“trust deed, in relation to a KiwiSaver scheme or a registered superannuation scheme,—

• “(a) means the trust deed that sets out the trusts governing the scheme, as amended from time to time; and

• “(b) includes a participation agreement and any other document that, under the terms of the relevant trust deed, forms part of or determines a term of the trust deed”.

“trustees,—

• “(a) in relation to a restricted KiwiSaver scheme, means the independent trustee referred to in section 116A and any other trustee who is designated or appointed as trustee of the scheme under the trust deed or the successor of that person; and

• “(b) in relation to any other KiwiSaver scheme, means the person who is designated or appointed as trustee of the scheme under the trust deed or the successor of that person; and

• “(c) in relation to any other superannuation scheme, has the same meaning as in section 2(1) of the Superannuation Schemes Act 1989”.

“administration manager,—

• “(a) in relation to a restricted KiwiSaver scheme, means a person to whom the trustees have contracted some or all of the administration of the scheme; and

• “(b) in relation to any other KiwiSaver scheme, means a person to whom the manager has contracted some or all of the administration of the scheme

“benefit means a lump sum, allowance, refund, or other payment arising from membership of a KiwiSaver scheme

“investment manager,—

• “(a) in relation to a restricted KiwiSaver scheme, means a person to whom the trustees have contracted the investment of some or all of the funds of the scheme; and

• “(b) in relation to any other KiwiSaver scheme, means a person to whom the manager has contracted the investment of some or all of the funds of the scheme

“manager means the person designated or appointed under the trust deed as manager of a KiwiSaver scheme other than a restricted scheme

“New Zealand resident means a person resident in New Zealand under section YD 1 or YD 2 (excluding section YD 2(2)) of the Income Tax Act 2007

“nominated person, in relation to trustees, means a person nominated by the trustees and eligible to act as a nominated person under section 116I

“nominee, in relation to a nominated person, means a person appointed by the nominated person and eligible to act as a nominee under section 116J

“restricted KiwiSaver scheme or restricted scheme means a KiwiSaver scheme identified as a restricted scheme on the KiwiSaver schemes register”.

• “(1A) For the purpose of anything that must or may be done by or to or in relation to a provider of any other KiwiSaver scheme under this Act, provider, unless the context otherwise requires, means the manager of the scheme.”

• “(5) Despite subsections (3) and (4), in the circumstances described in subsection (6), the provider of the old scheme must not transfer the member’s accumulation to the new scheme other than by way of distributing the assets of the old scheme as the scheme is wound up.

• “(6) The circumstances are that—

  • “(a) the trustees (in the case of a restricted KiwiSaver scheme) have, or the manager (in the case of any other KiwiSaver scheme) has, under section 119D, notified members of the old scheme of a proposal to transfer all of the members of the old scheme to another scheme; or

  • “(b) the trustees have, under section 173, lodged a copy of a winding-up order or resolution with the FMA (in the case of a restricted KiwiSaver scheme) or notified the manager of a winding-up order or resolution (in the case of any other KiwiSaver scheme).”

• “(a) it is established and governed by a trust deed that is interpreted and administered in accordance with New Zealand law; and”.

• “(e) it has a manager; and

• “(f) it has a trustee.”

• “(5) This section does not apply to restricted KiwiSaver schemes a restricted KiwiSaver scheme.”

“116A Requirements for restricted KiwiSaver schemes

• “(1) A scheme that is identified on the KiwiSaver schemes register as a restricted KiwiSaver scheme must—

  • “(a) comply with meet the requirements of section 116(1)(a) to (d); and

  • “(b) have at least 1 independent trustee; and

  • “(c) have—

    • “(i) at least 1 trustee who is a New Zealand resident; or

    • “(ii) if any of the trustees is a corporate trustee, at least 1 director of the corporate trustee who is a New Zealand resident; and

  • “(d) restrict membership of the scheme, in its conditions of entry of members to the scheme and in the way in which those conditions are applied, to 1 or more of the classes of persons described in subsection (1A).

  “(1A) The classes of persons are—

  • “(a) persons who are employed by a particular employer:

  • “(b) persons who are employed by a related body corporate (within the meaning of section 5B(2) of the Securities Markets Act 1988) of a particular employer:

  • “(c) persons who belong to a particular profession, calling, trade, or occupation:

  • “(d) persons who belong to a particular association, society, or other body with a definable community of interest:

  • “(e) persons who are immediate family members of, or wholly or partially financially dependent on, a person in 1 or more of the classes of persons described in paragraphs (a) to (d).

  “(1B) In subsection (1A)(e), immediate family member, in relation to a person, means the persons's spouse, civil union partner, de facto partner, parent, child, step-parent, or stepchild.

