A supervisor in respect of a debt security must hold a licence that covers supervision of the security.

A supervisor in respect of a registered scheme must hold a licence that covers supervision of the scheme.

A statutory supervisor in respect of a retirement village must hold a licence that covers supervision of the retirement village.

A contravention of this section may give rise to a pecuniary penalty under section 41.

A licensee must comply with—

A person must not represent that the person is licensed to be a supervisor in respect of a debt security, registered scheme, or retirement village if the person does not hold a licence that covers supervision of the debt security, registered scheme, or retirement village.

A contravention of this section may give rise to a pecuniary penalty under section 41.

Section 6 does not apply to a person appointed as an FMA appointee under section 22 or 37.

The FMA may license a person to be 1 or more of the following:

A licence may cover supervision of all debt securities, all registered schemes, all retirement villages, or any 1 or more of the following:

A class may be defined (to include or exclude supervision of a debt security, registered scheme, or retirement village) in any way, including, without limitation, by reference to—

The FMA may, on granting or varying a licence, impose conditions on the licence.

The FMA may impose conditions that—

Subsection (2) does not limit subsection (1).

Examples of the conditions that the FMA may impose on a licence under subsection (2)(a) include, without limitation, conditions—

A licence must be issued for a fixed period of no more than 8 years.

A licence takes effect on the date stated in the licence.

Subject to section 19(2), a licence expires on the earlier of—

A licence must state the following information:

If the FMA issues a licence, the FMA must send the licence to the licensee.

If the FMA varies a licence, the FMA must send a replacement licence to the licensee.

If the FMA cancels a licence, the FMA must notify the former licensee.

In addition to the requirements of subsections (1) to (3), the FMA must send details of the licence or the replacement licence or notification of the cancellation (as the case may be) to—

The FMA may publicly notify any details about a licence (including the information referred to in section 13 and details relating to the variation or cancellation of a licence) as it thinks fit.

A person may apply to the FMA—

An application must be—

For the purpose of making a decision on an application, the FMA may require the applicant to supply information in addition to that contained in the application and may, at any time, require the applicant to verify that 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.

The FMA may issue or vary a licence only if the FMA is satisfied that, having regard to any conditions imposed on the licence, the applicant is capable of effectively performing (or will, after the variation, be capable of effectively performing)—

Despite subsection (1), the FMA may not issue a licence unless the FMA is satisfied that the applicant meets the following requirements:

Before making a decision under subsection (1), the FMA must assess the following matters:

In this section,—

The FMA may cancel a licence on the written application of the licensee.

Before cancelling a licence under subsection (1), the FMA must be satisfied that the licensee does not hold an appointment as a supervisor.

Before making a decision under section 16(1), the FMA must consult with, and take into account the views of,—

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—

After making a decision on the application under section 16(1), the FMA must notify the applicant, and any person supervised by the applicant, in writing of—

An applicant may appeal to the High Court no later than 20 working days, or such further period as the court may allow, after receiving written notice of the decision under section 18(3).

If a supervisor in respect of a debt security, registered scheme, or retirement village lodges an appeal against a decision not to issue a new licence that covers supervision of the debt security, scheme, or retirement village, the court may extend the validity of the supervisor’s current licence, to the extent that it covers supervision of the debt security, scheme, or retirement village, until the appeal has been determined or withdrawn.

A decision against which an appeal is lodged remains valid pending the determination of the appeal unless the court orders otherwise.

On appeal, the court may—

The expiry of the licence of a person who holds an appointment as a supervisor does not, of itself, terminate the appointment (but, if the person continues to hold the appointment and does not obtain a new licence, the person breaches section 6).

This section is for the avoidance of doubt.

A licensee appointed as a supervisor in respect of a debt security, registered scheme, or retirement village must, between 9 and 12 months before the expiry date of the licence,—

If the licensee makes an application referred to in subsection (1)(a), the FMA must make a decision on the application no later than 3 months before the expiry date.

In this section, expiry date means the date on which the fixed period for which a licence is issued under section 16 ends.

This section applies if—

The FMA may,—

Before making an appointment under subsection (2)(b) or (c), the FMA must, if the FMA considers it practicable to do so, consult the relevant issuer or operator.

The FMA’s ability to set preconditions on requests to it under subsection (1)(b) includes (without limitation) a discretion to set preconditions that satisfy the FMA that—

The FMA must, as soon as practicable after making the appointment, notify the issuer or the operator of the appointment.

