Dated at Wellington this 28th day of June 2011.
Statement of reasons
Note: the following statement of reasons should be read in conjunction with the statement of reason(s) appended to:
This exemption notice comes into force on 1 July 2011 and expires on 30 June 2013.
The exemption is granted to permit Australian-regulated financial services firms to provide financial adviser services into New Zealand on an offshore basis.
The effect is that persons who hold current Australian financial services licences granted by the Australian Securities and Investments Commission, and their specified representatives under Australian law, are exempted from the following provisions of New Zealand law to the extent that they provide personalised services from Australia to New Zealand retail clients and have no place of business in New Zealand:
section 17(1) of the Financial Advisers Act 2008 (the Act). In the case of Australian licensees, the broad effect is that this exempts the entity from acting only through registered or authorised individual advisers. In the case of specified representatives, the broad effect is that this exempts the entity's individual advisers from having to be registered or authorised:
in the case of both Australian licensees and specified representatives, section 20B of the Act (restrictions on holding out as financial planner or investment planner):
in the case of both Australian licensees and specified representatives, section 22 of the Act (financial adviser must make disclosure before providing personalised service to retail client):
in the case of specified representatives, sections 11 and 12 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (broadly, this exempts the entity's individual advisers from having to be registered, and from the prohibition on holding out as being in the business of providing financial service unless registered).
FMA considers that it is appropriate to grant the exemption as a temporary measure to assist Australian-regulated financial advisers to provide personalised services to certain clients whilst long-term mutual arrangements for trans-Tasman recognition are being considered.
FMA is satisfied that the elements of section 148(2)(b) of the Act are fulfilled in relation to the exemption, as follows:
the relevant services are subject to the regulations of an overseas jurisdiction; and
the protection of the New Zealand public is unlikely to be prejudiced because of—
the protections offered under the Australian financial service providers regulatory regime:
FMA's relationship with ASIC, the regulator of Australian financial advisers, which involves sharing of information and co-operation arrangements:
the scope of the exemption being limited to certain categories of New Zealand clients and certain services:
the conditions imposed including notices to New Zealand clients, so that they are aware of the nature of the exemption, and disclosure being made as if the clients were based in Australia:
the requirement that Australian licensees must be registered on the New Zealand financial service providers register and be members of a New Zealand dispute resolution scheme; and
the exemption is of limited duration, is to address rigidities in the law, is framed in such a way that it is no broader than is reasonably necessary to address the matters that gave rise to the exemption, and is granted as a class exemption so that potential candidates in similar situations will benefit from the same treatment.
Note: the preceding statement of reasons should be read in conjunction with the statement of reason(s) appended to: