Supplementary Order Paper No 223

No 223

House of Representatives

Supplementary Order Paper

Tuesday, 5 April 2011

Securities Trustees and Statutory Supervisors Bill


Proposed amendments

Hon Simon Power, in Committee, to move the following amendments:

Clause 2

To omit at the end of the period of 9 months beginning with the day on which it receives the Royal assent unless it is earlier brought into force on a date appointed by Order in Council (lines 5 to 8 on page 6) and substitute on 1 October 2011.

Clause 4(1)

Definition of Commission: to omit this definition (lines 1 to 3 on page 7).

To insert the following definitions after the definition of deposit taker (after line 12 on page 7):

FMA means the Financial Markets Authority established under Part 2 of the Financial Markets (Regulators and KiwiSaver) Act 2010

FMA appointee has the meaning given in section 38(1)

To insert the following paragraph after paragraph (d) of the definition of issuer obligation (after line 25 on page 7):

  • (da) the KiwiSaver Act 2006:

To insert the following definitions after the definition of issuer obligation (after line 28 on page 7):

KiwiSaver scheme means a KiwiSaver scheme other than a restricted KiwiSaver scheme (within the meanings given to those terms in section 4(1) of the KiwiSaver Act 2006)

KiwiSaver trustee means a person who is designated or appointed as trustee of a KiwiSaver scheme or the successor of that person

Paragraph (b) of the definition of licensee: to omit a Commission (line 34 on page 7) and substitute an FMA.

Definition of licensee obligation: to omit this definition (line 36 on page 7 to line 6 on page 8) and substitute the following definition:

licensee obligation means an obligation imposed on a licensee by or under any or all of the following:

  • (a) every governing document:

  • (b) the terms of the offer of the security:

  • (c) a court order relating to a supervised interest:

  • (d) this Act:

  • (e) the KiwiSaver Act 2006:

  • (f) Part 5D of the Reserve Bank of New Zealand Act 1989:

  • (g) the Retirement Villages Act 2003:

  • (h) the Securities Act 1978:

  • (i) the Unit Trusts Act 1960

Definition of operator obligation: to omit of a retirement village (line 24 on page 8).

Paragraphs (b) and (c) of the definition of operator obligation: to omit these paragraphs (lines 28 and 29 on page 8) and substitute the following paragraphs:

  • (b) a court order relating to the retirement village:

  • (c) this Act:

To insert the following definition after the definition of resident (after line 34 on page 8):

restricted scheme has the meaning given in section 4(1) of the KiwiSaver Act 2006

Paragraph (c) of the definition of security: to omit this paragraph (line 2 on page 9) and substitute the following paragraphs:

  • (c) a unit in a unit trust:

  • (d) an interest in a KiwiSaver scheme

To insert the following paragraph after paragraph (a) of the definition of trust deed (after line 29 on page 9):

  • (ab) in relation to a KiwiSaver scheme, has the meaning given in section 4(1) of the KiwiSaver Act 2006:

Definition of trust deed: to omit a trustee of in each place where it appears (lines 27 and 30 on page 9).

Paragraph (b) of the definition of trustee: to omit this paragraph (line 37 on page 9) and substitute the following paragraphs:

  • (b) a unit trustee; and

  • (c) a KiwiSaver trustee

Heading to clause 8A

To omit Commission (line 31 on page 11) and substitute FMA.

Clause 8A

To omit 7, (line 32 on page 11).

To omit a Commission (line 33 on page 11) and substitute an FMA.

Heading to clause 9

To omit Commission (line 2 on page 12) and substitute FMA.

Clause 9(1)

To omit Commission (line 3 on page 12) and substitute FMA.

To insert the following paragraph after paragraph (c) (after line 8 on page 12):

  • (ca) a KiwiSaver trustee:

Heading to clause 10

To omit Commission (line 24 on page 12) and substitute FMA.

Clause 10

To omit Commission in each place where it appears (lines 25 and 27 on page 12 and line 4 on page 13) and substitute in each case FMA.

Heading to clause 13

To omit Commission (line 1 on page 14) and substitute FMA.

Clause 13

To omit Commission in each place where it appears (lines 4, 7, 11, and 15 on page 14) and substitute in each case FMA.