  “(2) A restricted scheme must obtain the prior written consent of the FMA before changing the conditions of entry of members to the scheme, or the way in which those conditions are applied, in a way that expands or is likely to expand the classes of persons who may become members of the scheme.

  “(3) As soon as practicable after a restricted scheme ceases to comply with subsection (1)(c), the trustees of the scheme must notify the FMA of that fact.

“116C  Requirements for managers of KiwiSaver schemes

• “(1) The manager of a KiwiSaver scheme is responsible for performing the following functions:

  • “(a) offering interests in the scheme for subscription:

  • “(b) issuing interests in the scheme:

  • “(c) managing scheme investments and property:

  • “(d) administering the scheme.

  “(2) The manager—

  • “(a) must be a company within the meaning of the Companies Act 1993; and

  • “(b) must have at least 1 director who is a New Zealand resident; and

  • “(c) must be designated or appointed as manager of the scheme under the trust deed; and

  • “(d) must be a party to the trust deed or bound to comply with the relevant provisions of the trust deed as if it were a party to the trust deed.

  “(2A) The manager has the same liability for its acts and omissions in the performance of its functions and duties, and the exercise of its powers, as it would if it performed those functions or duties, or exercised those powers, as a trustee.

  “(3) As soon as practicable after a manager ceases to comply with subsection (2)(b), the manager must notify the FMA of that fact.

“116E Duty of manager with respect to money received

• “(1) This section applies to all money received by the manager, or an agent of the manager, in respect of contributions.

  “(2) On receipt by the manager,—

  • “(a) the manager must pay the money into a separate bank account; and

  • “(b) the money is subject to the trusts governing the scheme that are set out in the trust deed.

  “Compare: 1960 No 99 ss 14(1) and 15

“116F Requirements for trustees of KiwiSaver schemes

• “(1) The trustees of a KiwiSaver scheme must supervise the manager's performance of—

  • “(a) the functions set out in section 116C(1); and

  • “(b) any other functions that the manager performs in relation to the scheme under the trust deed or an enactment.

  “(2) The trustees must not delegate the function described in subsection (1).

  “(3) A KiwiSaver scheme other than a restricted scheme must not have more than 1 trustee, and that trustee must be a body corporate that is incorporated in New Zealand.

“116F Requirements for trustees of KiwiSaver schemes other than restricted schemes

• “(1) A KiwiSaver scheme other than a restricted scheme must not have more than 1 trustee.

  “(2) The trustee must be a body corporate that is incorporated in New Zealand.

  “(3) The trustee must supervise the manager's performance of—

  • “(a) the functions of the manager as set out in section 116C(1); and

  • “(b) any other functions that the manager performs in relation to the scheme under the trust deed or an enactment.

  “(4) The trustee must not delegate the function described in subsection (3).

“116FA Removal of trustees of KiwiSaver schemes other than restricted schemes

• “(1) The trustee of a KiwiSaver scheme other than a restricted scheme must not resign as trustee of the scheme unless—

  • “(a) all functions and duties of the position have been performed; or

  • “(b) the High Court consents.

  “(2) Despite anything to the contrary in the trust deed, a manager must not discharge or remove a trustee unless the manager does so with the approval of the High Court.

  “Compare: 1960 No 99 s 10

“116G Manager and trustee must be independent

• “(1) This section applies to a KiwiSaver scheme other than a restricted scheme.

  “(2) A person (A) must not act as trustee of a scheme the scheme, and another person (B) must not act as manager of the scheme, if A and B are associated persons (within the meaning of subpart YB of the Income Tax Act 2007).

“116H Investments and property of KiwiSaver schemes

• The investments and property of a KiwiSaver scheme must be vested in—

  • “(a) the trustees; or

  • “(b) 1 or more nominated persons of the trustees; or

  • “(c) 1 or more nominees of a nominated person of the trustees.

“116I Nomination of person

• “(1) If authorised by the trust deed, the trustees of a KiwiSaver scheme may nominate, in writing, 1 or more persons in which are vested any of the investments or property referred to in section 116H of the scheme.

  “(2) The following persons are not eligible to be nominated as, or to act as, a nominated person:

  • “(a) the manager of the scheme:

  • “(b) a person who is an associated person (within the meaning of subpart YB of the Income Tax Act 2007) of the manager.

  “(3) The trustees, in addition to their own obligations as trustees in relation to the scheme, are jointly and severally liable with the nominated person for the due and faithful performance and observance by the nominated person of all the duties and obligations imposed on the nominated person in relation to the scheme either by this Act or by law.

  “Compare: 1960 No 99 ss 6 and 6A

“116J Appointment of nominee by nominated person

• “(1) A nominated person may, if authorised in writing by the trustees, appoint 1 or more nominees in which are vested any of the investments or property referred to in section 116H.

  “(1) If authorised in writing by the trustees, a nominated person may appoint 1 or more nominees in which are vested any of the investments or property of the scheme.

