Financial Market Infrastructures Bill

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Hon Grant Robertson

Financial Market Infrastructures Bill

Government Bill

212—2

	Commentary
	Key
1	Title
2	Commencement
	Part 1 Preliminary provisions and regulator
	Subpart 1—Preliminary provisions
3	Purposes
4	Overview of this Act
5	Interpretation
6	Transitional, savings, and related provisions
7	Act binds the Crown
	Subpart 2—Regulator
8	Regulator
9	Requirement to act jointly
10	Cases where requirement to act jointly does not apply
11	RBNZ and FMA working together
12	General provisions about regulator’s functions and Ministers’ functions
13	Purposes and principles of exercising powers under this Act (other than Part 4)
	Part 2 Regulator’s powers to require information, reviews, and independent reports
14	Regulator’s power to require information
15	Offence for failure to give information
16	Regulator’s power to require information to be reviewed
17	Offence for failure to obtain review
18	Regulator’s power to require independent report
19	Offence for failure to give or publish report
	Part 3 Designated FMIs
	Subpart 1—Making, revoking, and amending designations
	Designations by Minister
20	Designation of FMIs by Minister
	Recommendation for designation by regulator
21	Recommendations by regulator
22	Restrictions on recommendations
23	Matters to which regulator may have regard for purposes of recommendations
24	Matters that regulator must take into account for purposes of deciding if FMI is systemically important
	Process for applications or recommendations on own initiative
25	Application for issue, revocation, or amendment of designation notice
26	Process where regulator makes recommendation on own initiative
27	Pecuniary penalty for failure to publish proposal
	General provisions relating to designation notices
28	Meaning of systemically important
29	Content and publication of designation notice
	Offence
30	Offence for wrongly holding out system as designated FMI, etc
	Subpart 2—Standards for designated FMIs
31	Regulator may issue standards for designated FMIs
32	Procedure for issuing standards
33	Publication of standards
34	Pecuniary penalty for contravention of standard
35	Subject matter of standards
	Subpart 3—Rules of designated FMIs
	Rules of designated FMIs
36	Designated FMI’s rules
37	Operators must publish copy of rules of designated FMI
38	Pecuniary penalty for failure to publish copy of rules
	Rule changes of designated FMIs (other than overseas FMIs)
39	Time rule change comes into effect
40	Operator of designated FMI may apply for approval of rule change
41	Regulator may require change to designated FMI’s rules
42	Regulator’s decision to approve rule change required under section 41
43	Regulator’s decision not to approve rule change required under section 41
44	Offence for contravention of section 41 or 43
	Rule changes of overseas FMIs
45	Changes to rules of designated FMIs that are overseas FMIs
46	Pecuniary penalty for failure to give rule change instrument to regulator
	Publication requirements relating to rule changes
47	Publication of rule changes
	Subpart 4—FMI contingency plans
48	Designated FMIs to have FMI contingency plans
49	Operator must notify activation of FMI contingency plan
50	Regulator’s power to review FMI contingency plans, etc
51	Regulator’s powers in relation to FMI contingency plans
52	Regulator’s decision on change submitted by operator
53	Offence for contravention of sections 50 to 52
	Subpart 5—Validity and enforceability of settlements under designated FMIs, etc
54	Application of this subpart
	Settlements and netting
55	Designated FMI’s rules relating to settlements, etc, are valid and enforceable
56	Settlements must not be reversed, etc
57	Effect of insolvency event on settlement
58	Netting
59	Underlying transactions, etc
60	Interrelationships with other enactments
	Other provisions
61	Transfer of personal property in accordance with designated FMI’s rules effective
62	Operators to be notified of insolvency event
	Subpart 6—Investigations, remedial notices, and voluntary undertakings
	Investigations
63	Regulator may appoint investigator
64	Investigator’s powers
65	Application for warrant
66	Offences relating to investigations
	Remedial notices and plans
67	Regulator may require operator to take action in relation to contravention of this Act
68	Approval, amendment, or rejection of remedial plan
69	Other provisions relating to remedial notices and plans
70	Offence for contravention of remedial notice, failure to give amended remedial plan, or failure to take steps to comply with remedial plan
	Voluntary undertakings
71	Regulator may accept voluntary undertaking
72	Consequences of accepting undertaking
73	Undertakings that include payment of money
74	Operator may withdraw or amend undertaking
75	Enforcement of voluntary undertakings
76	Court must take into account certain matters
	Part 4 Dealing with systemically important FMIs that are distressed, etc
	Subpart 1—Application and purposes
77	Application of this Part
78	Purposes for which powers under this Part may be exercised
78A	Principles for exercising powers under this Part
	Subpart 2—Directions to operators or participants and removal of directors
79	Application of this subpart
80	Directions to operator
81	Giving and complying with direction does not place person in contravention, etc
82	Power to make direction notice confidential
82A	Disclosure with regulator’s consent
