These regulations are the KiwiSaver Regulations 2006.

These regulations come into force on 1 December 2006.

In these regulations, unless the context otherwise requires,—

The purpose of regulation 5 is to prescribe requirements for documents provided in each application for approval of an employer as an exempt employer under section 29 of the Act.

The documents provided in the application must—

• (a) include all supporting evidence that demonstrates the scheme complies with the rules in section 25 of the Act; and

• (b) contain, or have attached, a statement that provides cross-references, for each rule in section 25, to the relevant page or provisions of the supporting evidence that demonstrates compliance with that rule.

Regulations 8 and 9 provide for the annual return required under section 125 of the Act.

(1) The trustees of a KiwiSaver scheme must provide the annual return for the scheme to the FMA on or before 31 May 2008, and 31 May in each subsequent year.

(2) The annual return must relate to the 12-month period ending on the immediately preceding 31 March.

(1) The annual return must be—

• (a) for a KiwiSaver scheme that is not a default KiwiSaver scheme, in form 1 of Schedule 1; and

• (b) for a default KiwiSaver scheme, in form 2 of Schedule 1.

(2) The information contained in the annual return—

• (a) may be unaudited; and

• (b) if the scheme was registered as a KiwiSaver scheme for only part of the 12-month period to which the annual return relates, needs to be included only for that part; and

• (c) need not include information—

  • (i) about an identifiable individual; or

  • (ii) that is not in the possession or control of the trustees, the manager, or the administration manager of the scheme; or

  • (iii) that is not readily ascertainable from information that is in the possession or control of the trustees, the manager, or the administration manager.

(3) The annual return must have attached a certificate by the provider of the KiwiSaver scheme that the information contained in the annual return is correct to the best of the provider's knowledge and belief (subject to subclause (2)).

(1) Regulations 11 and 12 deal with the FMA's function under the Act and a court’s function under the KiwiSaver scheme rules of considering whether a KiwiSaver scheme complies with clause 2 of the KiwiSaver scheme rules (which requires fees not to be unreasonable) (the fees assessment).

(2) The purpose of these regulations is to prescribe a process for the FMA's fees assessment and the matters to which the FMA or a court must have regard in carrying out a fees assessment (see section 127 of the Act and clause 2 of the KiwiSaver scheme rules).

(3) Neither regulation 11 nor regulation 12 prevents the FMA or the court from considering any other matter that the FMA or the court considers relevant.

The FMA may follow the following process in making a fees assessment:

• (a) compare the relevant fee or fees in relation to a scheme (A fees) to fees charged in relation to other schemes or classes of schemes (whether or not KiwiSaver schemes) that the FMA considers comparable, having regard to the relevant matter in regulation 12(a); and

• (b) determine on that basis that—

  • (i) the A fees are not unreasonable; or

  • (ii) the A fees may be unreasonable; and

• (c) if the FMA determines that the A fees may be unreasonable, further assess the A fees having regard to all the relevant matters in regulation 12; and

• (d) determine on that basis whether or not the A fees are unreasonable.

The following matters are relevant to a fees assessment by the FMA or a court:

• (a) whether the relevant fee or fees in relation to the scheme are significantly higher than the fees charged in relation to other schemes or classes of schemes (whether or not KiwiSaver schemes) that the FMA or the court considers comparable; and

• (b) if the relevant fee or fees are significantly higher, whether or not differences in the following matters mean that it is reasonable for the fee or fees to be higher:

  • (i) the cost of the services to which the relevant fee or fees relate; and

  • (ii) the structure of the scheme; and

  • (iii) the number of members and the number of members actively contributing to the scheme; and

  • (iv) the value of the scheme assets at the commencement of the fees assessment and how those scheme assets are invested; and

  • (v) the employer contributions in respect of members and employer subsidisation of fees charged in relation to the scheme (if any); and

  • (vi) how the relevant fee or fees are charged and the basis on which the relevant fee or fees are calculated; and

  • (vii) other costs of the scheme; and

  • (viii) any other matter that the FMA or the court considers relevant.

The purpose of regulations 14 to 16 is to provide for operational matters and electronic compatibility between the Commissioner and providers by way of scheme provider agreements.

(1) Each provider must enter into a scheme provider agreement with the Commissioner that covers the matters set out in regulation 16 to the Commissioner’s satisfaction for the relevant scheme before registration of the scheme as a KiwiSaver scheme.

(2) This regulation does not mean that the scheme provider agreement is not freely and voluntarily entered into by the parties to the agreement.

(1) The Commissioner must, at least 6 months before a review date, give notice to a provider who is a party to a scheme provider agreement stating whether or not the Commissioner intends to review the agreement.