  “(2) The following persons are not eligible to be appointed as, or to act as, a nominee:

  • “(a) the manager of the scheme:

  • “(b) a person who is an associated person (within the meaning of subpart YB of the Income Tax Act 2007) of the manager.

  “(3) The trustee and the nominated person that appointed the nominee, in addition to their own obligations in relation to the scheme, are jointly and severally liable with the nominee for the due and faithful performance and observance by the nominee of all the duties and obligations imposed on the nominee in relation to the scheme by this Act or by law.

  “Compare: 1960 No 99 ss 6B and 6C

“116K Trust deed or other instrument must not exempt trustees, managers, or investment managers from liability

• “(1) A provision in a trust deed or any other instrument is void to the extent that it would have the effect of exempting or indemnifying a trustee, a manager, or an investment manager from liability for breach of trust in the event of the trustee, manager, or investment manager failing to meet,—

  • “(a) in the case of a trustee of a KiwiSaver scheme other than a restricted scheme, the standard of care set out in clause 1B(b) of Schedule 1:

  • “(b) in the case of a manager, the standard of care set out in clauses 1C(1)(b) and 1F(2) of Schedule 1:

  • “(c) in the case of an investment manager, the standard of care set out in clause 1F(2) of Schedule 1:

  • “(d) in the case of a trustee of a restricted KiwiSaver scheme,—

    • “(i) the standard of care set out in clause 1F(2) of Schedule 1; or

    • “(ii) the standard of care required of a trustee by law:

  • “(e) in the case of an independent trustee of a restricted KiwiSaver scheme, the standard of care set out in section 117(2)(a).

  “(2) However, the trustees of a restricted KiwiSaver scheme, and the trustee and the manager of any other KiwiSaver scheme, are otherwise entitled to the same indemnities and relief as any trustee (within the meaning of the Trustee Act 1956).

  “Compare: 1960 No 99 s 24

“116L Trustees of KiwiSaver schemes other than restricted schemes may apply to High Court for order relating to scheme

• “(1) This section applies if the trustee of a KiwiSaver scheme other than a restricted scheme is satisfied that—

  • “(a) there is a significant risk that the interests of members of the scheme will be materially prejudiced; or

  • “(b) the provisions of the trust deed are no longer adequate to give proper protection to members.

  “(2) The trustee may apply to the High Court for an order under this section.

  “(3) The court may direct that the application be served on any person that the court thinks fit.

  “(4) On an application, the court, after giving the manager and any other person that the court thinks fit the opportunity to be heard, may make an order that—

  • “(a) amends the provisions of the trust deed of the scheme:

  • “(b) imposes restrictions on the activities of the trustee or the manager (including, in the case of the manager, restrictions on advertising) that the court thinks are necessary to protect the interests of members:

  • “(c) stays any or all civil proceedings before any court by or against the trustee or the manager:

  • “(d) restrains the payment under this Act of money by the manager or the trustee to members or a class of members:

  • “(e) restrains the transfer under this Act of a member's accumulation from one KiwiSaver scheme to another:

  • “(f) removes a person as manager of a scheme and appoints another person as manager of the scheme (with any powers that the court orders):

  • “(g) gives any other directions that the court considers necessary to protect the interests of members, or the public.

  “(5) The court may vary or cancel an order made under this section.

  “(6) In exercising its powers under this section, the court must have regard to the interests of all creditors in respect of the scheme.”

• “(3) The sections referred to in subsection (1) are—

  • “(a) section 131(1) and (4); and

  • “(b) sections 131(2) and (3), 132, 135, and 148 of this Act as in force immediately before their repeal by section 187, 188, or 191 of the Financial Markets (Regulators and KiwiSaver) Act 2010.”

“Trust deeds

“119 Content of trust deeds

• “(1) The trust deed of a KiwiSaver scheme must specify the following matters:

  • “(a) the conditions of entry of members to the scheme:

  • “(b) the conditions of termination of membership of the scheme:

  • “(c) the contributions payable:

  • “(d) the conditions under which benefits become payable and the way in which the benefits will be determined:

  • “(e) the number of trustees, and provision for their appointment, removal from office, and retirement:

  • “(f) the circumstances in which the scheme may be wound up and the way in which the assets of the scheme are to be distributed in the event of a winding-up:

  • “(g) in the case of a KiwiSaver scheme other than a restricted scheme, provision for the appointment, removal from office, and retirement of the manager.

  “(2) If other provisions of this Act expressly set out requirements in relation to the matters set out in subsection (1) (for example, by terms implied by the KiwiSaver scheme rules or provision for how a scheme must be wound up),—

  • “(a) the trust deed is subject to those provisions; and

  • “(b)  subsection (1) is satisfied by reference to the relevant provisions in this Act in respect of those matters.