To add the following subclause (after line 23 on page 14):

  • (5) The FMA may publicly notify any details about a licence (including the information referred to in section 12 and details relating to the variation or cancellation of a licence) as it thinks fit.

Clause 14

To omit Commission in each place where it appears (lines 26, 30, and 33 on page 14) and substitute in each case FMA.

Clause 14(2)(b)

To omit prescribed fee (line 31 on page 14) and substitute fee prescribed under section 62 of the Financial Markets (Regulators and KiwiSaver) Act 2010.

Clause 14(3)

To omit the information provided remains accurate at that time (lines 35 and 36 on page 14) and substitute all, or any specified part, of the information provided in relation to the application (whether at the time of the application or at any later date) remains accurate at the time that verification is required under this subsection.

Clause 15

To omit Commission in each place where it appears (lines 7, 8, 16, 17, 36, and 37 on page 15 and line 27 on page 16) and substitute in each case FMA.

Clause 15(5)

To omit this subclause (lines 33 to 37 on page 16).

Clause 15(5A)

To omit this subclause (lines 1 to 3 on page 17).

Clause 15(6)

To omit this subclause (lines 4 to 14 on page 17).

Clause 16

To omit Commission in each place where it appears (lines 26, 28, and 29 on page 17) and substitute in each case FMA.

Clause 17

To omit this clause (line 32 on page 17 to line 36 on page 18) and substitute the following clause:

17 Notice, consultation, and submissions concerning decision under section 15(1)
  • (1) Before making a decision under section 15(1), the FMA must consult with, and take into account the views of,—

    • (a) the Reserve Bank of New Zealand, if the application relates to a licence that covers a debt security issued by a deposit taker:

    • (b) the Registrar of Retirement Villages, if the application relates to a licence that covers a retirement village.

    (2) The FMA may decline to issue a licence, or may issue a licence other than as proposed in the application, only if the FMA gives the applicant—

    • (a) at least 10 working days' written notice of the following matters before the FMA makes a decision under section 15(1):

      • (i) that the FMA may decline to issue a licence, or may issue a licence other than as proposed in the application; and

      • (ii) the reasons why it is considering taking that action; and

    • (b) an opportunity to make written submissions and to be heard on the matter within that notice period.

    (3) After making a decision on the application under section 15(1), the FMA must notify the applicant, and any person supervised by the applicant, in writing of—

    • (a) the decision; and

    • (b) if the FMA declines to issue the licence, or does not issue or vary the licence as proposed in the application, the FMA's reasons for the decision; and

    • (c) if the FMA issues or varies the licence (whether as proposed in the application or not), any matters that the FMA wishes the licensee to consider for the purposes of section 25(2).

Heading to clause 18

To omit Commission's (line 1 on page 19) and substitute FMA's.

Clause 18(1)

To omit A person who is dissatisfied with a decision under section 17(5) may (lines 3 and 4 on page 19) and substitute An applicant may.

To insert after the decision (line 6 on page 19) under section 17(3).

Clause 18(4)

To omit Commission (line 19 on page 19) and substitute FMA.

Clause 20

To omit Commission in each place where it appears (lines 5 and 10 on page 20) and substitute in each case FMA.

Clause 20(3)

To omit this subclause (lines 14 to 24 on page 20).

Heading to clause 21

To omit Commission (line 27 on page 20) and substitute FMA.

Clause 21

To omit the Commission in each place where it appears (lines 30 and 38 on page 20, lines 8, 9, 11, 14, 15, 16, 17, 18, 22, 24, 25, 26, 27, and 29 on page 21, and lines 1, 3, 5, 7, and 9 on page 22) and substitute in each case the FMA.

To omit Commission (line 6 on page 21) and substitute FMA.

Clause 21(7)(b)

To omit is a licensee (lines 5 and 6 on page 22) and substitute holds a licence that covers the security or retirement village.

Clause 21(8)

To omit a Commission (line 8 on page 22) and substitute an FMA.

Heading to clause 22

To omit Commission (line 12 on page 22) and substitute FMA.

Clause 22

To omit the Commission in each place where it appears (lines 27, 28, and 31 on page 22 and lines 6, 9, 10, 12, and 14 on page 23) and substitute in each case the FMA.

To omit or Commission in each place where it appears (lines 35 and 38 on page 22 and lines 1 and 17 on page 23) and substitute in each case or FMA.