(2) If the Commissioner does not give a notice under subclause (1), no review is required under this regulation for that review date.

(3) If the Commissioner gives a notice under subclause (1) stating that a review is intended, the Commissioner must complete the review and give notice to the provider of his or her decisions under the review on or before the review date.

(4) In this regulation, review date is (unless made earlier or later under subclause (5)) the date that is—

• (a) 7 years after the registration of a scheme as a KiwiSaver scheme; and then

• (b) 7 years after the last review date.

(5) The review date may be—

• (a) made later if, at least 1 month before the review date that would otherwise apply under subclause (4), the Commissioner gives notice to the provider of the later review date; or

• (b) made earlier or later by agreement between the parties (but an earlier review date does not invalidate any notice already given under subclause (1)).

(6) Nothing in this regulation prevents either party reviewing the agreement either separately or together at any time.

Each scheme provider agreement must cover the following matters (without limiting other matters it may cover):

• (a) the electronic exchange of information and contributions between the Commissioner and the provider, including the technical interface requirements:

• (b) the refund of contribution overpayments:

• (c) the use and promotion of the KiwiSaver brand and KiwiSaver trademarks:

• (d) the use of information that is received by the provider from the Commissioner (for example, the tax file number) in the administration of the scheme.

(1) Section 204 of the Act exempts certain cases from section 6 of the Financial Transactions Reporting Act 1996, but requires the provider to make reasonable efforts to verify a person’s identity at the time the person becomes a member of a KiwiSaver scheme.

(2) The purpose of regulation 18 is to determine what must be treated as those reasonable efforts (without limiting what else might constitute those reasonable efforts).

(1) A provider makes reasonable efforts for the purposes of section 204(3)(a) of the Act as set out in the following table:

(2) A reference in the steps in subclause (1) to verifying identity means verifying that identity in the way that would be required under section 6 of the Financial Transactions Reporting Act 1996 if it were not for the exemption in section 204(2) of the Act.

(1) The fees set out in Schedule 2 must be paid to the FMA for the matters to which they relate.

(2) The fees are inclusive of goods and services tax.

(1) This regulation applies for a person if––

• (a) the person is an employee who is a member of a KiwiSaver scheme, and is subject to the automatic enrolment rules before 1 April 2009:

• (b) the person is an employee who is a member of a KiwiSaver scheme, and opts in under section 34(1)(b) of the Act before 1 April 2009:

• (c) a KiwiSaver scheme provider receives a valid application for membership for the person before 1 April 2009.

(2) The chief executive of the Department must pay a fee subsidy of $20 for the person on each of the dates for the person provided in subclause (3).

(3) For the person,––

• (a) if 1 or 3 fee subsidy instalments have been paid before 1 April 2009, the date for the purpose of subclause (2) is 6 months after the last fee subsidy instalment:

• (b) if no fee subsidy instalment has been paid before 1 April 2009, the dates for the purpose of subclause (2) are––

  • (i) the date on which the Crown contribution made under section 226 of the Act is payable in respect of the person; and

  • (ii) 6 months after the date described in subparagraph (i).

(4) Each payment of the fee subsidy must be paid to the provider of the person's KiwiSaver scheme.

(5) The provider must use the contribution allocation for the person to credit each payment of the fee subsidy across the investment products of the KiwiSaver scheme to which the member has subscribed or been allocated.

(6) However, if the person has subscribed or been allocated to more than 1 investment product of a KiwiSaver scheme and 1 or more of those investment products contain unvested employer contributions or any other contributions that are not fully vested in the member, the provider must, to the extent practicable, credit the fee subsidy on a pro rata basis across only the investment products that do not contain those sorts of contributions.

(1) The purpose of regulations 22 to 29 is to provide for a mortgage diversion facility that allows contributions to be withdrawn from KiwiSaver schemes and complying superannuation funds, and applied towards the payment of amounts that are secured by a mortgage over a member’s principal residence, if the provider and the mortgagee choose to participate in the mortgage diversion facility and the member requests participation before it is closed to new participants.

(2) For the purposes of regulations 22 to 29, a reference to a KiwiSaver scheme is treated as including a reference to a complying superannuation fund and a reference to KiwiSaver contributions is treated as including a reference to complying superannuation fund contributions.

Providers of KiwiSaver schemes and mortgagees may participate, in accordance with the Act and these regulations, in a mortgage diversion facility that is in accordance with the principles in section 229(2) of the Act.