  “Compare: 1989 No 10 s 7

“119A Implied provision as to amendments reducing accrued benefits, etc

• “(1) There is implied in the trust deed of a KiwiSaver scheme a provision that an amendment requiring consent must not be made unless the trustees (in the case of a restricted KiwiSaver scheme) have, or the manager (in the case of any other KiwiSaver scheme) has, obtained the written consent of every member who would be adversely affected by the amendment.

  “(2) In subsection (1), amendment requiring consent means an amendment of the trust deed that would have the effect of—

  • “(a) reducing, postponing, or otherwise adversely affecting the benefits, whether vested, contingent, or discretionary, that may in due course flow from, or are attributable to, membership of the scheme up to the date the amendment is made; or

  • “(b) removing a right of members to participate in the management of the scheme; or

  • “(c) increasing the contributions, fees, or charges payable by a member; or

  • “(d) providing for the reversion of any assets of the scheme to an employer to a greater extent than already provided for in the trust deed.

  “Compare: 1989 No 10 s 9

“119B Application of sections 119C to 119I

• Sections 119C to 119I apply to transfers or proposed transfers between KiwiSaver schemes, other than transfers to which subpart 3 of Part 2 applies.

“119C Implied provision as to transfer of members, etc

• “(1) There is implied in the trust deed of a KiwiSaver scheme a provision that no member of the scheme will be transferred to another KiwiSaver scheme, or to another section of the same scheme, unless the trustees (in the case of a restricted KiwiSaver scheme) have, or the manager (in the case of any other KiwiSaver scheme) has, obtained the written consent of the member concerned.

  “(2) This section is subject to section 119G.

  “Compare: 1989 No 10 s 9B(1), (1A), (5)

“119D Procedural requirements in case of certain transfers

• “(1) This section and sections 119E to 119H apply if it is proposed to transfer (whether at the same time or over an extended period) all or a substantial number of members from a KiwiSaver scheme to another KiwiSaver scheme.

  “(2) If this section applies,—

  • “(a) the manager of each KiwiSaver scheme affected (other than a restricted scheme) must notify the persons described in subsection (3) in accordance with subsection (3A); and

  • “(b) the trustees of each restricted KiwiSaver scheme affected must notify the persons described in subsection (3) in accordance with subsection (4).

  “(3) The persons who must be notified are—

  • “(a) all members of the scheme (other than those members who, in the opinion of the FMA, are not likely to be materially affected by the proposed transfer); and

  • “(b) the FMA.

  “(3A) If this subsection applies, the manager The manager of each KiwiSaver scheme affected, other than a restricted scheme, must, at least 1 month before the date on which the manager requires members to give their written consent to a proposed transfer,—

  • “(a) consult the trustee of the scheme on the proposed transfer; and

  • “(b) notify the members described in subsection (3)(a) subsection (4A) in writing of—

    • “(i) the proposed transfer and its implications for members; and

    • “(ii) the date on which the proposed transfer is to occur; and

    • “(iii) the date by which the written consent of members to the proposed transfer must be received by the manager; and

    • “(iv) any comments concerning the proposed transfer made by the trustee as a result of consultation under paragraph (a); and

    • “(v) the fact that a copy of the notice has been forwarded to the FMA; and

  • “(c) notify the FMA in writing of the matters described in paragraph (b)(i) to (iv).

  “(4) If this subsection applies, the trustees The trustees of each restricted KiwiSaver scheme affected must, at least 1 month before the date on which they require members to give their written consent to a proposed transfer,—

  • “(a) notify the members described in subsection (3)(a) subsection (4A) in writing of—

    • “(i) the proposed transfer and its implications for members; and

    • “(ii) the date on which the proposed transfer is to occur; and

    • “(iii) the date by which the written consent of members to the proposed transfer must be received by the trustees; and

    • “(iv) the fact that a copy of the notice has been forwarded to the FMA; and

  • “(b) notify the FMA in writing of the matters described in paragraph (a)(i) to (iii).

  “(4A) The persons who must be notified under subsections (3A)(b) and (4)(a) are all members of the scheme other than those members who, in the opinion of the FMA, are not likely to be materially affected by the proposed transfer.

  “(5) Giving notice under this section does not derogate from the need to comply with any other provision of this Act.

  “(6) For the purposes of this section and section 119E, references to the transfer of members from one scheme to another include references to transfers of members from one section of a scheme to another section of the same scheme.

  “Compare: 1989 No 10 s 9B(2)–(3), (5)

“119E When requirements of section 119D not met

• For the purposes of section 169, and without limiting that section, it is a ground for the FMA to have reasonable cause to believe that a particular scheme to which members are transferred fails to meet the requirements of section 119D if,—

  • “(a) over any 12-month period, either—

    • “(i) 20% or more of the members of another KiwiSaver scheme are transferred to the particular KiwiSaver scheme; or

    • “(ii) the number of members of the particular KiwiSaver scheme is increased by 20% or more by reason of a transfer of members from another KiwiSaver scheme; and

  • “(b) the members of the particular KiwiSaver scheme who are described in section 119D(3)(a) section 119D(4A) have not been notified of the transfer, or any notification given has not adequately set out the implications of the transfer.