Clause 22(1A)(b)

To omit section 15(6)(b) (line 28 on page 22) and substitute section 17(3)(b).

Clause 22(2)

To omit a Commission (line 30 on page 22) and substitute an FMA.

Clause 23

To omit Commission in each place where it appears (lines 25, 27, 31, and 33 on page 23 and line 21 on page 24) and substitute in each case FMA.

Clause 23(7)

To omit Commission (line 25 on page 24) and substitute FMA.

Heading to clause 24

To omit Commission (line 34 on page 24) and substitute FMA.

Clause 24

To omit Commission in each place where it appears (lines 35 and 36 on page 24 and line 1 on page 25) and substitute in each case FMA.

Clause 24(2)(a)(iv)

To omit a description of (line 11 on page 25).

Clause 25

To omit Commission in each place where it appears (lines 28, 32, 33, and 36 on page 25) and substitute in each case FMA.

Clause 25(2)

To omit sections 15(6)(c) and 30(5)(d) (line 33 on page 25) and substitute sections 17(3)(c) and 30(5)(d).

Clause 26

To omit this clause (lines 1 to 27 on page 26).

Heading to clause 27

To omit Commission (line 29 on page 26) and substitute FMA.

Clause 27

To omit Commission in each place where it appears (line 31 on page 26 and lines 4, 6, and 13 on page 27) and substitute in each case FMA.

Clause 27(4)(a)

To omit “to” (line 21 on page 27).

To omit remedy (line 22 on page 27) and substitute to remedy.

To insert the following subparagraph after paragraph (a)(i) (after line 22 on page 27):

  • (ia) to avoid any further breach; or

To omit mitigate (line 23 on page 27) and substitute to mitigate.

To omit correct (line 26 on page 27) and substitute in light of.

Clause 28

To omit Commission in each place where it appears (lines 30, 31, and 34 on page 27 and lines 1, 3, and 5 on page 28) and substitute in each case FMA.

Heading to clause 29

To omit Commission's (line 6 on page 28) and substitute FMA's.

Clause 29

To omit Commission in each place where it appears (lines 7 and 8 on page 28) and substitute in each case FMA.

Clause 29(2)(a)

To omit “to” (line 20 on page 28).

To omit remedy (line 21 on page 28) and substitute to remedy.

To insert the following subparagraph after paragraph (a)(i) (after line 22 on page 28):

  • (ia) avoid any further breach; or

To omit mitigate (line 23 on page 28) and substitute to mitigate.

To omit correct (line 26 on page 28) and substitute in light of.

Heading to clause 30

To omit Commission (line 31 on page 28) and substitute FMA.

Clause 30

To omit Commission in each place where it appears (lines 33 and 35 on page 28, lines 3, 7, 11, 14, 15, 27, 29, and 35 on page 29, and lines 2 and 6 on page 30) and substitute in each case FMA.

Clause 30(2)

To omit this subclause (lines 25 and 26 on page 29) and substitute the following subclause:

  • (2) The FMA may vary a licence only if the FMA gives the applicant—

    • (a) at least 10 working days' written notice of the following matters before the FMA varies the licence:

      • (i) that the FMA may vary the licence; and

      • (ii) the reasons why it is considering taking that action; and

    • (b) an opportunity to make written submissions and to be heard on the matter within that notice period.

Clause 30(5)(b)

To omit Commission's (line 4 on page 30) and substitute FMA's.

Clause 31

To omit this clause (line 9 on page 30 to line 14 on page 31).

Heading to clause 32

To omit Commission's (line 15 on page 31) and substitute FMA's.

Clause 32(1)

To omit Commission's (lines 17 and 18 on page 31) and substitute FMA's.

To omit section 31(5) (line 18 on page 31) and substitute section 30(1).

Clause 32(3)(b)

To omit Commission (line 27 on page 31) and substitute FMA.

Heading to clause 33

To omit Commission's (line 32 on page 31) and substitute FMA's.

Clause 33

To omit Commission in each place where it appears (line 35 on page 31 and lines 3, 13, 29, 31, and 33 on page 32) and substitute in each case FMA.

