(1) If the FMA considers it necessary or desirable for the purposes of performing or exercising its functions, powers, or duties under this Act or any provision of the financial markets legislation, the FMA may, by written notice served on any person, require the person—

• (a) to supply to the FMA, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or

• (b) to produce to the FMA, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or

• (c) if necessary, to reproduce, or assist in reproducing, in usable form, information recorded or stored in any document or class of documents specified in the notice (within the time and in the manner specified in the notice); or

• (d) to appear before the FMA, or a specified person, at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice.

(2) The FMA may also exercise its powers under subsection (1) for the purposes of complying with the request of an overseas regulator under section 31 or otherwise co-operating with an overseas regulator.

(3) Information supplied in response to a notice under subsection (1)(a) must be—

• (a) given in writing; and

• (b) signed in the manner specified in the notice.

(4) If a document is produced in response to a notice under subsection (1), the FMA, or the person to whom the document is produced, may—

• (a) inspect and make records of that document; and

• (b) take copies of the document or extracts from the document.

(5) In this section and sections 26 and 27, specified person means—

• (a) a member or an employee of the FMA; or

• (b) another person to whom the board of the FMA has delegated the power to receive the relevant evidence (being a person that the FMA is satisfied is suitably qualified or trained, or is a member of a class of persons who are suitably qualified or trained, to exercise the power).

(6) Subpart 5 contains miscellaneous provisions relating to the powers in this subpart.

(1) The FMA may receive evidence through a specified person, or any 2 or more specified persons.

(2) The FMA may receive in evidence, whether admissible in a court of law or not, any statement, document, information, or matter that,—

• (a) in the opinion of the FMA or the specified person who is receiving it, may assist the FMA in dealing effectively with any matter before it; or

• (b) the FMA may receive under section 31.

(1) The FMA may receive evidence—

• (a) given on oath:

• (b) not given on oath:

• (c) if the specified person who is receiving the evidence permits it, given by a written statement:

• (d) if the specified person who is receiving the evidence permits it, given by a written statement verified on oath:

• (e) given by audio-visual communication, if the FMA and the person giving the evidence agree.

(2) A specified person may administer an oath for the purpose of a person giving evidence on oath.

(1) If a person has appeared as a witness (whether or not under a notice under section 25), the FMA may, if it thinks fit, order any sum to be paid to that witness for his or her expenses.

(2) That sum must not exceed the amount that would be payable to the witness if his or her attendance had been as a witness for the Crown in a criminal case in accordance with regulations for the time being in force for the payment of witnesses for the Crown in criminal cases.

(1) The FMA may authorise a specified person to enter and search a place, vehicle, or other thing for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of any provision of the financial markets legislation if the FMA is satisfied that there are reasonable grounds—

• (a) to suspect that person has engaged in or is engaging in conduct that constitutes or may constitute such a contravention; and

• (b) to believe that the search will find evidential material in or on or part of the place, vehicle, or thing.

(2) A specified person authorised under subsection (1) may enter and search the place, vehicle, or other thing if—

• (a) the occupier of the place consents or the person in charge of the vehicle or thing consents (as the case may be); or

• (b) the specified person obtains a warrant under subsection (3).

(3) A Judge of the High Court or a District Court Judge may issue a search warrant in relation to a place, vehicle, or other thing, on application by a specified person authorised under subsection (1), if the Judge is satisfied that there are reasonable grounds to—

• (a) suspect that a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of any provision of the financial markets legislation; and

• (b) believe that the search will find evidential material in or on or part of the place, vehicle, or thing specified in the application.

(4) In this section and Schedule 2,—

(5) Schedule 2 applies for the purposes of this section.

(1) The FMA may provide to a law enforcement or regulatory agency or an overseas regulator any information, or a copy of any document, that the FMA—

• (a) holds in relation to the performance or exercise of the FMA's functions, powers, or duties under this Act or any other enactment; and

• (b) considers may assist, as the case may be,—

  • (i) the law enforcement or regulatory agency in the performance or exercise of the law enforcement or regulatory agency's functions, powers, or duties under any enactment; or

  • (ii) the overseas regulator in the performance or exercise of the overseas regulator's functions, powers, or duties under foreign law.

(2) However, the FMA may provide information, or a copy of a document, to an overseas regulator under this section only if the FMA is satisfied that appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993).

(3) The FMA may use any information, or a copy of any document, provided to it by a law enforcement or regulatory agency under any enactment, or by an overseas regulator, in the FMA's performance or exercise of its functions, powers, or duties under this Act or any other enactment.

(4) This section applies despite anything to the contrary in any contract, deed, or document.

(1) An overseas regulator may request the FMA to inquire into any matter related to the functions of that overseas regulator.

(2) The FMA may obtain information, documents, or evidence that, in the FMA's opinion, is likely to assist the FMA in complying with that request by—

• (a) exercising its powers under section 25 or authorising a person under section 52 to exercise powers under section 25(1)(a) to (c); or

• (b) exercising its powers to receive evidence.

(3) If the powers under section 25 are exercised for the purposes of complying with that request, or otherwise co-operating with an overseas regulator, that fact must be specified in the notice that is served under section 25.

(4) The FMA may transmit the information, documents, or evidence obtained by it to the overseas regulator in the manner that the FMA thinks fit.

(1) The FMA may comply with a request under section 31 only if the FMA is satisfied that—

• (a) compliance will not substantially affect the performance of its other functions; and

• (b) appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993); and

• (c) it is appropriate to do so after taking into account any matters the FMA thinks relevant.

(2) The matters the FMA may take into account under subsection (1) include, without limitation,—

• (a) whether the FMA is likely to be able to obtain the requested information, documents, or evidence:

• (b) the cost to the FMA of complying with the request:

• (c) whether the overseas regulator could more conveniently have the request satisfied by another source:

• (d) the extent to which the functions of the overseas regulator correspond with the functions of the FMA:

• (e) whether the overseas regulator would be likely to comply with a similar request made by the FMA and whether any arrangement with the overseas regulator to that effect exists:

• (f) whether, in the FMA's opinion, it would be more appropriate for the request to be dealt with under the Mutual Assistance in Criminal Matters Act 1992.

