Conduct of Financial Institutions (CoFI) legislation

The CoFI legislation amends the Financial Markets Conduct Act 2013 by requiring registered banks, licenced insurers and licenced non-bank deposit takers to:

1. be licensed by the FMA in respect of their conduct towards consumers; and
2. comply with a “fair conduct principle” to treat consumers fairly, through the requirement for financial institutions to establish, maintain and implement a “fair conduct programme” (FCP) and take all reasonable steps to comply with the programme; and
3. comply with regulations that ban target-based sales incentives, and regulate other types of incentives.

The “fair conduct principle” will apply whenever a financial institution:

• designs services and products for consumers
• offers to provide those services and products
• provides those services and products
• has any dealings or interactions with a consumer in relation to its services or products, eg responding to a complaint or handling a claim

The FMA and Reserve Bank of New Zealand undertook joint reviews into the conduct and culture of banks and life insurers in New Zealand, in 2018 and 2019, respectively. More recently, the FMA also reviewed the conduct and culture of fire and general insurers. Those reviews found banks and insurers were not putting in place systems and processes to ensure consumers were treated fairly.

The outcomes sought included:

• Consumers getting products and services that suit them and address their financial needs.
• Consumers being supported to make sound financial decisions, at the time of purchase and throughout the lifecycle of the product/services.
• Consumers having trust and confidence in the NZ financial sector.
• Financial institutions having the consumer at the heart of their business operations.

In December 2019, the Government introduced the Financial Markets (Conduct of Institutions) Amendment Bill, to amend the Financial Markets Conduct Act 2013. This was considered by a select committee in August 2020, and in June 2022 had its third reading and received Royal assent.

Financial institutions need to treat consumers fairly, including by:

• paying due regard to their interests
• acting ethically, transparently and in good faith
• assisting consumers to make informed decisions
• ensuring the services and products that the financial institution provides are likely to meet the requirements and objectives of likely consumers
• not subjecting consumers to unfair pressure or tactics or undue influence.

Timings

• July 2022: we commenced consultation on the proposed standard conditions for financial institution licences. See the consultation document. Submissions close 7 September 2022
• Late-2022/early-2023: we will release a licence application guide, with information about how to make an application and interpret the questions
• Late-2022/early-2023: we will release a Fair Conduct Programme information sheet to help applicants prepare for licensing by establishing their FCP
• Mid-2023: financial institution licence applications expected to begin, ~18 months prior to regime commencement.
• Early-2025: financial institution licences come into effect

Nature of application form

• A single online application form for all applicants, aimed at understanding the applicant’s business
• Applicants will need to have an established fair conduct programme (FCP) before applying. While we do not expect these to be fully implemented by at the time of applying, we do expect the FCP to have been approved by the applicant’s board of directors.

Further information can be found on the Ministry of Business Innovation and Employment website.