(1) A mortgage qualifies for participation in the mortgage diversion facility if—

• (a) it is a mortgage over the mortgagor's principal residence; and

• (b) it secures obligations that arise under a home loan facility, whether or not the mortgage also secures other obligations; and

• (c) subclauses (2) and (3) are complied with at all times.

(2) Contributions diverted from the member's KiwiSaver scheme or complying superannuation fund may only be applied to the payment of amounts (including principal, interest, or any other amounts payable) that are owing under the home loan facility secured by the qualifying mortgage.

(3) If contributions are diverted in accordance with subclause (2), the member must not be able, without making a specific application to the mortgagee, to access, withdraw, or redraw (as applicable) the amount of any diverted contributions (in whole or in part).

(4) To avoid doubt, the restrictions in subclause (3) apply even if the home loan facility—

• (a) is a reducing revolving credit contract; or

• (b) permits amounts that have been paid by that person over and above any repayment amount or minimum payment amount specified, or amounts that have been paid in advance of any specified schedule of repayments, to be accessed, withdrawn, or redrawn or otherwise advanced to that member (as applicable).

(5) In this regulation, unless the context otherwise requires,—

A member of a KiwiSaver scheme who wishes to participate in the mortgage diversion facility in respect of a mortgage must—

• (a) request, before 1 June 2009, his or her mortgagee to participate in the mortgage diversion facility in respect of the mortgage and to have KiwiSaver contributions diverted for that mortgage; and

• (b) give to the mortgagee a statutory declaration that the property that is mortgaged is his or her principal residence; and

• (c) give notice to the mortgagee of the name and address of the provider of the KiwiSaver scheme.

A mortgagee must, if the mortgagee agrees to participate in the mortgage diversion facility in respect of a mortgagor,—

• (a) receive the statutory declaration referred to in regulation 24(b); and

• (b) give to the mortgagor—

  • (i) notice of the mortgagee’s agreement to participate in the mortgage diversion facility in respect of the mortgagor; and

  • (ii) confirmation that the mortgage qualifies for participation in the mortgage diversion facility under regulation 23.

A member of a KiwiSaver scheme whose mortgagee has agreed to participate in the mortgage diversion facility must give to the provider of his or her KiwiSaver scheme—

• (a) a request to divert, in respect of his or her mortgage, contributions that are received after the provider receives such request; and

• (b) a copy of the statutory declaration referred to in regulation 24(b); and

• (c) a copy of the information referred to in regulation 25(b).

A provider of a KiwiSaver scheme who receives the information referred to in regulation 26 must, if the provider agrees to participate in the mortgage diversion facility in respect of the member of the KiwiSaver scheme,—

• (a) ensure that the member meets the criterion in section 229(2)(c) of the Act (which requires a 12-month minimum period before KiwiSaver contributions can be diverted); and

• (b) ensure that each amount forwarded to the member’s mortgagee complies with section 229(2)(i) and (ia) of the Act; and

• (c) ensure that employer contributions are not diverted; and

• (d) forward the diverted amount to the mortgagee as soon as practicable after receiving the amount.

(1) This regulation applies if—

• (a) a provider of a KiwiSaver scheme or a mortgagee decides to terminate participation in the mortgage diversion facility in respect of all or any members (whether the termination is in respect of members who are already having contributions diverted under the facility or other members); or

• (b) the member of a KiwiSaver scheme who participates in the mortgage diversion facility in respect of a mortgage—

  • (i) pays the total amount secured by the mortgage; or

  • (ii) chooses to cease participation in the mortgage diversion facility; or

  • (iii) ceases to be a member of the relevant KiwiSaver scheme; or

• (c) the mortgage is discharged.

(2) The provider must stop forwarding contributions to the mortgagee in respect of the member and must retain the KiwiSaver contributions in the member’s accounts.

(3) The person whose act caused this regulation to apply must give notice to the other 2 participants in the mortgage diversion facility.

The terms and conditions of the mortgage diversion facility referred to in these regulations—

• (a) are implied terms of the trust deed of any KiwiSaver scheme that participates in the facility; and

• (b) override any express terms of the trust deed to the contrary.

For the purposes of clause 8(3)(c)(ii) of Schedule 1 of the KiwiSaver Act 2006, a person is a qualifying person if they hold a notice that complies with regulation 31 and they have given their KiwiSaver scheme provider a copy of that notice.

For the purposes of regulation 30, a notice complies with this regulation if the notice—

• (a) is in the name of the person:

• (b) is signed by the Minister of Housing or a delegate:

• (c) states that the Minister of Housing or delegate is satisfied that the income, assets, and liabilities of the person represent a financial position that would be expected of a person that has never held an estate in land (whether alone or as a joint tenant or tenant in common).