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—

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.

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

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—

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

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

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

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

The FMA may receive evidence—

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

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.

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.

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, or being involved in a contravention, of any provision of the financial markets legislation if the FMA is satisfied that there are reasonable grounds—

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

An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may issue a search warrant in relation to a place, vehicle, or thing, on an application made in the manner provided by subpart 3 of Part 4 of that Act by a specified person authorised under subsection (1), if the issuing officer is satisfied that there are reasonable grounds to—

In this section,—

The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply, with any necessary modifications.

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—

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 2020).

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.

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

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

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—

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.

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

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

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

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).

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.

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

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,—

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

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—

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

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

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.

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

The FMA may, with the leave of the High Court,—

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

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).

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

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

In relation to that application for leave, person A—

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—

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.

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.

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.

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

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—

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—

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.

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

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.

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.

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.

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

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

At the end of the inquiry, investigation, or proceeding, the Official Information Act 1982 and the Privacy Act 2020 apply to any information or document or evidence that was the subject of the order under subsection (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.

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

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.

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

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.

An undertaking may be given in connection with the FMA making a statement under section 9(1)(a)(v) (but this subsection does not limit subsection (1)).

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

An undertaking under section 46 may include—

The FMA must ensure that each amount paid under subsection (1)(b) is paid into a Crown Bank Account (after deducting the FMA’s actual costs incurred in connection with the matter).

If an undertaking referred to in subsection (1)(b) is given, the FMA must give notice of that undertaking on its Internet site (whether or not it gives notification of other undertakings given in relation to the same matter).

The notice under subsection (3) must include—

This section does not limit section 46.

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).

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

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

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.

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.

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.

The FMA is entitled to appear and be heard in any specified proceedings.

The FMA has the right to adduce evidence and the right to cross-examine witnesses if the FMA appears under this section, unless the specified proceedings are by way of appeal.

The rights referred to in this section apply whether or not the FMA was a party to the specified proceedings at any earlier stage in the proceedings.

In this section, specified proceedings means any of the following kinds of proceedings:

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:

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

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

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

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

The FMA may—

In this section and section 51,—

If the FMA makes an order under section 49,—

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

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.

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—

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

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—

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

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).

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.

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

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).

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.

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 person authorised under section 52 who wilfully contravenes subsection (1) commits an offence and is liable on 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.

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.

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.

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

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.

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,—

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—

The remedies are as follows:

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.

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,—

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.

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,—

This section applies to the following information and documents:

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

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—

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 2020).

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.

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.

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

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

Every person commits an offence who—

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.

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

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

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.

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

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

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

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.

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.

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—

Subsection (1) does not apply to—

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

Nothing in this Part limits the Privacy Act 2020.

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

Regulations 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.

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

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.

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

If the regulations authorise the FMA under subsection (2) to grant a refund or waiver,—

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.

In this section and section 69, specified persons means—

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

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

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.

The regulations may—

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).

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.

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.

The FMA, or any other person prescribed for the purposes of this subsection, must ensure that—

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

If regulations authorise a person to grant waivers or refunds referred to in subsection (6)(j),—

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—

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

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

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

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,—

The Commission is disestablished.

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

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.

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.

On the commencement date,—

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 69 of the Privacy Act 2020.

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

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.

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.

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—

This section—

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

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

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.

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.

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

Nothing effected or authorised by sections 71 to 74—

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.

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.

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

The office of the Government Actuary is disestablished.

This section is subject to section 80.

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,—

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,—

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 69 of the Privacy Act 2020.

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

This section is subject to section 80.

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.

This section—

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:

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

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—

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.

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.

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.

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 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.

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”.

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”.

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”.

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”.

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”.

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”.

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”.