(1) The FMA may impose any conditions in relation to providing information, documents, or evidence to a law enforcement or regulatory agency or an overseas regulator (whether in compliance with a request or otherwise).

(2) The FMA must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.

(3) Conditions imposed under subsection (1) may include, without limitation, conditions relating to—

• (a) maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993):

• (b) the storing of, the use of, or access to anything provided:

• (c) the copying, returning, or disposing of copies of documents provided:

• (d) payment of the costs incurred by the FMA in providing anything or in generally complying with a request.

(1) If, as a result of an inquiry or investigation carried out by the FMA, the FMA considers that it is in the public interest for it to do so, the FMA may, in accordance with this subpart,—

• (a) exercise the right of action that a person (person A) has against a person who is or has been a financial markets participant by commencing and controlling specified proceedings against the person who is or has been a financial markets participant; or

• (b) take over specified proceedings that have been commenced by a person (person A) against a person who is or has been a financial markets participant for the purpose of continuing the proceedings.

(2) In this subpart, specified proceedings means any of the following kinds of proceedings:

• (a) proceedings under, or in respect of, any financial markets legislation (other than criminal proceedings):

• (b) proceedings seeking damages or other relief for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the inquiry or investigation referred to in subsection (1) related.

(3) In exercising a power under this section, the FMA must act in the public interest, but (subject to that duty) may take into account the interests of—

• (a) person A; and

• (b) the shareholders, members, and creditors of person A; and

• (c) if person A is an issuer, any security holders of securities issued by person A.

(4) In subsection (3)(c), issuer and security holders have the same meaning as in section 2(1) of the Securities Act 1978.

(5) The FMA must, when considering whether exercising a power under this section is in the public interest, have regard to—

• (a) its main objective under section 8; and

• (b) the likely effect of the proceedings on the future conduct of financial markets participants in connection with the financial markets; and

• (c) whether exercising the powers is an efficient and effective use of the FMA’s resources; and

• (d) the extent to which the proceedings involve matters of general commercial significance or importance to the financial markets; and

• (e) the likelihood of person A commencing the proceedings (if those proceedings have not yet been commenced) and diligently continuing the proceedings; and

• (f) any other matters it considers relevant.

(1) The FMA may commence proceedings under section 34(1)(a) without the leave of the High Court only if—

• (a) person A has not yet commenced proceedings in respect of the matter; and

• (b) the FMA serves written notice on person A of its intention to commence proceedings; and

• (c) within 30 working days of the FMA giving that notice, person A does not—

  • (i) commence proceedings; or

  • (ii) give written notice to the FMA that it objects to the FMA commencing the proceedings.

(2) However, the FMA may commence proceedings under section 34(1)(a) before the 30-working-day period referred to in subsection (1)(c) expires (without the leave of the High Court) if person A gives written notice to the FMA that he, she, or it consents to the FMA commencing the proceedings.

(3) The FMA may exercise a power under section 34(1)(b) only if—

• (a) person A gives written notice to the FMA that he, she, or it consents to the FMA taking over the proceedings (in which case the High Court may, on an application from the FMA, make an order under section 38 to facilitate the takeover); or

• (b) the leave of the High Court is given under section 36.

(1) The FMA may, with the leave of the High Court,—

• (a) commence proceedings under section 34(1)(a) if person A objects under section 35(1)(c)(ii); or

• (b) take over proceedings under section 34(1)(b) if proceedings have been commenced by person A.

(2) The High Court must give leave if it is satisfied that it is in the public interest for—

• (a) the FMA to exercise a power under section 34(1)(a) or (b) (as the case may be); and

• (b) the FMA, rather than person A, to control the conduct of the proceedings.

(3) Despite subsections (1) and (2), if person A is an individual, this section does not apply (and, accordingly, the High Court may not give leave under this section).

(4) The High Court must, when considering whether to give leave, have regard to—

• (a) whether person A intends to commence or diligently continue the proceedings (as the case may be); and

• (b) the interests of the persons referred to in section 34(3); and

• (c) any other matters it considers relevant.

(1) The FMA must serve notice of an application for leave under section 36 on person A (unless the High Court orders otherwise).

(2) In relation to that application for leave, person A—

• (a) may appear and be heard; and

• (b) must, if person A appears, inform the High Court whether person A intends to commence or continue proceedings.

(1) The High Court may, on the application of the FMA, make any order it thinks fit in relation to proceedings commenced or taken over, or to be commenced or taken over, under this subpart, including (without limitation) an order—

• (a) authorising the FMA to control the conduct of the proceedings:

• (b) giving directions for the conduct of the proceedings:

• (c) requiring person A or the directors of person A to provide information or assistance in relation to the proceedings:

• (d) directing that any amount ordered to be paid by a defendant in the proceedings must be applied first to pay, in whole or in part, the FMA's actual costs in commencing or taking over the proceedings under this subpart and in conducting those proceedings:

• (e) subject to paragraph (d), directing that any amount ordered to be paid by a defendant in the proceedings must be paid, in whole or part, to any persons referred to in section 34(3)(b) or (c) instead of to person A.

(2) If the FMA proposes to exercise a power under this subpart, the High Court may grant interim relief on the application of the FMA, whether or not the FMA has given the required notice, obtained leave, or satisfied any other requirements for its exercise of a power under this subpart.

(3) The High Court may grant that interim relief on the conditions it thinks fit, including (without limitation) conditions as to the giving of notice or making of an application for leave.

(1) If the FMA commences or takes over proceedings under this subpart in respect of person A, and other persons have the same or substantially the same interest in relation to the subject-matter of the proceedings as person A, the High Court may appoint the FMA to represent all or some of the persons having the same or substantially the same interest.

(2) The High Court may, for the purpose referred to in subsection (1), make any order that it thinks fit, including (without limitation) an order—

• (a) as to the control and conduct of the proceedings:

• (b) as to the costs of the proceedings:

• (c) directing the distribution of any amount ordered to be paid by a defendant in the proceedings among the persons represented.