Clause 33(6)

To omit this subclause (line 36 on page 32 to line 5 on page 33) and substitute the following subclause:

  • (6) The FMA may take 1 or more of the steps referred to in subsection (2)(b) to (d) only if the FMA gives the licensee—

    • (a) at least 5 working days' written notice of the following matters before the FMA takes the action:

      • (i) that the FMA may take 1 or more of the steps referred to in subsection (2)(b) to (d); and

      • (ii) the reasons why it is considering taking that action; and

    • (b) an opportunity to make written submissions and to be heard on the matter within that notice period.

Clause 34(1)(a)

To omit Commission's (line 8 on page 33) and substitute FMA's.

Clause 34(2)

To omit Commission (line 21 on page 33) and substitute FMA.

Clause 34(4)

To omit Commission (line 3 on page 34) and substitute FMA.

Clause 35(a)

To omit Commission's (line 14 on page 34) and substitute FMA's.

Clause 36(a)

To omit Commission's (line 19 on page 34) and substitute FMA's.

Heading to clause 37

To omit Commission (line 22 on page 34) and substitute FMA.

Clause 37(1)

To omit Commission (line 29 on page 34) and substitute FMA.

Clause 37(5)

To omit this subclause (lines 7 and 8 on page 35).

Heading to clause 38

To omit Commission (line 9 on page 35) and substitute FMA.

Clause 38

To omit the Commission in each place where it appears (lines 15, 19, 20, 25, 26, 27, 29, and 33 on page 35 and lines 1, 2, 3, 4, 5, 6, 8, 17, 19, 21, 23, and 25 on page 36) and substitute in each case the FMA.

Clause 38(1)

To omit Commission (line 16 on page 35) and substitute FMA.

Clause 38(2)

To omit this subclause (lines 22 to 24 on page 35) and substitute the following subclause:

  • (2) The FMA must, as soon as practicable after making the appointment, notify the affected person of the appointment.

Clause 38(6)(b)

To omit is a licensee (lines 21 and 22 on page 36) and substitute holds a licence that covers the security or retirement village.

Clause 38(7)

To omit a Commission (line 24 on page 36) and substitute an FMA.

Heading to clause 39

To omit Commission (line 29 on page 36) and substitute FMA.

Clause 39

To omit Commission in each place where it appears (lines 33, 36, 37, and 38 on page 36 and lines 5, 6, 7, 8, 12, 15, 16, 19, 20, and 23 on page 37) and substitute in each case FMA.

Clause 39(3)

To omit must give a copy of the replacement notice to the Commission (lines 10 and 11 on page 37) and substitute must, as soon as practicable after giving the replacement notice, give a copy of the notice to the FMA.

Clause 40

To omit Commission in each place where it appears (lines 31, 33, and 37 on page 37 and lines 2 and 10 on page 38) and substitute in each case FMA.

Clause 40(4)(c)

To omit the time by which (line 25 on page 38) and substitute a reasonable time within which.

Clause 41(4)(b)

To omit Commission (line 19 on page 39) and substitute FMA.

Clause 42(1)

To omit Commission (line 15 on page 41) and substitute FMA.

Clause 43(1)

To omit Commission (line 12 on page 42) and substitute FMA.

Clause 43A(2)

To omit court (line 30 on page 42) and substitute High Court.

Part 3 heading

To omit Commission's (line 11 on page 43) and substitute FMA's.

Heading above clause 43B

To omit Commission in relation to issuers and operators (lines 14 and 15 on page 43) and substitute FMA in relation to issuers.

Clause 43B

To omit (other than sections 47 and 48) (line 18 on page 43).

Heading to clause 44

To omit Commission (line 20 on page 43) and substitute FMA.

Clause 44

To omit Commission in each place where it appears (lines 23, 24, 25, 28, 29, and 32 on page 43) and substitute in each case FMA.

Clause 45

To omit Commission in each place where it appears (lines 8 and 10 page 44) and substitute in each case FMA.

Heading to clause 46

To omit Commission (line 16 on page 44) and substitute FMA.

Clause 46(1A)

To omit this subclause (line 34 on page 44 to line 13 on page 45) and substitute the following subclauses:

  • (1A) This section also applies if, in the case of a scheme, a trustee or statutory supervisor becomes aware, in the course of or in connection with the performance of functions as trustee or statutory supervisor, of information on the basis of which the trustee or statutory supervisor could reasonably form the opinion that—

    • (a) the funds in the scheme are not sufficient to enable debts in respect of the scheme to be paid as they become due in the normal course of business; or

    • (b) the value of the assets in the scheme is less than the value of the liabilities in respect of the scheme, including contingent liabilities; or

    • (c) it is likely that—

      • (i) the funds in the scheme will not be sufficient to enable debts in respect of the scheme to be paid as they become due in the normal course of business; or

      • (ii) the value of the assets in the scheme will be less than the value of the liabilities in respect of the scheme, including contingent liabilities.