  “Compare: 1989 No 10 s 9B(4)

“119F Information required in case of transfer under section 119D

• In respect of a transfer to which section 119D applies, the provider of the scheme from which a member (A) transfers must give the following information to the provider of the scheme to which A transfers:

  • “(a) A's name, address, and date of birth:

  • “(b) A's tax file number:

  • “(c) the date on which A first became a member of a KiwiSaver scheme:

  • “(d) if A is an employee,—

    • “(i) the name and address of each of A's employers; and

    • “(ii) the rate at which A intends each of those employers to make deductions of contributions from his or her salary or wages:

  • “(e) the name, address, and tax file number of both the provider and the scheme:

  • “(f) any other information that the Commissioner requires the provider to give to the provider of the scheme to which A transfers.

“119G When FMA may approve section 119D transfers without consent of members

• “(1) In respect of a transfer to which section 119D applies, the requirement in section 119C to obtain the written consent of all or any of the members of a scheme does not apply if the FMA approves the transfer under this section.

  “(3) The FMA may approve the transfer if the FMA is satisfied that—

  • “(a) the terms and conditions of the scheme to which the members are to be transferred (the new scheme) are no less favourable to members than the terms and conditions of the scheme from which they are being transferred (the old scheme); and

  • “(b) the transfer is otherwise reasonable in all the circumstances (including having regard to the value of the assets transferred from the old scheme to the new scheme); and

  • “(c) the procedure in section 119H has been followed.

  “(4) The FMA may decline to approve a transfer if the FMA considers that the transfer would adversely affect the interests of all or any of the members of the old scheme in a material way.

  “(5) In determining whether subsection (3) or (4) applies, the FMA may—

  • “(a) have regard to the likely effect of the new scheme on benefits to members as a whole; and

  • “(b) have regard to any other matter that the FMA considers relevant.

  “(6) For a transfer that the FMA has approved,—

  • “(a) each relevant member of the old scheme is treated as offering to be a member of the new scheme on the terms and conditions for that new scheme; and

  • “(b) the provider of the new scheme is treated as accepting the member's offer.

  “(7) The FMA may publish, in any form that the FMA thinks fit, guidance on matters that the FMA considers relevant under this section (including principles that the FMA may use to decide whether to approve a transfer).

  “Compare: 1989 No 10 s 9BAA

“119H How approval under section 119G may be granted

• “(1AA) An application for approval under section 119G may be made by—

  • “(a) the trustees (in the case of a restricted KiwiSaver scheme) of the old scheme or the new scheme:

  • “(b) the trustee or the manager (in the case of any other KiwiSaver scheme) of the old scheme or the new scheme:

  • “(c) a relevant employer.

  “(1) The FMA may accept an application for approval if it is satisfied that—

  • “(a) it is reasonable in all of the circumstances of the case that the person have standing to make the application; and

  • “(b) the person falls within a class specified in guidelines published by the FMA (if any) for the purposes of this subsection.

  “(2) The FMA may require the applicant to give the FMA, with the application or at any later time,—

  • “(a) a certificate, signed by a person of a class specified by the FMA, that the transfer meets the requirements of section 119G; and

  • “(b) any other information about the new scheme, the old scheme, or the transfer.

  “(3) The applicant must give notice to every member of the old scheme—

  • “(a) that the applicant has applied for approval to transfer the members without their written consent; and

  • “(b) that the member may make submissions to the FMA about the transfer.

  “(4) The FMA must have regard to submissions before deciding whether or not to give approval.

  “(5) The FMA may give approval subject to any terms and conditions that the FMA may specify in the notice of approval, and the approval is effective only if the transfer is carried out in accordance with those terms and conditions.

  “Compare: 1989 No 10 s 9BAB

“119I FMA may exempt trustees and managers from requirement to obtain written consent of members

• The FMA may exempt the trustees of a restricted KiwiSaver scheme or the manager of any other KiwiSaver scheme from the requirement to obtain the written consent of all members of the scheme who are required to give consent under section 119A or 119C if the FMA is satisfied that—

  • “(a) the trustees have not, or the manager has not, been able to contact all of those members despite having taken all reasonable steps to do so; and

  • “(b) the proposed action is not unreasonable in relation to the best interests of 1 or more of those members who have not been contacted.

  “Compare: 1989 No 10 s 9BA

“119J Application and enforcement of implied provisions

• “(1) Sections 119A to 119I, 129A, and 129B apply notwithstanding anything to the contrary in the trust deed.