83	Offences for contravention of direction notice or confidentiality notice
84	Direction to participant to comply with FMI’s rules
85	Offence for contravention of direction notice
86	Removal of director
87	Process if regulator proposes to exercise power to remove director
88	How power to remove director is exercised
	Subpart 3—Statutory management
	Making FMI operator subject to statutory management
89	Power to make operator subject to statutory management
90	Regulator’s recommendation under section 89
91	Statutory management of operator whose home jurisdiction is not New Zealand
	Conduct of statutory management: purposes, duties, and principles
92	Purposes of statutory management
93	General duties of statutory manager
94	Principles for statutory management
95	Other duties of statutory manager
96	Advisory committee
97	Terminating appointment, or resignation, of member of advisory committee
	Conduct of statutory management: application of FMI’s rules
98	Application of FMI’s rules
99	Statutory manager may decide that provision of rules is not to apply
100	Statutory manager must pay calls, debts, and claims arising under FMI’s rules
	Conduct of statutory management: new operator schemes
101	Purpose of new operator schemes
102	Making of new operator scheme
103	Consent required to make new operating scheme
104	Effect of new operating scheme
104A	Transfer of property subject to security
105	Registers
	Application of provisions of Corporations (Investigation and Management) Act 1989
106	Moratorium
107	Power of statutory manager to sell business undertaking of operator under statutory management, etc
108	Ministers’ approval
109	Body corporate formed and registered also subject to statutory management
110	Applicable provisions of Corporations (Investigation and Management) Act 1989
111	Modifications relating to power to pay creditors and compromise claims
112	Other modifications to Corporations (Investigation and Management) Act 1989
113	Offences relating to statutory management
	Termination of statutory management or of statutory manager’s appointment
114	Termination of statutory management
115	Effect of termination of statutory management
116	Termination or resignation of statutory manager’s appointment
117	Appointment of new statutory manager
	Other provisions
118	Obligations incurred by statutory manager
119	Statutory management does not place any person in contravention of enactment, etc
120	Continuation of statutory management of company restored to New Zealand register
121	Person who exercises powers under subpart not director of operator under statutory management
121A	Indemnity
	Subpart 4—Supplementary provisions
122	Certain rights relating to derivatives may be exercised after stay
123	Regulator may reduce or extend stay on exercise of rights
	Part 5 Offences and pecuniary penalties
	Subpart 1—Offences
124	Penalties for offences
125	Defence for certain offences
126	Time for filing charging documents
	Subpart 2—Pecuniary penalties
127	Pecuniary penalty orders
128	Maximum amount of penalty
129	Considerations for court
130	Defences in pecuniary penalty proceeding for operator that contravenes standard
131	Defence for other operator that is involved in contravention
132	Rules of civil procedure and civil standard of proof apply to civil liability
133	Court must order that recovery from pecuniary penalty be applied to regulator’s actual costs
	Subpart 3—Supplementary provisions
134	Liability of directors
135	State of mind of directors, employees, or agents attributed to body corporate or other principal
136	Person not liable for fine and pecuniary penalty for same conduct
	Part 6 Regulations, amendments, and other miscellaneous provisions
	Subpart 1—Supplementary provisions relating to information
137	False or misleading information given for purposes of Act
	Disclosure of information, etc
138	Disclosure of information between RBNZ and FMA
139	Disclosure of information by RBNZ ~~or FMA~~ to other persons
140	Offence for unauthorised disclosure
141	Conditions relating to disclosure of information
142	Restrictions on further disclosure of information
143	Offence for unauthorised disclosure or use
144	Effect of proceedings on exercise of powers to require information, etc
145	Decision that exercise of powers is unlawful
	Subpart 2—Supplementary provisions relating to regulator’s powers
146	Applications, submissions, and other information given to regulator or other person in accordance with regulator’s requirement
147	Revocation or amendment of requirements imposed, or directions given, by notice
148	Publication requirements
149	Interaction with Legislation Act 2012
	Subpart 3—Regulations
150	Power to make regulations by Order in Council
	Subpart 4—Other miscellaneous provisions
151	Directions to regulator
152	Limit on FMA’s powers under other enactments
153	Protection from liability
154	Conduct of directors, employees, or agents attributed to body corporate or other principal
155	Prohibition on indemnities or insurance for directors or employees of operators that are not New Zealand companies
156	Exception to prohibition
157	Giving of notices by regulator or investigator
158	Giving notices to agent
	Subpart 5—Consequential amendments
159	Consequential amendments to Acts and instruments
	Schedule 1 Transitional, savings, and related provisions
	Schedule 2 Consequential amendments
	Legislative history

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