(1) The FMA must, after commencing or taking over proceedings under this subpart in respect of person A, consult with person A as to the conduct of those proceedings—

• (a) as the FMA considers appropriate; or

• (b) as otherwise directed by the High Court.

(2) However, the FMA is not required to consult with person A, and the High Court must not direct the FMA to do so, if the FMA considers that consultation would materially prejudice the FMA in its ability to efficiently or effectively conduct the proceedings.

No proceedings commenced or taken over under this subpart may be settled, compromised, or discontinued without the approval of the High Court.

If the FMA applies for the leave of the High Court to commence proceedings under section 34(1)(a), the date on which that application for leave is filed must, for the purposes of—

• (a) the Limitation Act 2010, be treated as being the date on which the claim is filed in relation to those proceedings:

• (b) the Limitation Act 1950 (as applied under section 59 of the Limitation Act 2010), be treated as being the date on which the proceedings are brought.

(1) The FMA may exercise a power under section 34 regardless of whether the date on which the relevant claim accrued, or the date of the act or omission on which the relevant claim is based, was before or after the commencement of this section.

(2) In subsection (1), claim has the same meaning as in section 4 of the Limitation Act 2010.

(3) To avoid doubt, if a person ceased to be a financial markets participant before the commencement of this section, the person must still be treated as being a person who has been a financial markets participant as referred to in section 34.

(4) The FMA may exercise the power to take over specified proceedings under section 34(1)(b) regardless of whether those proceedings were commenced before or after the commencement of this section.

(1) The FMA may, on its own initiative or on the application of any person, make an order prohibiting the publication or communication of any information, document, or evidence that is provided or obtained in connection with any inquiry, investigation, or other proceeding of the FMA under this Act or any other enactment.

(2) The FMA may make an order under subsection (1) on the terms and conditions (if any) that it thinks fit.

(3) An order under subsection (1) may be expressed to have effect—

• (a) from the commencement of any inquiry, investigation, or other proceeding of the FMA to the end of that inquiry, investigation, or proceeding; or

• (b) for any shorter period.

(4) At the end of the inquiry, investigation, or proceeding, the Official Information Act 1982 and the Privacy Act 1993 apply to any information or document or evidence that was the subject of the order under subsection (1).

(1) An order under section 44 does not prohibit the publication or disclosure of any information, document, or evidence by a person if the publication or disclosure is with the FMA's consent.

(2) For the purposes of subsection (1), the FMA's consent must not be unreasonably withheld.

(3) It is reasonable for the FMA to withhold its consent if it considers that the publication or disclosure of any information, document, or evidence would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of contraventions of the financial markets legislation.

(4) Subsection (3) does not limit the circumstances in which it may be reasonable for the FMA to withhold its consent.

(1) The FMA may accept a written undertaking given by, or on behalf of, a person in connection with a matter in relation to which the FMA is performing or exercising any of its functions, powers, or duties for the purposes of this Act or any other enactment.

(2) The person may withdraw or vary the undertaking with the consent of the FMA.

(1) If the FMA considers that a person who has given an undertaking under section 46 has breached a term of that undertaking, the FMA may apply to the High Court for an order under subsection (2).

(2) The High Court may make any of the following orders if it is satisfied that the person has breached a term of the undertaking:

• (a) an order directing the person to comply with that term:

• (b) an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:

• (c) any order that the court thinks appropriate directing the person to compensate any other person who has suffered loss, injury, or damage as a result of the breach:

• (d) an order for any consequential relief that the court thinks appropriate.

(3) The High Court must, before making an order under subsection (2), take into account—

• (a) the nature and extent of the breach of the term of the undertaking; and

• (b) the nature and extent of any loss, injury, or damage suffered by a person as a result of the breach of the term of the undertaking; and

• (c) the circumstances in which the breach of the term of the undertaking took place (including whether the breach was intentional, inadvertent, or caused by negligence); and

• (d) any other matters that it considers relevant.

(1) The FMA may, at any time, state a case for the opinion of the High Court on a question of law arising in a matter before it under this Act or any other enactment.

(2) The High Court may order the removal into the Court of Appeal of a case stated for the opinion of the High Court under this section.

(3) The High Court or the Court of Appeal, as the case may be, must hear and determine the question, and remit the case with its opinion to the FMA.

(1) If the FMA has issued a warning about any matter relating to a relevant person, the FMA may, by written notice served on the relevant person, order the relevant person, or all or any associated persons of the relevant person, or both to do 1 or more of the following:

• (a) prominently disclose a copy of the warning on 1 or more Internet sites maintained by or on behalf of the relevant person or any of those associated persons:

• (b) in the case of a relevant person that is an issuer, ensure that—

  • (i) a registered prospectus specified in the order is promptly amended so that it contains a copy of the warning in a prominent position:

  • (ii) every investment statement of the kind that is specified in the order and that is distributed by or on behalf of the issuer contains a copy of the warning in a prominent position or is accompanied by a copy of the warning:

• (c) ensure that any offer document of the kind that is specified in the order contains, or is amended to contain, a copy of the warning in a prominent position or is accompanied by a copy of the warning:

• (d) ensure that any document of the kind that is specified in the order and that is required by any provision of the financial markets legislation to be given by the relevant person, or any of those associated persons, to another person contains, or is amended to contain, a copy of the warning in a prominent position or is accompanied by a copy of the warning.

(2) The FMA may make an order under subsection (1) on the terms and conditions (if any) that it thinks fit.

(3) If an order under subsection (1) extends to associated persons of the relevant person, the order may require—

• (a) all, or any specified class or classes, of the associated persons to comply with the order (including associated persons that may be incorporated or formed after the date of the order); and

• (b) the relevant person to provide a copy of the order to all or any of those associated persons.

(4) For the purpose of subsection (3), the order is not required to refer to the associated persons by name.