  “(2) Every provision implied in a trust deed in accordance with sections 119A to 119I, 129A, and 129B is enforceable by the manager, the trustees, or a member of the scheme.

  “Compare: 1989 No 10 s 11

“Financial information

“120 Financial statements

• The trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) must ensure that—

  • “(a) proper books of accounts are kept in respect of the scheme; and

  • “(b) annual financial statements in respect of the scheme are prepared in accordance with generally accepted accounting practice (as defined in section 3 of the Financial Reporting Act 1993); and

  • “(c) the annual financial statements are audited by an auditor (being a chartered accountant within the meaning of section 19 of the New Zealand Institute of Chartered Accountants Act 1996).

  “Compare: 1989 No 10 s 13(1)

“Prospective members' rights to information

“121 Prospective members' rights to information

• “(1) A person who is eligible to become a member of a KiwiSaver scheme has the right, on request,—

  • “(a) to look at, at any reasonable time, a copy of the trust deed:

  • “(b) to receive, on payment of a reasonable fee, a copy of the trust deed:

  • “(c) to receive, free of charge, a copy of the annual financial statements and any auditor's report.

  “(2) In subsection (1), trust deed does not include a participation agreement that would not relate to a person the person if the person were to become a member of the scheme.

  “(3) Nothing in subsection (1) limits any provision in the Securities Act 1978.

  “Compare: 1989 No 10 s 15A

“Members' rights to information

“122 Members' rights to information

• “(1) Each member of a KiwiSaver scheme must—

  • “(a) be given, within 6 months of the close of each financial year of the scheme, a copy of the annual report prepared under section 123 in respect of that year; and

  • “(b) have the right, on request,—

    • “(i) to receive an estimate of the member's benefits:

    • “(ii) to look at, at any reasonable time, a copy of the trust deed:

    • “(iii) to receive, on payment of a reasonable fee, a copy of the trust deed:

    • “(iv) to receive, free of charge, a copy of the annual financial statements and any auditor's report.

  “(2) Subsection (1)(a) does not apply in relation to a member's account that is an inactive account unless the member requests a copy of the annual report.

  “(3) The requirement in subsection (1)(a) is treated as met in respect of a member if––

  • “(a) the member has consented, in writing, to receive a World Wide Web uniform resource locator for access to an electronic copy of the annual report (the annual report URL); and

  • “(b) the member is given the annual report URL within 6 months of the close of the relevant financial year.

  “(4) In subsection (1), trust deed does not include a participation agreement that does not relate to the member.

  “(5) Nothing in subsection (1) limits sections 54A, 54B, or any other provision of the Securities Act 1978.

  “Compare: 1989 No 10 s 17”

“Annual reports, returns, and statements”.

“123 Requirement for annual report

• “(1) The trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) must, within 5 months after the end of each financial year, prepare a report on the scheme for that year.

  “(2) In the case of a KiwiSaver scheme other than a restricted scheme, the manager must consult the trustee about the annual report.

  “(3) The annual report must contain, or have attached to it, the prescribed information, statements, certificates, and documents.

  “(4) The trustees or the manager (as the case may be) must, within 28 days after the annual report is completed, send to the FMA a copy of the completed report and, if not already contained in or attached to the report, a copy of the annual financial statements.”

“125A Requirement for annual personalised statement of contributions and accumulations for members

• The trustees (in the case of a complying superannuation fund or a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) must provide annually to each person who is a member of that fund or scheme during the relevant year a statement showing the following for that person:

  • “(a) the amount of each type of contribution received by the provider of the fund or scheme (as the case may be) for the year; and

  • “(b) the member's accumulation at the end of the year; and

  • “(c) any other prescribed information.”

“128E Provisions implied in trust deeds by regulations

• A provision implied in a trust deed by regulations made under section 228(1)(bb)—

  • “(a) does not apply to the extent that it is inconsistent with provisions implied in the trust deed by this Act; but

  • “(b) applies despite anything else to the contrary in the trust deed; and

  • “(c) is enforceable by the trustees, the manager, or any member of the scheme, unless the regulations provide otherwise.”

• “(1) This section applies if the trustees (in the case of a restricted KiwiSaver scheme) or the trustee or the manager (in the case of any other KiwiSaver scheme) propose to amend the trust deed of the scheme in a way that will or may affect—

  • “(a) the members of the scheme in their capacity as members of the scheme; or

  • “(b) the trustees of the scheme in their capacity as trustees of the scheme; or

  • “(c) the manager of the scheme in its capacity as manager of the scheme.

• “(2) Before an amendment of the type referred to in subsection (1) is made, the trustees of the scheme, or the trustees' solicitor, must give a certificate that the trust deed, when amended as proposed,—

  • “(a) will comply with section 119; and

  • “(b) will not contain a provision that is contrary to those implied by sections 119A to 119I, 129A, and 129B; and

  • “(c) will not contain a provision that is contrary to the KiwiSaver scheme rules.

