, etc
108Ministers’ approval
109Body corporate formed and registered also subject to statutory management
110Applicable provisions of Corporations (Investigation and Management) Act 1989
111Modifications relating to power to pay creditors and compromise claims
112Other modifications to Corporations (Investigation and Management) Act 1989
113Offences relating to statutory management
114Termination of statutory management
115Effect of termination of statutory management
116Termination or resignation of statutory manager’s appointment
117Appointment of new statutory manager
118Obligations incurred by statutory manager
119Statutory management does not place any person in contravention of enactment, etc
120Continuation of statutory management of company restored to New Zealand register
121Person who exercises powers under subpart not director of operator under statutory management
121AIndemnity
122Certain rights relating to derivatives may be exercised after stay
123Regulator may reduce or extend stay on exercise of rights
124Penalties for offences
125Defence for certain offences
126Time for filing charging documents
127Pecuniary penalty orders
128Maximum amount of penalty
129Considerations for court
130Defences in pecuniary penalty proceeding for operator that contravenes standard
131Defence for other operator that is involved in contravention
132Rules of civil procedure and civil standard of proof apply to civil liability
133Court must order that recovery from pecuniary penalty be applied to regulator’s actual costs
134Liability of directors
135State of mind of directors, employees, or agents attributed to body corporate or other principal
136Person not liable for fine and pecuniary penalty for same conduct
137False or misleading information given for purposes of Act
138Disclosure of information between RBNZ and FMA
139Disclosure of information by RBNZ or FMA to other persons
140Offence for unauthorised disclosure
141Conditions relating to disclosure of information
142Restrictions on further disclosure of information
143Offence for unauthorised disclosure or use
144Effect of proceedings on exercise of powers to require information, etc
145Decision that exercise of powers is unlawful
146Applications, submissions, and other information given to regulator or other person in accordance with regulator’s requirement
147Revocation or amendment of requirements imposed, or directions given, by notice
148Publication requirements
149Interaction with Legislation Act 2012
150Power to make regulations by Order in Council
151Directions to regulator
152Limit on FMA’s powers under other enactments
153Protection from liability
154Conduct of directors, employees, or agents attributed to body corporate or other principal
155Prohibition on indemnities or insurance for directors or employees of operators that are not New Zealand companies
156Exception to prohibition
157Giving of notices by regulator or investigator
158Giving notices to agent
159Consequential amendments to Acts and instruments
Legislative history

The Parliament of New Zealand enacts as follows: