Dated at Wellington this 24th day of September 2012.
Head of Primary Regulatory Operations.
Statement of reasons
This notice, which comes into force on the day after the date of its notification in the Gazette, amends the Securities Act (Estates and Interests in Australian Land) Exemption Notice 2002 (the 2002 notice) by—
The Financial Markets Authority, after satisfying itself of the matters set out in section 70B(2) of the Act, considers that it is appropriate to amend the principal notice because—
the 2002 notice already grants broad exemptions from the Act and from the Securities Regulations 1983 (except the regulation that prohibits advertisements from being misleading). This recognises that, in the absence of the exemptions, offers of estates and interests in Australian land for which a certificate of title is issued would need to comply with the disclosure requirements of the Act and of regulations made under the Act. This would be inconsistent with the position that applies to offers of estates and interests in New Zealand land for which a certificate of title can be issued. As is the case with these offers of estates and interests in New Zealand land, the Financial Markets Authority considers it is appropriate that these transactions be regulated by relevant fair trading and real estate law, rather than securities law. Accordingly, the Financial Markets Authority considers that the exemptions are appropriate; and
the exemptions in this notice have been in place for a number of years and the policy reasons explained above remain valid and relevant. Accordingly, the exemptions generally remain appropriate in light of the policy of the notice. However, the Financial Markets Authority recognises that the statutory exemption for estates and interests in New Zealand land is a complete exemption from all of the requirements of Part 2 of the Act. The Financial Markets Authority therefore considers it appropriate to extend the scope of the exemptions for these estates and interests in Australian land to an exemption from all of Part 2 of the Act. This will better align the exemption with the statutory exemption for estates and interests in New Zealand land. The Financial Markets Authority also considers that the extended exemption is appropriate given its view that these transactions should not be regulated by securities law and the fact that the Financial Markets Authority does not exercise any regulatory oversight over these offers of estates and interests in Australian land; and
given the replacement of the Securities Regulations 1983 with the Securities Regulations 2009, it is appropriate to update the references to the regulations; and
given the limited application of the notice to estates and interests in Australian land for which a certificate of title is issued and the application of general fair trading and real estate law to those transactions, the Financial Markets Authority considers that the notice, as extended, will not cause significant detriment to subscribers and is not broader than is reasonably necessary to address the matters that gave rise to the exemptions.
Date of notification in Gazette: 27 September 2012.
This notice is administered by the Financial Markets Authority.