(5) The FMA may exercise a power under subsection (1) only if—

• (a) the FMA has had regard to whether exercising the power contributes to its function of promoting the confident and informed participation of businesses, investors, and consumers in the financial markets; and

• (b) the FMA gives the relevant person at least 3 working days' written notice of the following matters before the FMA exercises the power:

  • (i) that the FMA may make an order under subsection (1); and

  • (ii) the reasons why it is considering exercising that power; and

• (c) the FMA gives the relevant person or the relevant person's representative an opportunity to make written submissions and to be heard on the matter within that notice period.

(6) The FMA may—

• (a) vary an order made under subsection (1) in the same way as it may make the order:

• (b) revoke an order made under subsection (1) if it is satisfied that it should not continue in force.

(7) In this section and section 51,—

• (a) relevant person means—

  • (i) a person who is or has been a financial markets participant; or

  • (ii) a person who is or has engaged in conduct that involves dealings in securities:

• (b) a person (A) is an associated person of a relevant person if—

  • (i) A and the relevant person are associated persons within the meaning of section 2(1) of the Securities Act 1978; or

  • (ii) A and the relevant person are acting jointly or in concert; or

  • (iii) A acts, or is accustomed to act, in accordance with the wishes of the relevant person; or

  • (iv) the relevant person is a director or senior manager of A (within the meaning of those terms in section 4 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 but applied even if A is not a financial service provider); or

  • (v) A and the relevant person are related bodies corporate (within the meaning of section 5B(2) of the Securities Markets Act 1988):

• (c) offer document means a document that contains or refers to an offer to acquire or dispose of securities:

• (d) issuer, registered prospectus, investment statement, offer, and distributed have the same meaning as in section 2(1) of the Securities Act 1978.

(1) If the FMA makes an order under section 49,—

• (a) it must, immediately after exercising the power, give notice on its Internet site of—

  • (i) the reasons for making the order; and

  • (ii) the terms and conditions of the order (if any); and

  • (iii) any other information the FMA thinks relevant in the circumstances; and

• (b) it may give public notice by any other means of the matters in paragraph (a); and

• (c) it may notify any other person of the matters in paragraph (a).

(2) If the FMA varies or revokes an order under section 49,—

• (a) it must, immediately after exercising the power, give notice on its Internet site of—

  • (i) the reasons for the variation or revocation; and

  • (ii) the terms and conditions of the variation (if any); and

  • (iii) any other information the FMA thinks relevant in the circumstances; and

• (b) it may give public notice by any other means of the matters in paragraph (a); and

• (c) it may notify any other person of the matters in paragraph (a).

(1) Every relevant person to whom an order under section 49 applies commits an offence if the relevant person refuses or fails, without reasonable excuse, to comply with the order.

(2) If an order under section 49 applies to an associated person of a relevant person, the associated person commits an offence if the associated person—

• (a) knew, or ought reasonably to have known, that the order applied to the associated person; and

• (b) refuses or fails, without reasonable excuse, to comply with the order.

(3) Every person who commits an offence against subsection (1) or (2) is liable on summary conviction to a fine not exceeding $300,000.

(1) The FMA may, in accordance with section 53, authorise any person to exercise any of the powers under section 25(1)(a) to (c) if exercising that power is for the purpose of—

• (a) this Act or any Act listed in Schedule 1 or any enactment made under any of those Acts; or

• (b) complying with the request of an overseas regulator under section 31 or otherwise co-operating with an overseas regulator.

(2) An authorisation under subsection (1) may relate to a particular case, or a class or classes of cases, specified by the FMA.

(3) For the purposes of subsection (1), a notice served under section 25(1)(a) to (c) may require the information or documents (as the case may be) to be supplied or produced to a person authorised under subsection (1) (rather than to the FMA).

(4) The fact that any person authorised by the FMA exercises, or attempts to exercise, any of the powers in section 25(1)(a) to (c) is sufficient evidence that the exercise of the power has been authorised by the FMA unless there is evidence to the contrary.

(5) Section 73 of the Crown Entities Act 2004 does not limit this section.

(1) The FMA must not authorise a person under section 52 unless the FMA is satisfied that the person is suitably qualified or trained, or the person is a member of a class of persons who are suitably qualified or trained, to exercise a power under section 25(1)(a) to (c).

(2) A person authorised by the FMA to exercise a power under section 25(1)(a) to (c) must, if requested at the time of exercising the power, produce evidence of that person's authority to exercise the power.

(1) A person authorised under section 52 must not publish or disclose to any other person any information or documents acquired in the course of exercising powers under section 25 except—

• (a) to the FMA; or

• (b) as directed by the FMA in accordance with section 59(3); or

• (c) in accordance with the Official Information Act 1982 or the Privacy Act 1993.

(2) A person authorised under section 52 who wilfully contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding $200,000.

Without limiting any other statutory protection from liability, no person is liable for any act done or omitted to be done by the person in the exercise or intended exercise of the person's powers under section 25 or 54 unless the person acts in bad faith.

(1) Every person has the same privileges in relation to providing information and documents to, and answering questions before, the FMA, a member or an employee or a delegate of the FMA, or a person authorised under section 52, as witnesses have in proceedings before a court.

(2) If a power under section 25 or the FMA's power to receive evidence is exercised for the purposes of complying with a request from an overseas regulator under section 31 or otherwise co-operating with an overseas regulator, the person in respect of whom the power is exercised has the privilege against self-incrimination referred to in section 60 of the Evidence Act 2006 applied with all necessary modifications as if the reference to an offence under New Zealand law were a reference to an offence under foreign law.

(3) Subsection (2) does not limit any other privilege that the person may have.

(4) Every person appearing as counsel before the FMA, or a member or an employee or a delegate of the FMA, has the same privileges as counsel have in proceedings before a court.

(1) If a person commences a proceeding in any court in respect of the exercise of any powers conferred by section 25, until a final decision in relation to the proceeding is given,—

• (a) the powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and

• (b) no person is excused from fulfilling his or her obligations under that section by reason of the proceeding.