  • “(b) will not contain a provision that is contrary to those implied in a trust deed by or under this Act (including the KiwiSaver scheme rules).”

“129A Implied provision as to alterations to scheme

• “(1) There is implied in the trust deed of a KiwiSaver scheme a provision that an alteration described in subsection (2) must be effected by way of amendment to the trust deed in accordance with section 129(2) and (3).

  “(2) Subsection (1) applies to an alteration to the scheme that—

  • “(a) would be contrary to or have the effect of nullifying, reversing, or amending a matter stated in the trust deed or a provision implied in the trust deed by this Act by or under this Act; or

  • “(b) would have the effect of extending, varying, or limiting the scope of the trust deed in a material particular.

  “Compare: 1989 No 10 s 9A

“Reversion of scheme assets to employer

“129B Implied provision as to reversion of scheme assets to employer

• There is implied in the trust deed of a KiwiSaver scheme that provides for the reversion of any assets of the scheme to an employer a provision employer, a provision that no part of the assets may revert to an employer without the prior written consent of the FMA.

  “Compare: 1989 No 10 s 10”.

• “(ia) determine whether a scheme is a restricted scheme; and

• “(ib) know how to contact the manager of a scheme other than a restricted scheme; and”.

• “(v) know how to access information about the manager or trustees that is contained in the register of financial service providers established and maintained under section 24 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (including details of the relevant dispute resolution scheme); and”.

• “(ba) whether it is a restricted scheme; and”.

• “(da) in the case of a KiwiSaver scheme other than a restricted scheme, the name of the manager of the scheme and an address for service for the manager; and

• “(db) the unique identifiers issued to the trustees and the manager by the Registrar of Financial Service Providers and contained in the register of financial service providers established and maintained under section 24 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008; and”.

• “(ab) on giving 28 days' notice to the trustees, if satisfied on reasonable grounds that a restricted scheme no longer meets the requirements set out in section 116A(1)(a) to (c); or”.

“168A Scheme may cease to be restricted scheme

• “(1) The FMA may determine that a restricted KiwiSaver scheme should cease to be a restricted scheme—

  • “(a) if it is satisfied that the scheme no longer meets the requirements set out in section 116A(1)(d) or (2); or

  • “(b) at the request of the trustees of the scheme, if it is satisfied that the members of the scheme have been adequately advised of the consequences of the scheme ceasing to be a restricted scheme.

  “(2) If the FMA makes a determination under subsection (1), the FMA must—

  • “(a) notify the trustees of the determination; and

  • “(b) amend the register so that the scheme is no longer identified as a restricted scheme.

  “(3) However, the FMA must not amend the register earlier than 6 months after the date of the determination without the consent of the trustees.

  “(4) The trustees must, as soon as practicable after being notified by the FMA under subsection (2)(a), notify the members of the scheme of the determination.”

• “(a) sections 119A to 119I, 129A, and 129B; and”.

“171 Implied terms continue to be implied on cancellation of registration

• If the registration of a KiwiSaver scheme is cancelled, the KiwiSaver scheme rules and any other provisions implied in a trust deed by or under this Act must continue to be implied in the trust deed of the scheme until the scheme is wound up.”

• “(c) in the case of a KiwiSaver scheme other than a restricted scheme, notify the manager of the scheme of any order or resolution.”

• “(c) must, within 28 days after the final financial statements have been audited, ensure that—

  • “(i) a copy of those financial statements is sent to the FMA and to every person who was a member of the scheme immediately before it was wound up; and

  • “(ii) the FMA and the members are advised in writing of the manner in which remaining assets (if any) of the scheme are to be distributed; and”.

“174A Registration deemed to be cancelled when assets distributed

• The registration of a KiwiSaver scheme that has been wound up is deemed to be cancelled as soon as the distribution of the assets is completed.”

• “(6) A restricted scheme is not eligible to be a default KiwiSaver scheme.”

• “(2) If this section applies, the High Court may make any orders on any terms and conditions that it thinks appropriate, including, without limitation,—

  • “(a) an order to restrain the trustee or the manager of the scheme, or both, from engaging in conduct that constitutes, or would constitute, the breach:

  • “(b) an order to require the trustee or the manager of the scheme, or both,—

    • “(i) to do a particular act or thing:

    • “(ii) to comply with the conditions of the instrument of appointment:

  • “(c) an interim order.”

• “(ba) prescribing the information and matters that must be included in the trust deed of a KiwiSaver scheme:

• “(bb) subject to subsection (2), prescribing provisions to be implied in the trust deed of a KiwiSaver scheme:”.