  • (1B) In subsection (1A), scheme has the meaning given in section 2(1) of the Securities Act 1978.

Clause 46(2)

To omit Commission in each place where it appears (lines 16 and 22 on page 45) and substitute in each case FMA.

Clause 47

To omit this clause (line 27 on page 45 to line 12 on page 46).

Clause 48(4)

To omit this subclause (line 30 on page 46 to line 3 on page 47) and substitute the following subclause:

  • (4) In this section, protected disclosure means a disclosure of information to the FMA in good faith by the trustee or statutory supervisor under any of sections 44 to 46 of this Act.

Heading above clause 49

To omit Commission's (line 4 on page 47) and substitute FMA's.

Heading to clause 49

To omit Commission may give direction to trustee, etc, (line 5 on page 47) and substitute FMA may give direction to trustee or statutory supervisor.

Clause 49

To omit Commission in each place where it appears (lines 7, 20, and 32 on page 47) and substitute in each case FMA.

Clause 49(6)

To omit Commission's (line 33 on page 47) and substitute FMA's.

Heading to clause 50

To omit Commission (line 1 on page 48) and substitute FMA.

Clause 50

To omit Commission in each place where it appears (lines 3, 14, 15, 21, 31, 32, and 38 on page 48) and substitute in each case FMA.

To omit section 49 of the Securities Act 1978 or in each place where it appears (lines 10, 11, 18, 19, 28, 29, 35, and 36 on page 48) and substitute in each case section 116L of the KiwiSaver Act 2006, section 49 of the Securities Act 1978, or.

To omit subclause (5) (lines 3 to 36 on page 49) and substitute the following subclause:

  • (5) On an application, the court may, after giving the issuer, trustee, or statutory supervisor and any other persons that the court thinks fit the opportunity to be heard, make any order that the court may make under section 116L(4) of the KiwiSaver Act 2006, section 49(3) of the Securities Act 1978, or section 19A(4) of the Unit Trusts Act 1960.

Heading above clause 51

To omit this heading (line 8 on page 50).

Clause 51

To omit this clause (lines 9 to 16 on page 50).

Heading above clause 52

To omit this heading (line 17 on page 50).

Clause 52

To omit this clause (lines 18 to 27 on page 50).

Clause 53

To omit this clause (lines 28 to 32 on page 50).

Clause 54

To omit this clause (lines 1 to 31 on page 51).

Clause 55

To omit this clause (line 32 on page 51 to line 17 on page 52).

Heading to clause 56

To omit Commission (line 19 on page 52) and substitute FMA.

Clause 56

To omit Commission in each place where it appears (lines 20, 21, and 26 on page 52) and substitute in each case FMA.

Heading to clause 57

To omit Commission's (line 29 on page 52) and substitute FMA's.

Heading above clause 58

To omit this heading (line 10 on page 53).

Clause 58

To omit this clause (lines 11 to 26 on page 53).

Clause 59

To omit Commission in each place where it appears (line 32 on page 53 and lines 3, 5, and 20 on page 54) and substitute in each case FMA.

Clause 59(1)(e)

To omit this paragraph (lines 13 and 14 on page 54).

Clause 59(1)(f)

To omit this paragraph (line 15 on page 54).

Clause 59(4)

To omit this subclause (lines 23 to 26 on page 54).

Clause 59(5)

To omit this subclause (lines 27 and 28 on page 54).

Clause 60

To omit clause 60 (line 30 on page 54 to line 24 on page 55) and substitute the following clauses:

60 Temporary licences
  • (1) This section applies to—

    • (a) a person who, immediately before the commencement of this Act, was a trustee or statutory supervisor in respect of a security or statutory supervisor in respect of a retirement village and either—

      • (i) was approved to be appointed under section 48 of the Securities Act 1978, section 5 of the Unit Trusts Act 1960, or section 38 of the Retirement Villages Act 2003, whether unconditionally or subject to conditions; or

      • (ii) did not need to be approved or is otherwise lawfully appointed; and

    • (b) in the case of a KiwiSaver scheme that has an effective date that occurs on or after the commencement of this Act, the person who is the KiwiSaver trustee on that date.