(2) However, an interim order may be made by the High Court overriding the effect of subsection (1), but only if the High Court is satisfied that—

• (a) the applicant has established a prima facie case that the exercise of the power in question is unlawful; and

• (b) the applicant would suffer substantial harm from the exercise or discharge of the power or obligation; and

• (c) if the power or obligation is exercised or discharged before a final decision is made in the proceeding, none of the remedies specified in subsection (3), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and

• (d) the terms of that order do not unduly hinder or restrict the FMA in performing or exercising its functions, powers, or duties under this Act or any provision of the financial markets legislation.

(3) The remedies are as follows:

• (a) any remedy that the High Court may grant in making a final decision in relation to the proceeding (for example, a declaration):

• (b) any damages that the applicant may be able to claim in concurrent or subsequent proceedings:

• (c) any opportunity that the applicant may have, as defendant in a proceeding, to challenge the admissibility of any evidence obtained as a result of the exercise or discharge of the power or obligation.

(1) This section applies in any case where it is declared, in a final decision given in any proceedings in respect of the exercise of any powers conferred by section 25, that the exercise of any powers conferred by that section is unlawful.

(2) If this section applies, to the extent to which the exercise of those powers is declared unlawful, the FMA must ensure that, immediately after the decision of the court is given,—

• (a) any information obtained as a consequence of the exercise of powers declared to be unlawful and any record of that information are destroyed; and

• (b) any documents, or extracts from documents, obtained as a consequence of the exercise of powers declared to be unlawful are returned to the person previously having possession of them, or previously having them under his or her control, and any copies of those documents or extracts are destroyed; and

• (c) any information derived from or based on such information, documents, or extracts is destroyed.

(3) However, the court may, in the court’s discretion, order that any information, record, or copy of any document or extract from a document may, instead of being destroyed, be retained by the FMA subject to any terms and conditions that the court imposes.

(4) No information, and no documents or extracts from documents, obtained as a consequence of the exercise of any powers declared to be unlawful, and no record of any such information or document,—

• (a) are admissible as evidence in any civil proceedings unless the court hearing the proceedings in which the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining the evidence:

• (b) are admissible as evidence in any criminal proceedings if the evidence is excluded under section 30 of the Evidence Act 2006:

• (c) may otherwise be used in connection with the exercise of any power conferred by this Act or any provision of the financial markets legislation unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence.

(1) This section applies to the following information and documents:

• (a) information and documents supplied or disclosed to, or obtained by, the FMA under this Act or any financial markets legislation:

• (b) information and documents supplied or disclosed to, or obtained by, a person authorised under section 52 (an authorised person) under subpart 1:

• (c) information derived from information and documents referred to in paragraph (a) or (b).

(2) However, this section does not apply to information and documents to which section 23 of the Corporations (Investigation and Management) Act 1989 applies.

(3) The FMA must not publish or disclose, or direct an authorised person to publish or disclose, any information or document to which this section applies unless—

• (a) the information or document is available to the public under any enactment or is otherwise publicly available; or

• (b) the information is in a statistical or summary form; or

• (c) the publication or disclosure of the information or document is for the purposes of, or in connection with, the performance or exercise of any function, power, or duty conferred or imposed on the FMA by this Act or any other enactment; or

• (d) the publication or disclosure of the information or document is to a law enforcement or regulatory agency under subpart 2; or

• (e) the publication or disclosure of the information or document is to an overseas regulator under subpart 2 or otherwise for the purpose of assisting the FMA to co-operate with an overseas regulator; or

• (f) the publication or disclosure of the information or document is to a person who the FMA is satisfied has a proper interest in receiving the information or document; or

• (g) the publication or disclosure of the information or document is with the consent of the person to whom the information or document relates or of the person to whom the information or document is confidential.

(4) The FMA must not publish or disclose, or direct an authorised person to publish or disclose, any information or document under subsection (3)(f) unless the FMA is satisfied that appropriate protections are or will be in place for the purpose of maintaining the confidentiality of the information or document (in particular, information that is personal information within the meaning of the Privacy Act 1993).

(1) The FMA may, by written notice to a person to whom any information or document is published or disclosed under section 59(3)(c), (f), or (g), impose any conditions in relation to the publication, disclosure, or use of the information or document by the person.

(2) The FMA must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.

(3) Conditions imposed under subsection (1) may include, without limitation, conditions relating to—

• (a) maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 1993):

• (b) the storing of, the use of, or access to anything provided:

• (c) the copying, returning, or disposing of copies of documents provided.

(4) A person who refuses or fails, without reasonable excuse, to comply with any conditions commits an offence and is liable on summary conviction to a fine not exceeding $200,000.

(1) Every person commits an offence who—

• (a) refuses or fails, without reasonable excuse, to comply with a notice under section 25; or

• (b) in purported compliance with a notice under section 25, supplies information, or produces a document, or gives evidence, knowing it to be false or misleading; or

• (c) resists, obstructs, or delays a person acting under a warrant issued under section 29; or

• (d) having been required under a notice under section 25(1)(d) to appear before the FMA or a specified person referred to in that paragraph, for the purposes of any matter, without reasonable excuse—

  • (i) refuses or fails to appear; or

  • (ii) refuses to take an oath or affirmation as a witness; or

  • (iii) refuses to answer any question; or

  • (iv) refuses or fails to provide any document or information that the person is required to provide; or

• (e) deceives or attempts to deceive or knowingly misleads the FMA or a specified person referred to in section 25(5) in providing evidence to either of them; or

• (f) wilfully acts in contravention of any order made by the FMA under section 44.

(2) A body corporate commits an offence under subsection (1)(d) if it is required to appear under section 25(1)(d) and, without reasonable excuse, an authorised representative on its behalf refuses or fails to appear, refuses to take an oath or affirmation as a witness, refuses to answer any question, or refuses or fails to provide any document or information that the body corporate is required to provide.

(3) Every person who commits an offence against subsection (1) is liable on summary conviction to a fine not exceeding $300,000.

(1) A notice served by the FMA for the purposes of this Part is sufficiently served if it is—

• (a) in writing; and

• (b) signed by 1 or more of the members or by any person purporting to act with the authority of the FMA; and

• (c) served in accordance with section 63.