• “(fa) prescribing the information information, statements, certificates, or documents that must, or must not, be contained in or attached to the annual report prepared under section 123:”.

• “(ga) prescribing information that must be included in annual personalised statements for members under section 125A:

• “(gb) prescribing how the information included in an annual personalised statement under section 125A must be presented, calculated, or prepared:”.

• “(2) A provision prescribed for the purposes of subsection (1)(bb) may, without limitation, do any of the following:

  • “(a) specify the duties and powers of the trustee of the scheme:

  • “(b) specify the duties of the manager of the scheme:

  • “(c) provide for the trustee of the scheme to have the power, exercisable with the consent of the manager of the scheme (but without requiring the consent of members), to make amendments to the trust deed that do not adversely affect the interests of members.”

“1 Application

• “(1) The KiwiSaver scheme rules in clauses 1A and 1F to 17 apply to all KiwiSaver schemes.

  “(2) The KiwiSaver scheme rules in clauses 1B to 1E apply to KiwiSaver schemes other than restricted schemes.

“1A Enforceability

• The KiwiSaver scheme rules are enforceable by the trustees, the manager, or a member of a scheme.

“1 Application

• “(1) The KiwiSaver scheme rules in clauses 1B to 1E apply to KiwiSaver schemes other than restricted schemes.

  “(2) The KiwiSaver scheme rules in clauses 1F to 17 apply to all KiwiSaver schemes.

“Rules applying to KiwiSaver schemes other than restricted schemes

“1B Trustee's duties

• The trustee, in exercising its powers and performing its duties as the trustee, must—

  • “(a) act in the best interests of the members of the scheme; and

  • “(b) exercise the care, diligence, and skill that a prudent person engaged in the profession or business of acting as a trustee would exercise in acting as the trustee of a KiwiSaver scheme other than a restricted scheme.

“1C Manager's duties

• “(1) The manager, in exercising its powers and performing its duties as the manager, must—

  • “(a) act in the best interests of the members of the scheme; and

  • “(b) exercise the care, diligence, and skill that a prudent person engaged in the profession or business of acting as a manager would exercise in managing the affairs of others, unless the manager is exercising a power of investment, in which case clause 1F(2) applies.

  “(2) The manager must use the manager's best endeavours and skill to ensure that the affairs of the scheme are conducted in a proper and efficient manner.

“1D Scheme investments and property

• “(1) The trustee must comply with every direction of the manager relating to the acquisition or disposal of scheme investments and property, unless subclause (2) applies.

  “(2) The trustee must refuse to act on a direction of the manager relating to the acquisition or disposal of scheme investments or property if the trustee considers that the proposed acquisition or disposal—

  • “(a) would be in breach of the trust deed or an enactment; or

  • “(b) would be manifestly not in the best interests of the members of the scheme.

  “(3) If the trustee refuses to act on a direction of the manager, the trustee must notify the manager and the FMA in writing of the trustee's reasons for refusing to do so.

“1E Manager to provide information to trustee

• If requested by the trustee, the manager must—

  • “(a) make available to the trustee all documents and records relating to the scheme that are held by the manager, an administration manager, or an investment manager of the scheme:

  • “(b) provide the trustee with any information required by the trustee about—

    • “(i) the scheme:

    • “(ii) the affairs of the manager:

    • “(iii) the property of the manager (whether acquired before or after the date of the manager's appointment).

“Rules applying to all KiwiSaver schemes

“1F Investment of scheme money

• “(1) All money belonging to a KiwiSaver scheme and available for investment must be invested in accordance with the provisions of the Trustee Act 1956 as to the investment of trust funds.

  “(2) The trustees (in the case of a restricted scheme), the manager (in the case of any other KiwiSaver scheme), and the investment managers (if any) of a scheme must, in exercising a power of investment, exercise the care, diligence, and skill required of a trustee by section 13B or 13C of the Trustee Act 1956.

  “(3) Subclause (2) applies despite anything to the contrary in section 13D(1) of the Trustee Act 1956.

  “Compare: 1989 No 10 s 8”.

• “(ab) the manager of the scheme:”.

• “(a) the trustee of the scheme and, where the trustee is a company, the directors of the trustee; and

• “(b) the manager of the scheme and the directors of the manager; and”.

• “4 The name and contact address of at least 1 of the directors of the manager who is a New Zealand resident.”

• “11 A certificate by the trustee or the trustee's solicitor stating that the trust deed—

  • “(a) complies with section 119; and

  • “(b) does not contain a provision that is contrary to those implied by sections 119A to 119I, 129A, and 129B; and

  • “(c) does not contain any provision that is contrary to the KiwiSaver scheme rules (as implied by section 126 and Schedule 1).

  • “(b) does not contain a provision that is contrary to those implied in the trust deed by or under this Act (including the KiwiSaver scheme rules).”