The issuer or operator must reimburse the FMA for—

An amount payable under subsection (5) must be paid by the date specified for payment in an invoice given to the issuer or operator by the FMA and is recoverable as a debt due to the FMA.

Subject to subsection (7), the FMA appointee is bound by the terms of the governing document relating to the debt security, registered scheme, or retirement village.

The FMA may approve a change to those terms (including a change that increases the charges payable to the FMA appointee) during the period of the FMA appointee’s appointment if—

The power in subsection (7) may be exercised to approve a change to the terms of the governing document despite anything to the contrary in the document.

Before the appointment of the FMA appointee under subsection (2) finally comes to an end (taking into account any reappointment under subsection (2)(c)), the issuer or the operator must either—

Despite sections 6 and 16(2), the FMA may appoint, as an FMA appointee, any person (including a natural person) that the FMA considers appropriate in the circumstances, whether or not that person holds a licence.

If the FMA appointee does not hold a licence, the FMA appointee must, for the purposes of the Financial Markets Conduct Act 2013 and the Retirement Villages Act 2003, be treated as holding a licence that covers supervision of the debt security, registered scheme, or retirement village (as the case may be).

This section applies if—

For the purposes of subsection (1)(a), a licence is due to expire if—

This section also applies if an FMA appointee has been appointed by the FMA under section 22(2)(b) or (c).

If the issuer of the debt security or managed investment products, or the operator of the retirement village, appoints a person (the new appointee) as the supervisor in place of the existing appointee or the FMA appointee, and the new appointee accepts the appointment, the issuer or operator may remove the existing appointee or the FMA appointee by written notice to the existing appointee or the FMA appointee.

An appointment under subsection (4) must be made in accordance with the relevant governing document.

The issuer or operator must, as soon as practicable after giving the written notice, give a copy of the notice to the FMA.

The removal of the existing appointee takes effect on the date stated in, or calculated in accordance with, the notice.

But if the notice is given to the FMA appointee, the removal of the FMA appointee cannot take effect until at least 15 working days have passed since the date on which the notice was given to the FMA appointee.

Subsection (8) does not apply if the FMA appointee agrees in writing that the subsection does not apply.

The power in subsection (4) may be exercised to remove the existing appointee or FMA appointee despite anything to the contrary in the governing document.

Nothing in this section limits the issuer’s or operator’s power to remove the existing appointee apart from under this section.

The FMA appointee may, by giving notice in writing to the existing appointee, require the existing appointee to provide the FMA appointee, at the existing appointee’s expense, with all documents held by, or in the control of, the existing appointee that relate to the functions of the position to which the FMA appointee has been appointed.

The new appointee may, by giving notice in writing to the existing appointee or FMA appointee (person A), require person A to provide the new appointee, at person A’s expense, with all documents held by, or in the control of, person A that relate to the functions of the position to which the new appointee has been appointed.

A notice under this section—

An existing appointee or an FMA appointee to whom a notice is given under subsection (1) or (2) must comply with the notice.

A document provided pursuant to a notice under this section may be used only for the purpose of performing the functions of the position referred to in subsection (1) or (2).

A contravention of subsection (4) or (5) may give rise to a pecuniary penalty under section 41.

In this section,—

A licensee must deliver a report to the FMA—

The report must contain—

This section applies if a licensee believes that—

For the purposes of subsection (1)(b) and (c), the licensee must consider any matters notified by the FMA under sections 18(3)(c) and 30(5)(d).

The licensee must, as soon as practicable after the licensee forms the belief referred to in subsection (1), deliver a report to the FMA containing details of the belief and the licensee’s grounds for the belief.

This section applies if the FMA is satisfied that—

The FMA may, by written notice to the licensee, require the licensee to submit an action plan to the FMA.

The notice must—

The action plan must specify—

If a licensee submits an action plan, the FMA may—

If the FMA approves the action plan or amended action plan, the licensee must comply with the plan.

An action plan that has been approved by the FMA may be varied at any time by the licensee with the consent of the FMA.

If the FMA rejects a licensee’s action plan or amended action plan, the FMA may do either or both of the following:

A direction under subsection (1)(a) must specify—

The licensee must comply with the direction.

The FMA may, by written notice to a licensee, vary the licence—

The FMA may vary a licence only if the FMA gives the applicant—

Subject to subsection (4), the FMA must exercise the power to vary a licence so that (after the licence is varied) the FMA is satisfied that, having regard to any conditions imposed on the licence, the licensee is capable of effectively performing the functions of a supervisor in respect of debt securities or registered schemes, or of a statutory supervisor in respect of retirement villages, covered by the licence.