(2) All documents purporting to be signed by or on behalf of the FMA must, in all courts and in all proceedings under this Act, be treated as having been so signed with due authority unless the contrary is proved.

(1) Any notice or other document required or authorised to be served on any person for the purposes of this Part may—

• (a) be served on an individual—

  • (i) by delivering it personally or by an agent (such as a courier) to the person; or

  • (ii) by sending it by post addressed to the person at the person's usual or last known place of residence or business; or

  • (iii) by sending it by fax or email to the person's fax number or email address provided by the person for the purpose; or

  • (iv) in any other manner a District Court Judge directs:

• (b) be served on a company, within the meaning of the Companies Act 1993, in a manner provided for in section 388 of that Act:

• (c) be served on an overseas company in a manner provided for in section 390 of the Companies Act 1993:

• (d) be served on any other body corporate in a manner in which it could be served if the body corporate were a company within the meaning of the Companies Act 1993.

(2) In the absence of proof to the contrary, a notice, document, or notification sent to a person in accordance with—

• (a) subsection (1)(a)(ii) must be treated as having been served on the person when it would have been delivered in the ordinary course of post; and, in proving the delivery, it is sufficient to prove that the letter was properly addressed and posted:

• (b) subsection (1)(a)(iii) must be treated as having been served on the person on the second working day after the day on which it is sent.

(3) Section 392 of the Companies Act 1993 applies for the purposes of subsection (1)(b) to (d).

(4) If a person is absent from New Zealand, a notice served on the person's agent in New Zealand in accordance with subsection (1) must be treated as having been served on the person.

(5) If a person has died, the notice may be served, in accordance with subsection (1), on his or her personal representative.

This Part does not limit any power that the FMA or any other person has under any other enactment.

(1) No court or other person may require a member or an employee of the FMA, any delegate of the FMA, any expert appointed by the FMA, any person authorised under section 52, or any other person present at a meeting of the FMA to—

• (a) give evidence in court or in any proceedings of a judicial nature of anything coming to his or her knowledge in connection with the operations of the FMA; or

• (b) make discovery of a document or produce a document for inspection in court or in any proceedings of a judicial nature if the document was provided or obtained in connection with the operations of the FMA.

(2) Subsection (1) does not apply to—

• (a) proceedings in respect of the falsity of any testimony; or

• (b) proceedings to which the FMA is a party (including where the FMA is acting under subpart 3); or

• (c) proceedings in respect of—

  • (i) an offence under section 51 or 61; or

  • (ii) an offence against section 78, 78A(1), 105, 105A, or 105B of the Crimes Act 1961; or

  • (iii) the offence of conspiring to commit an offence against any of those sections of the Crimes Act 1961; or

  • (iv) the offence of attempting to commit an offence against any of those sections of the Crimes Act 1961.

(3) This section does not limit the application of the Official Information Act 1982.

Nothing in this Part limits the Privacy Act 1993.

(1) The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

• (a) requiring the payment to the FMA of fees and charges—

  • (i) by financial markets participants in connection with the performance or exercise by the FMA of any function, power, or duty under this Act or any other enactment:

  • (ii) on an application or a request to the FMA to perform or exercise any function, power, or duty under this Act or any other enactment:

• (b) prescribing the amounts of those fees and charges or the manner in which those fees and charges are to be calculated:

• (c) authorising the FMA to require payment of any costs incurred by the FMA in connection with an application or a request referred to in paragraph (a)(ii).

(2) Any Order in Council made under subsection (1) may authorise the FMA to refund or waive, in whole or in part and on any conditions as may be prescribed, payment of any fee, charge, or cost payable in relation to any person or class of persons.

(3) The FMA may refuse to perform or exercise a function, power, or duty until the prescribed fee, charge, or cost is paid.

(4) Any fee, charge, or cost payable to the FMA is recoverable by the FMA in any court of competent jurisdiction as a debt due to the FMA.

(1) Every person that is included in a prescribed class of specified persons must pay to the Crown, or a prescribed person on behalf of the Crown, a levy prescribed by regulations.

(2) In this section and section 69, specified persons means—

• (a) financial markets participants; and

• (b) every other person registered or incorporated, or who makes an application for the registration or incorporation of a person, under an Act referred to in Part 2 of Schedule 1.

(3) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levies.

(4) Levies must be prescribed on the basis that the following costs should be met fully out of the levies:

• (a) a portion of the costs of the FMA in performing or exercising its functions, powers, and duties under this Act and any other enactment, where the size of the portion to be met by levies under this Act is determined by the Minister; and

• (b) the costs of collecting the levy money.

(5) Levies may be prescribed on the basis that any actual cost that could have been, but has not been, recovered as a levy shortfall for a year may be recovered (along with any financing charge) over any period of up to 5 years.

(6) The regulations may—

• (a) specify the class or classes of specified persons that are required to pay a levy:

• (b) specify the amount of levies, or method of calculating or ascertaining the amount of levies:

• (c) include in levies, or provide for the inclusion in levies of, any shortfall in recovering the actual costs:

• (d) refund, or provide for refunds of, any over-recovery of the actual costs:

• (e) provide for the payment and collection of levies:

• (f) provide different levies for different classes of specified persons:

• (g) specify the financial year or part financial year to which a levy applies, and apply that levy to that financial year or part financial year and each subsequent financial year until the levy is revoked or replaced:

• (h) for the first financial year to which a levy applies, include in a levy amount or method the costs relating to establishing the FMA, disestablishing the Securities Commission, and the FMA performing or exercising its functions, duties, and powers under any enactment:

• (i) require payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:

• (j) provide for waivers or refunds of the whole or any part of a levy for any case or class of cases.

(7) If a person is in 2 or more classes of specified persons in respect of which different levies have been prescribed, the person must pay each of those levies (unless the regulations provide otherwise).

(8) A levy for a financial year that starts after the FMA begins to carry out any additional function under any enactment may recover the costs of performing that additional function, irrespective of the fact that the regulations may be made and come into effect after the start of the financial year.