    (2) However, this section does not apply to a person referred to in subsection (1)(b) if the FMA has—

    • (a) determined an application by that person for a licence; and

    • (b) notified the person of that determination under section 17.

    (3) A person to whom this section applies is deemed to hold a licence (a temporary licence) under this Act that—

    • (a) covers the security or the retirement village referred to in subsection (1); and

    • (b) includes cover for any security or retirement village to which that person is subsequently appointed (but only if the person would, in relation to that subsequent appointment, have met the requirements for appointment referred to in subsection (1)(a) if this Act had not been passed); and

    • (c) is subject to any conditions referred to in subsection (1)(a)(i).

    (4) A person who holds a temporary licence must, no later than 1 month after the commencement of this Act or (in the case of a KiwiSaver trustee referred to in subsection (1)(b)) no later than 1 month after the effective date of the relevant scheme, either—

    • (a) make an application under section 14 for a licence that covers the security or retirement village; or

    • (b) notify the issuer of the security or the operator of the retirement village, and the FMA, in writing, that the person does not intend to make the application referred to in paragraph (a).

    (5) Subject to section 18(2), a temporary licence expires on the earliest of the following:

    • (a) the date on which the temporary licence is cancelled under section 16 or 33(2)(d):

    • (b) the date on which a licence issued to the holder of a temporary licence under section 15 takes effect:

    • (c) the date on which the FMA notifies the holder (under section 17) that an application for a licence under section 14 has been rejected:

    • (d) the close of 30 September 2012.

    (6) This Act applies in relation to a temporary licence in the same way as it applies in relation to a licence issued under section 15, except that a person who holds a temporary licence does not, during the currency of the temporary licence, have to comply with section 24.

    (7) To avoid doubt, nothing in subsection (4)(a) requires a trustee or statutory supervisor to make more than one application for a licence under section 14.

    (8) In this section, appointed

    • (a) means appointed as a trustee or statutory supervisor; and

    • (b) in relation to a KiwiSaver trustee, includes designated.

    (9) In this section and in section 60A, effective date has the meaning given in section 209 of the Financial Markets (Regulators and KiwiSaver) Act 2010.

60A Limitation of Act in relation to existing KiwiSaver schemes
  • (1) This Act (including, to avoid doubt, the amendments to the KiwiSaver Act 2006 made under this Act) applies in relation to an existing KiwiSaver scheme only on and from the effective date for that scheme.

    (2) In this section, existing KiwiSaver scheme has the meaning given in section 209 of the Financial Markets (Regulators and KiwiSaver) Act 2010.

60B FMA may grant exemptions
  • (1) The FMA may, at any time before 1 October 2012,—

    • (a) exempt any person, on any terms and conditions it thinks fit, from compliance with any provision of this Act or any provision of any other enactment that requires a person to be licensed under this Act:

    • (b) vary or revoke any exemption granted, or any terms and conditions imposed, under paragraph (a) (in which case, subsections (2) to (6) apply, with necessary modifications, in all respects to such a variation or revocation).

    (2) The FMA must be satisfied, before it grants an exemption under subsection (1)(a), that—

    • (a) the action is necessary or desirable to facilitate or ensure an orderly transition to the requirements under this Act; and

    • (b) the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.

    (3) An exemption granted under subsection (1)(a)

    • (a) is a regulation for the purposes of the Regulations (Disallowance) Act 1989, but is not a regulation for the purposes of the Acts and Regulations Publication Act 1989; and

    • (b) must be presented to the House of Representatives under section 4 of the Regulations (Disallowance) Act 1989; and

    • (c) must, as soon as practicable after it is granted, be—

      • (i) published on an Internet site maintained by or on behalf of the FMA; and

      • (ii) notified in the Gazette; and

      • (iii) made available in printed form for purchase on request by members of the public.

    (4) A notification in the Gazette does not have to include the text of the exemption.

    (5) The FMA's reasons for granting an exemption under subsection (1)(a) (including why the exemption is appropriate) must be published together with the exemption.