The FMA may not vary a licence so that the licence ceases to cover a supervised interest.

The notice under subsection (1) must state,—

A licensee who is dissatisfied with the FMA’s decision under section 30(1) may appeal to the High Court no later than 20 working days, or such further period as the court may allow, after receiving written notice of the decision.

A decision against which an appeal is lodged remains valid pending the determination of the appeal unless the court orders otherwise.

On appeal, the court may—

This section applies if a licensee—

The FMA may take 1 or more of the following steps:

To avoid doubt, a removal notice may apply to any supervised interest, whether or not the action plan or direction referred to in subsection (1) relates to that interest.

If the FMA varies a licence under subsection (2)(c) so that the licence ceases to cover a supervised interest, the FMA must give a removal notice under subsection (2)(b) that applies to the interest.

If the FMA cancels a licence, the FMA must give a removal notice under subsection (2)(b) that applies to every supervised interest.

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 removal notice must—

Despite subsection (1)(b), if the removal notice is given in relation to the cancellation of a licence, the final removal date must be no later than the date on which the cancellation takes effect.

The FMA must give a copy of the removal notice to every affected person at the same time as the notice is given to the licensee.

The removal of the existing appointee as supervisor in respect of an affected debt security or scheme, or as statutory supervisor of an affected retirement village, takes effect on the final removal date unless the existing appointee is removed from that appointment before that date (whether under section 38(1) or otherwise).

For the purposes of this section and sections 36 to 40,—

A variation notice must—

A cancellation notice must—

During the period beginning when a removal notice is given and ending when the existing appointee is removed from every appointment as supervisor in respect of an affected debt security or scheme, or as statutory supervisor in respect of an affected retirement village, the FMA may give a written direction to the existing appointee.

The direction must specify—

The existing appointee must comply with the direction.

To avoid doubt, a direction must not be inconsistent with the relevant governing document, but may require the appointee to seek specified amendments to the document.

A person who refuses or fails, without reasonable excuse, to comply with a direction under subsection (1) commits an offence and is liable on conviction to a fine not exceeding $300,000.

If an affected person does not remove the existing appointee by written notice under section 38(1) or otherwise appoint a person as the supervisor in place of the existing appointee before the final removal date, the FMA may appoint a person (the FMA appointee) to that position for a period of 6 months beginning on the final removal date.

If the FMA considers it necessary or desirable in the circumstances, the FMA may reappoint the FMA appointee (as an FMA appointee) to the position of supervisor for a further period that the FMA thinks fit (and a reappointment under this subsection may be made on 1 or more occasions).

Before making an appointment under subsection (1) or (1A), the FMA must, if the FMA considers it practicable to do so, consult the affected person.

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

The affected person must reimburse the FMA for—

An amount payable under subsection (4) must be paid by the date specified for payment in an invoice given to the affected person by the FMA and is recoverable as a debt due to the FMA.

The FMA appointee is bound by the terms of the governing document under which the existing appointee was appointed (subject to subsection (6)).

The FMA may approve a change to those terms (including a change that increases the charges payable to the FMA appointee) during the period of the FMA appointee’s appointment if—

The power in subsection (6) may be exercised to approve a change to the terms of the governing document despite anything to the contrary in the document.

Before the appointment of the FMA appointee under this section finally comes to an end (taking into account any reappointment under subsection (1A)), the affected person must either—

Despite sections 6 and 16(2), the FMA may appoint, as an FMA appointee, any person (including any natural person) that the FMA considers appropriate in the circumstances, whether or not that person holds a licence.

If the FMA appointee does not hold a licence, the FMA appointee must, for the purposes of the Financial Markets Conduct Act 2013 and the Retirement Villages Act 2003, be treated as holding a licence that covers supervision of the debt security, registered scheme, or retirement village (as the case may be).

If an affected person appoints a person (the new appointee) as the supervisor in place of the existing appointee or FMA appointee and the new appointee accepts the appointment, the affected person may remove the existing appointee or FMA appointee by written notice (the replacement notice) to the existing appointee or FMA appointee.

An appointment under subsection (1) must be made in accordance with the relevant governing document.