(9) The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the FMA, or to any other person prescribed for the purposes of this subsection, on behalf of the Crown.

(10) The FMA, or any other person prescribed for the purposes of this subsection, must ensure that each levy payment is paid into a Crown Bank Account and is separately accounted for.

(1) The FMA must, before submitting a request to the Minister seeking an appropriation of public money for the following year, or any change to an appropriation for the current year, that relates to costs that are intended to be recovered by way of levies under section 68, consult about that request with—

• (a) the persons or organisations that the FMA considers are able to represent the views of those specified persons who are liable to pay a levy under that section; and

• (b) any other representatives of persons whom the FMA believes to be significantly affected by a levy.

(2) Consultation under subsection (1) must include consultation relating to the portion of the costs of the FMA that should be met by the levies.

(3) The FMA must, at the time when the request is submitted, report to the Minister on the outcome of that consultation.

(4) This section applies to requests in respect of the financial year beginning on 1 July 2013 and later financial years.

(5) A failure to comply with this section does not affect the validity of any regulations made under section 68.

In this subpart, unless the context otherwise requires,—

(1) The Commission is disestablished.

(2) The members of the Commission cease to hold office at the close of the day before the commencement date.

(3) For the purpose of completing or deciding any inquiry, application, or matter that has been heard or considered (in whole or in part) before the commencement date, the board of the FMA may delegate any of the functions or powers of the FMA or the board in accordance with sections 73 to 76 of the Crown Entities Act 2004 to 1 or more former members of the Commission as if those former members were referred to in section 73(1) of that Act.

(4) Subsection (3) does not limit the power of the board of the FMA to make any other delegation in accordance with sections 73 to 76 of the Crown Entities Act 2004.

(1) On the commencement date,—

• (a) the functions, duties, and powers of the Commission under any enactment vest in the FMA, except as specifically provided otherwise in this Act, but only to the extent that those functions, duties, and powers are consistent with the functions, duties, and powers of the FMA under this Act and any other enactment (subject to subsection (4)); and

• (b) all property belonging to the Commission vests in the FMA; and

• (c) all information and documents held by the Commission are held by the FMA; and

• (d) all money payable to or by the Commission becomes payable to or by the FMA; and

• (e) all rights, liabilities, contracts, entitlements, and engagements of the Commission become the rights, liabilities, contracts, entitlements, and engagements of the FMA; and

• (f) subject to section 74, every employee of the Commission becomes an employee of the FMA on the same terms and conditions as applied immediately before he or she became an employee of the FMA; and

• (g) anything done, or omitted to be done, or that is to be done, by or in relation to the Commission is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the FMA; and

• (h) the commencement, continuation, or enforcement of proceedings by or against the Commission may instead be commenced, continued, or enforced by or against the FMA without amendment to the proceedings; and

• (i) the completion of a matter or thing that would, but for this section, have been completed by the Commission may be completed by the FMA.

(2) The transfer of information from the Commission to the FMA under subsection (1)(c) does not constitute an action that is an interference with the privacy of an individual under section 66 of the Privacy Act 1993.

(3) The disestablishment of the Commission does not, by itself, affect any of the following matters:

• (a) any decision made, or anything done or omitted to be done, by the Commission in relation to the performance or exercise of its functions, powers, or duties under any enactment:

• (b) any proceedings commenced by or against the Commission:

• (c) any other matter or thing arising out of the Commission’s performance or exercise, or purported performance or exercise, of its functions, powers, or duties under any enactment.

(4) Despite subsection (1)(a), it is a function of the FMA to perform or exercise any functions, powers, or duties of the Commission that are necessary or desirable for it to perform or exercise, on a temporary basis, for the purpose of effectively managing the transition of functions from the Commission to the FMA.

(1) A reference (express or implied) to the Commission in any enactment (other than this Act), or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date, must be read as a reference to the FMA.

(2) A reference (express or implied) to an officer or employee of the Commission in any enactment, or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date must be read as a reference to—

• (a) the corresponding employee of the FMA; or

• (b) if there is no corresponding employee, any other employee of the FMA as the FMA thinks fit.

(3) This section—

• (a) applies unless the context otherwise requires; and

• (b) is subject to subpart 3 and the Securities Amendment Act 2011.

(1) The terms and conditions of employment of a transferred employee immediately before the commencement date continue to apply in relation to that employee until—

• (a) those terms and conditions are varied by agreement between the transferred employee and the FMA; or

• (b) the transferred employee accepts a subsequent appointment with the FMA.

(2) For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of a transferred employee,—

• (a) the employment agreement of that employee is to be treated as unbroken; and

• (b) the employee’s period of service with the Commission, and every other period of service of that employee that is recognised by the Commission as continuous service, is to be treated as a period of service with the FMA.

(3) To avoid doubt, the employment of a transferred employee by the FMA does not constitute new employment for the purposes of the KiwiSaver Act 2006.

(4) A transferred employee is not entitled to receive any payment or benefit from the Commission or the FMA on the grounds that the person's position in the Commission has ceased to exist or the person has ceased to be an employee of the Commission as a result of the transfer to the FMA.

(5) This section overrides Part 6A of the Employment Relations Act 2000.

Nothing effected or authorised by sections 71 to 74—

• (a) places the Commission, the FMA, or any other person in breach of contract or confidence, or makes any of them liable for a civil wrong; or

• (b) entitles a person to terminate or cancel a contract or an arrangement, or to accelerate the performance of an obligation, or to impose a penalty or an increased charge; or

• (c) places the Commission, the FMA, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of property or the disclosure of information; or

• (d) releases a surety from an obligation; or

• (e) invalidates or discharges a contract or surety.

(1) The Registrar-General of Land or any other person charged with keeping books or registers is not required to change the name of the Commission to the FMA in the books or registers, or in a document, solely because of the provisions of this Act.

(2) If the FMA presents an instrument referred to in subsection (3) to a Registrar or another person, the presentation of that instrument by the FMA is, in the absence of proof to the contrary, sufficient evidence that the property is vested in the FMA.

(3) For the purposes of this section, the instrument need not be an instrument of transfer, but must—

• (a) be executed or purport to be executed by the FMA; and

• (b) relate to a property held by the Commission immediately before the commencement date; and

• (c) be accompanied by a certificate by the FMA that the property became vested in the FMA by virtue of the provisions of this Act.

(1) The office of the Government Actuary is disestablished.

(2) This section is subject to section 80.

(1) On the commencement date, in respect of any function, duty, or power of the Government Actuary under any enactment for which the FMA is the successor,—

• (a) all information and documents held by the Government Actuary are held by the FMA; and

• (b) anything done, or omitted to be done, or that is to be done, by or in relation to the Government Actuary is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the FMA; and

• (c) the commencement, continuation, or enforcement of proceedings by or against the Government Actuary may instead be commenced, continued, or enforced by or against the FMA without amendment to the proceedings; and

• (d) the completion of a matter or thing that would, but for this section, have been completed by the Government Actuary may be completed by the FMA.

(2) On the commencement date, in respect of any function, duty, or power of the Government Actuary under any enactment for which the FMA is not the successor,—

• (a) all information and documents held by the Government Actuary are held by the department for the time being responsible for the administration of the Superannuation Schemes Act 1989 (the department); and

• (b) anything done, or omitted to be done, or that is to be done, by or in relation to the Government Actuary is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the chief executive of the department; and

• (c) the commencement, continuation, or enforcement of proceedings by or against the Government Actuary may instead be commenced, continued, or enforced by or against the chief executive of the department without amendment to the proceedings; and

• (d) the completion of a matter or thing that would, but for this section, have been completed by the Government Actuary may be completed by the chief executive of the department.

(3) The transfer of information from the Government Actuary to the FMA under subsection (1)(a), or from the Government Actuary to the department under subsection (2)(a), does not constitute an action that is an interference with the privacy of an individual under section 66 of the Privacy Act 1993.

(4) The disestablishment of the office of the Government Actuary does not, by itself, affect any of the following matters:

• (a) any decision made, or anything done or omitted to be done, by the Government Actuary in relation to the performance or exercise of his or her functions, powers, or duties under any enactment:

• (b) any proceedings commenced by or against the Government Actuary:

• (c) any other matter or thing arising out of the Government Actuary’s performance or exercise, or purported performance or exercise, of his or her functions, powers, or duties under any enactment.

(5) This section is subject to section 80.

(1) A reference (express or implied) to the Government Actuary in any enactment (other than this Act), or in any instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the commencement date, must be read as a reference to the successor.

(2) This section—

• (a) applies unless the context otherwise requires; and

• (b) is subject to subpart 3 and section 80.

(1) Despite section 77, the office of the Government Actuary continues until the close of 30 September 2011 for the purpose of the Government Actuary performing any function or duty, or exercising any power, in relation to the Government Superannuation Fund under any of the following enactments as in force immediately before their amendment by section 82 of this Act:

• (a) Government Superannuation Fund Act 1956:

• (b) Government Superannuation Fund Amendment Act 1969:

• (c) Government Superannuation Fund (Ceasing Contributions) Regulations 1995:

• (d) Government Superannuation Fund Regulations 1995.

(2) To the extent required by subsection (1), until the close of 30 September 2011,—

• (a) sections 78 and 79 do not apply; and

• (b) the enactments described in subsection (1) continue to apply as if they had not been amended by section 82 of this Act.

(1) An employee is not entitled to receive any payment or other benefit on the ground that his or her position in the Ministry of Economic Development has ceased to exist if—

• (a) the position ceases to exist as a result of a change in the functions of the Ministry of Economic Development or the Registrar of Companies in connection with the establishment of the FMA; and

• (b) the person is offered a suitable alternative position by the FMA; and

• (c) the offer is made—

  • (i) in the period between the date on which this Act receives the Royal assent and the date that is 6 months after the commencement date; and

  • (ii) for employment that commences on or after the commencement date.

(2) This section overrides Part 6A of the Employment Relations Act 2000.

The enactments specified in Schedule 3 are amended in the manner specified in that schedule.

(1) Every person who, before the commencement of this section, was approved by a Minister under section 4(2) of the Unit Trusts Act 1960 must, after that commencement, be treated as having been approved by the FMA under that provision.

(2) If, before the commencement of this section, an application has been made by a Minister under section 19(1) of the Unit Trusts Act 1960 and the court has not yet made a decision on the application, the FMA may continue with the application.

(3) If, before the commencement of this section, an inspector is appointed by a Minister under section 21 of the Unit Trusts Act 1960, the inspector—

• (a) may continue the investigation as if section 21 had not been amended by this Act; but

• (b) must make his or her report to the FMA rather than the Minister.

(4) A consent under section 25(3) of the Unit Trusts Act 1960 given before the commencement of this section remains valid despite the amendment made to that provision by this Act.

(1) The provisions of the Acts specified in Part 1 of Schedule 4 are amended by omitting “Securities Commission” in each place where it appears and substituting in each case “Financial Markets Authority”.

(2) The provisions of the regulations specified in Part 2 of Schedule 4 are amended by omitting “Securities Commission” in each place where it appears and substituting in each case “Financial Markets Authority”.

(3) The provisions of the Acts specified in Part 3 of Schedule 4 are amended by omitting “Commission” in each place where it appears and substituting in each case “FMA”.

(4) The provisions of the regulations specified in Part 4 of Schedule 4 are amended by omitting “Commission” in each place where it appears and substituting in each case “FMA”.

(5) The provisions of the Acts specified in Part 5 of Schedule 4 are amended by omitting “Commission's” in each place where it appears and substituting in each case “FMA's”.

(1) The provisions of the Acts specified in Part 6 of Schedule 4 are amended by omitting “Government Actuary” in each place where it appears and substituting in each case “FMA”.

(2) The provisions of the regulations specified in Part 7 of Schedule 4 are amended by omitting “Government Actuary” in each place where it appears and substituting in each case “FMA”.