    (6) An exemption granted under subsection (1)(a) expires on the earliest of the following:

    • (a) the expiry date stated in the exemption:

    • (b) the date on which the exemption is revoked under subsection (1)(b):

    • (c) the close of 30 September 2012.

    (7) A person does not commit an offence under section 8(1) or 8(1A) if that person has been granted an exemption from section 6.

    (8) To avoid doubt, section 60 does not apply to a person if that person has been granted an exemption from section 6.

Clause 62

To omit this clause (line 32 on page 55 to line 4 on page 57) and substitute the following clause:

62 New section 11 substituted
  • Section 11 is repealed and the following section substituted:

    11 Disclosure of information to Registrar by statutory supervisor of retirement village
    • (1) This section applies if a statutory supervisor (under the Retirement Villages Act 2003) of a retirement village operated by a corporation becomes aware, in the course of or in connection with the performance of the statutory supervisor's functions, of information on the basis of which the statutory supervisor could reasonably form the opinion that—

      • (a) the corporation is unable to pay the corporation's debts as they become due in the normal course of business; or

      • (b) the value of the corporation's assets is less than the value of the corporation's liabilities, including contingent liabilities; or

      • (c) it is likely that—

        • (i) the corporation will be unable to pay the corporation's debts as they become due in the normal course of business; or

        • (ii) the value of the corporation's assets will be less than the value of the corporation's liabilities, including contingent liabilities; or

      • (d) the corporation has breached, or is likely to breach, in a material respect, the terms of the deed of supervision relating to the retirement village.

      (2) The statutory supervisor must, as soon as practicable, disclose to the Registrar all information relevant to the matter referred to in subsection (1) that is in the possession or control of the statutory supervisor and was obtained in the course of, or in connection with, the performance of functions as statutory supervisor.

New clause 63A

To insert the following clause after clause 63 (after line 6 on page 57):

63A Amendment to Financial Markets (Regulators and KiwiSaver) Act 2010
  • (1) This section amends the Financial Markets (Regulators and KiwiSaver) Act 2010.

    (2) Part 1 of Schedule 1 is amended by inserting the following item in its appropriate alphabetical order:

    Securities Trustees and Statutory Supervisors Act 2009.

New heading and clause 64A

To insert the following heading and clause after clause 64 (after line 16 and the item under that line on page 57):

Amendments to KiwiSaver Act 2006

64A Amendments to KiwiSaver Act 2006
  • (1) This section amends the KiwiSaver Act 2006.

    (2) Section 116F is amended by repealing subsection (2) and substituting the following subsection:

    • (2) The trustee must hold a licence under the Securities Trustees and Statutory Supervisors Act 2009 that covers interests in the scheme.

    (3) Section 116FA(1) is amended by inserting the following paragraph after paragraph (a):

    • (ab) another person has been appointed to the position who holds a licence under the Securities Trustees and Statutory Supervisors Act 2009 that covers interests in the scheme, and that person has accepted the appointment; or

    (4) Section 116FA is amended by repealing subsection (2) and substituting the following subsection:

    • (2) Despite anything to the contrary in the trust deed, a manager must not discharge or remove a trustee unless the manager does so—

      • (a) under section 22 or 39 of the Securities Trustees and Statutory Supervisors Act 2009; or

      • (b) with the approval of the High Court.

Clause 64(2): first column of table

To omit Securities Commission (after line 16 on page 57) and substitute Financial Markets Authority.

Clause 64(2): second column of table

To omit licensed unit trustees, and licensed statutory supervisors of retirement villages (after line 16 on page 57) and substitute and licensed unit trustees.

Clause 64(2): third column of table

To omit (as applied, in the case of statutory supervisors of retirement villages, by section 37 of the Retirement Villages Act 2003) (after line 16 on page 57).

Clause 68: new section 39(3)

To omit Part 2 (line 8 on page 59) and substitute section 22 or 39.

Clause 71

To omit this clause (lines 21 to 33 on page 59).

Clause 72

To omit Commission (line 16 on page 60) and substitute FMA.

Clause 73

To add the following subclause as subclause (2) (after line 23 on page 60):

  • (2) Section 49(3) is amended by inserting the following paragraph after paragraph (f):

    • (fa) remove a person as manager and appoint another person as manager (with any powers that the court orders):.

Heading to clause 74

To omit 50B (line 24 on page 60) and substitute 50C.

Clause 74

To omit 50A (line 25 on page 60) and substitute 50B.

Clause 74: new section 50B

Heading to new section 50B: to omit 50B (line 26 on page 60) and substitute 50C.

To omit new subsection (4)(d) (line 7 on page 61) and substitute the following paragraphs:

  • (d) section 50A(3):

  • (e) section 50B(3):

  • (f) section 50B(4).

Clause 76

To omit this clause (lines 13 to 15 on page 61).

Clause 77

To omit this clause (lines 16 to 20 on page 61).

Clause 78

To add the following subclause as subclause (2) (after line 26 on page 61):

  • (2) Section 70 is amended by inserting the following subsection after subsection (1):

    • (1A) Regulations made for the purposes of subsection (1)(g) may, without limitation, do all or any of the following:

      • (a) specify the duties and powers of the trustee or statutory supervisor:

      • (b) specify the duties of the issuer:

      • (c) provide for the trustee or statutory supervisor to have the power, exercisable with the consent of the issuer (but without the consent of security holders having to be obtained), to make amendments to the trust deed or deed of participation that do not adversely affect the interests of security holders.

Clause 79

To omit this clause (lines 27 to 30 on page 61).

Clause 82(3)

To omit trustee, statutory supervisor, or unit trustee from new section 7(2)(p) (line 24 on page 62) and substitute trustee or statutory supervisor.

Clause 87: new section 12(1A)

To omit new section 12(1A) (lines 27 to 30 on page 63) and substitute the following subsection:

  • (1A) A provision implied in a trust deed by regulations made under section 28(2)(e)

    • (a) does not apply to the extent that it is inconsistent with provisions implied in the trust deed by section 12(1); but

    • (b) applies despite anything else to the contrary in the trust deed.

Clause 87

To add the following subclause (after line 30 on page 63):

  • (2) Section 12(2) is amended by inserting , the manager, after the trustee.

Clause 88

To omit Securities Commission in each place where it appears (line 33 on page 63 and lines 2 and 3 on page 64) and substitute in each case Financial Markets Authority.

Clause 89: new section 19A

New section 19A(4)(b): to omit this paragraph (lines 21 to 24 on page 64) and substitute the following paragraph:

  • (b) impose restrictions on the activities of the trustee or the manager (including, in the case of the manager, restrictions on advertising) that the court thinks are necessary for the protection of the interests of unit holders:

New section 19A(4)(e): to omit the manager (line 38 on page 64) and substitute the trustee or the manager.

New section 19A(4)(f): to omit the manager (line 1 on page 65) and substitute the trustee or the manager.

New section 19A(4): to insert the following paragraph after new paragraph (f) (after line 2 on page 65):

  • (fa) remove a person as manager and appoint another person as manager (with any powers that the court orders):

New section 19A(6): to omit of the manager (line 7 on page 65) and substitute in respect of the unit trust.

Clause 90

New section 28(2)(e): to omit this paragraph (lines 13 and 14 on page 65) and substitute the following paragraph:

  • (e) subject to subsection (3), prescribing provisions to be implied into a trust deed.

New section 28(4): to omit this subsection (lines 25 and 26 on page 65).


Explanatory note

This Supplementary Order Paper amends the Securities Trustees and Statutory Supervisors Bill to—

  • include a specific commencement date (clause 2); and

  • remove a reference to clause 7, to ensure that an FMA appointee that holds a licence must comply with any conditions on the licence (clause 8A); and

  • omit subclause 37(5), because that subclause is unnecessary; and

  • replace the existing clause 60 with a new clause 60, to both clarify the temporary licence regime and include KiwiSaver trustees; and

  • insert new clause 60A (which will limit the application of the Bill in relation to existing KiwiSaver schemes) and new clause 60B (which will enable the FMA to grant exemptions); and

  • change references to Commission to FMA, to take account of the new Financial Markets Authority regime; and

  • include KiwiSaver schemes and the trustees of those schemes in this Bill; and

  • make minor drafting changes to improve consistency throughout the Bill and ensure consistency with the Financial Markets (Regulators and KiwiSaver) Act 2010, including the removal of clauses 51 to 55, which are unnecessary, given that the provisions in that Act will cover the matters currently dealt with in those clauses.