Despite subsections (1) and (2), if the affected person proposes to reappoint the existing appointee in place of the FMA appointee before the end of the period of the FMA appointee’s appointment, the removal of the FMA appointee takes effect only if the FMA consents in writing.

The affected person must, as soon as practicable after giving the replacement notice, give a copy of the notice to the FMA.

The removal of the existing appointee or FMA appointee takes effect on the date stated in, or calculated in accordance with, the replacement notice.

But if the replacement notice is given to the FMA appointee, the removal of the FMA appointee cannot take effect until at least 15 working days have passed since the date on which the notice was given to the FMA appointee.

Subsection (6) does not apply if the FMA appointee agrees in writing that the subsection does not apply.

The power in subsection (1) may be exercised to remove the existing appointee or FMA appointee despite anything to the contrary in the governing document.

Nothing in this section limits the affected person’s power to remove the existing appointee apart from under this section.

The FMA appointee may, by giving notice in writing to the existing appointee, require the existing appointee to provide the FMA appointee, at the existing appointee’s expense, with all documents held by, or in the control of, the existing appointee that relate to the functions of the position to which the FMA appointee has been appointed.

The new appointee may, by giving notice in writing to the existing appointee or FMA appointee (person A), require person A to provide the new appointee, at person A’s expense, with all documents held by, or in the control of, person A that relate to the functions of the position to which the new appointee has been appointed.

If the existing appointee is reinstated under section 40(4)(c), the existing appointee may, by giving notice in writing to the FMA appointee or new appointee (person B), require person B to provide the existing appointee, at person B’s expense, with all documents held by, or in the control of, person B that relate to the functions of the position.

A notice under this section—

An existing appointee, an FMA appointee, or a new appointee to whom a notice is given under any of subsections (1) to (3) must comply with the notice.

A document provided pursuant to a notice under this section may be used only for the purpose of—

A contravention of subsection (5) or (6) may give rise to a pecuniary penalty under section 41.

A licensee may appeal to the High Court against a decision to give a removal notice, variation notice, or cancellation notice under section 32(2)(b) to (d).

The licensee must lodge an appeal no later than 20 working days, or such further period as the court may allow, after receiving the removal notice, variation notice, or cancellation notice.

A decision against which an appeal is lodged remains valid pending the determination of the appeal unless the court orders otherwise.

On appeal, the court may—

An FMA appointee (whether appointed under section 22 or 37) has all of the powers and duties of the supervisor of the debt security, registered scheme, or retirement village that are conferred or imposed by the governing document or by law.

This section is subject to sections 22(7) and 37(6).

The High Court may, on application by the FMA, order a licensee or other person to pay a pecuniary penalty to the Crown if the court is satisfied that—

In determining whether or not to make a pecuniary penalty order and (if an order is to be made) the amount of the penalty to be imposed, the court must have regard to all relevant matters, including—

The maximum amount of a pecuniary penalty under this section is $600,000.

If conduct by a person constitutes a contravention of 2 or more provisions referred to in subsection (1) or licensee obligations, proceedings may be brought against that person for the contravention of any 1 or more of the provisions or obligations, but a person is not liable to more than 1 pecuniary penalty order for the same conduct.

The High Court may, on application by the FMA, a product holder, or a resident, order a licensee to pay compensation to any product holder or resident (the aggrieved person) if the court is satisfied that—

The court may make a compensation order whether or not any aggrieved person is a party to the proceeding.

The court may make any order it thinks just to compensate an aggrieved person in whole or in part for the loss or damage.

A licensee may be liable for both a pecuniary penalty order and a compensation order in respect of the same contravention of a licensee obligation.

Once criminal proceedings against a licensee for an offence relating to the contravention of a licensee obligation are determined, the High Court may not make a pecuniary penalty order against the licensee in respect of that contravention.

Once civil proceedings against a licensee for a pecuniary penalty order in respect of the contravention of a licensee obligation are determined, the licensee may not be convicted of an offence in respect of that contravention.

Proceedings under sections 41 and 42 are civil proceedings and the usual rules of the court and rules of evidence and procedure for civil proceedings apply (including the standard of proof).

In this section and in sections 41 and 42,—

The FMA may vary or cancel a direction given under section 29 or 36 if the FMA is satisfied that—

The FMA may vary or cancel the direction by giving written notice to the person to whom the direction is addressed.

No civil, criminal, or disciplinary proceedings may be brought against a supervisor in respect of a protected act.

No person may terminate the appointment of a supervisor by reason of a protected act.

No tribunal, body, or authority that has jurisdiction in respect of the professional conduct of a supervisor may make an order against, or do any act in relation to, the supervisor in respect of a protected act.

In this section, protected act, in relation to a supervisor, means an act of, or omission to act on the part of, the supervisor in compliance in good faith with a direction under section 29 or 36.

The Governor-General may, by Order in Council, on the recommendation of the Minister, make regulations for the following purposes:

Before making a recommendation under subsection (1), the Minister must consult the FMA.

Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

This section applies to—

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

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

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—

Subject to section 19(2), a temporary licence expires on the earliest of the following:

This Act applies in relation to a temporary licence in the same way as it applies in relation to a licence issued under section 16, except that a person who holds a temporary licence does not, during the currency of the temporary licence, have to comply with section 25.

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 15.

In this section, appointed—

In this section and in section 55, effective date has the meaning given in section 57 of the KiwiSaver Amendment Act 2011.

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.

In this section, existing KiwiSaver scheme has the meaning given in section 57 of the KiwiSaver Amendment Act 2011.

The FMA may, at any time before 1 October 2012,—

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

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

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

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.

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

A person does not commit an offence under section 8(1) or (2) if that person has been granted an exemption from section 6.

To avoid doubt, section 54 does not apply to a person if that person has been granted an exemption from section 6.

Sections 58 and 59 amend the Corporations (Investigation and Management) Act 1989.

Section 11 is repealed and the following section substituted:

Section 12 is repealed.

This section amends the Financial Markets Authority Act 2011.

Part 1 of Schedule 1 is amended by inserting the following item in its appropriate alphabetical order: “Securities Trustees and Statutory Supervisors Act 2011”.

This section amends the Financial Service Providers (Registration and Dispute Resolution) Act 2008.

Section 5(ia) is amended by inserting the following subparagraph after paragraph (ia)(i):

Schedule 2 is amended by adding the following item:

This section amends the KiwiSaver Act 2006.

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

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

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

Sections 64 to 66 amend the Retirement Villages Act 2003.

Section 37 is repealed.

Section 38(1) is amended by omitting “for the village” and substituting “who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011 that covers the village”.

Section 38(4) is repealed.

Section 39 is amended by adding the following subsection:

Sections 68 to 73 amend the Securities Act 1978.

Section 33(2)(a) is amended by inserting “who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011 that covers the security” after “a person”.

Section 33(3)(a) is amended by inserting “who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011 that covers the security” after “a person”.

Section 48 is repealed and the following section substituted:

Section 49(1) is amended by repealing paragraph (a) and substituting the following paragraph:

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

The following section is inserted after section 50B:

Section 60A(1)(b)(i) is amended by inserting “the Securities Trustees and Statutory Supervisors Act 2011,” after “the Securities Markets Act 1988,”.

Section 70(1)(g) is amended by omitting “; and, without limiting the generality of the foregoing, clauses specifying the duties and powers of trustees or statutory supervisors, as the case may be, and the obligations of issuers may be prescribed as clauses that are deemed to be contained in such deeds”.

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

This section amends the Securities Markets Act 1988.

Section 43F(1)(b)(i) is amended by inserting “the Securities Trustees and Statutory Supervisors Act 2011,” after “the Securities Act 1978,”.

This section amends the Takeovers Act 1993.

Section 44F(b)(i) is amended by inserting “the Securities Trustees and Statutory Supervisors Act 2011,” after “the Securities Act 1978,”.

This section amends the Trustee Companies Act 1967.

Section 7(2) is amended by repealing paragraph (m) and substituting the following paragraph:

Section 7(2) is amended by repealing paragraph (p) and substituting the following paragraph:

Sections 78 to 84 amend the Unit Trusts Act 1960.

Section 5 is repealed.

Section 8(b) is amended by omitting “eligible in accordance with section 5 of this Act” and substituting “who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011 that covers the unit trust”.

Section 10 is repealed and the following section substituted:

Section 12 is amended by inserting the following subsection after subsection (1):

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

Section 18(2) is amended by adding “and any directions given by the Financial Markets Authority under the Securities Trustees and Statutory Supervisors Act 2011”.

Section 18(4) is amended by omitting “the trusts or any rule of law” and inserting “the trusts, a direction of the Financial Markets Authority, any rule of law,”.

The following section is inserted after section 19:

Section 28(2) is amended by adding the following paragraphs:

Section 28 is amended by adding the following subsection: