Page last updated: 01 September 2022

Supervisors

Supervisors

FEATURED

Key findings from the recent re-licensing of supervisors

The FMA completed a review of the licensed supervisors during the process to update their license status in 2017. Following the re-licensing application process, the FMA assessed the supervisors’ submissions, specifically reviewing their approaches to monitoring MIS managers. We wanted to determine whether supervisors were taking a consistent approach to their obligations.

Download Key Findings Report.

New Licence or replacing an existing licence

Applying for a variation to an existing licence

Variation to include a new class of licence

Levies

The Financial Markets Authority (Levies) Regulations 2012 (the Regulations), as amended in 2020 and 2022, set out the levies payable by industry. The levies are set by the Ministry of Business, Innovation, and Employment (MBIE).

The FMA receives funding from the Crown and a proportion of our costs is recouped from industry through levies.

Levy Classes

A financial markets participant falls within one or more levy ’class’, depending on what financial services they provide.

  • A levy must be paid for every levy class the financial markets participant falls within. Levies are payable on the relevant leviable event as described in column 3 of Schedule 2 in the Regulations.
  • Some levy classes have been split in order to recognise the variations in size and nature of different financial market participants.
  • Most levies are paid when making an annual confirmation to the Registrar of Financial Service Providers (the Registrar).
  • Most levies are payable to the Registrar, via the (FSPR). However, some levies are payable directly to the FMA. This is set out in column 4 of Schedule 2 in the Regulations.
  • The following levy classes are invoiced directly by the FMA:
  • Levy Class 8, Levy Class 8A, Levy Class 10, Levy Class 10A, Levy Class 13 and Levy Class 16.

Levy Class description

The table below provides a high-level description of each levy class. For the full description of levy classes, see Schedule 2 in the Regulations. 

Class Description
1 Persons making an application for registration on the   Financial Service Providers Register
2 Registered banks and licensed non-bank deposit takers
2A Registered banks and licensed non-bank deposit takers that are required to hold a conduct licence
3 Licensed insurers
3A Licensed insurers that are required to hold a conduct licence
4 Licensed supervisors of debt securities and managed   investment products in registered schemes
5 Managers (of registered schemes)
6 Persons who undertook trading activities on licensed markets, contributory mortgage brokers, trading financial products or foreign exchange on behalf of other persons (other than persons included in class 6A, 6B, 6C or 6D, authorised bodies that only provide the service under a market services licence held by a person in class 6A or 6D and DIMS wholesale providers) or licensed derivatives issuers
6A Licensed discretionary investment management service (DIMS) retail providers
6B Providers of a regulated client money or property service (as defined in section 6(1) of the FMC Act) other than persons included in class 6(a) or 6C
6C Custodians and persons providing custodial   services
6D Crowdfunding service providers and peer-to-peer lending   service providers
6E Licensed financial benchmark administrators
6F Authorised bodies
6G Financial advisers
6H Licensed financial advice providers
7 All other financial service providers that are not included in any of classes 2 – 6H
8 Listed issuers (other than persons included in class 8A)
8A Small listed issuers
9 Lodgement of a product disclosure statement (PDS)
10 Licensed market operators
10A Licensed market operators that operate growth markets (other than persons included in class 10)
11 FMC reporting entities that lodge financial statements (or   group financial statements) and auditor’s reports
12 Accredited bodies
13 Licensed overseas auditors
14 Persons that apply for registration or incorporation under the Building Societies Act 1965; the Companies Act 1993; the Friendly   Societies and Credit Unions Act 1982; or the Limited Partnerships Act 2008
15 Persons that are registered or incorporated and required   to make annual returns under the Building Societies Act 1965; the Companies   Act 1993; the Friendly Societies and Credit Unions Act 1982; or the Limited   Partnerships Act 2008
16 Climate reporting entities

Offences

It is the responsibility of each financial service provider to ensure they are registered for the service(s) they provide and have paid the appropriate levies. As part of their online annual confirmation to the Registrar, they must select all of the applicable classes to determine the levies payable and confirm the information they have provided is true, correct and complete.

Under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (the FSP Act) it is an offence to:

  • provide services you are not registered for or state you are registered for a particular financial service when you are not
  • make a representation relating to any document or information required by the FSP Act or its regulations knowing that it is false or misleading, or omit any matter knowing such omission is false or misleading.

These offences could result in a fine of up to $100,000 and/or imprisonment for individuals, and a fine of up to $300,000 for businesses.

It is also an offence under the FSP Act to fail to notify the Registrar if any of the details contained on the FSPR are no longer correct. Failure to notify could result in a fine of up to $10,000.

Levy waivers

We have discretionary power to waive a levy (in whole or part).

We will only do so if we are satisfied that the circumstances or characteristics of the financial markets participant are exceptional when compared with the circumstances or characteristics of others in the same class, so that it would make it inequitable for the person to pay the levy. The threshold is deliberately high.

The waiver power is not intended to be used to revisit settled policy positions.

Once we receive a waiver application and the fee, we will assess it.  If we decide to grant the waiver, we must notify our decision in the Gazette, and publish the decision and reasons for it on our website.

How to apply for a levy to be waived

You will need to email the following information to [email protected] with the subject line ‘Levy waiver application’.

  • Name of person or entity applying for the waiver.
  • Contact person for correspondence concerning the application including address, phone number and email.
  • Indicate the persons/entity who will receive the benefit of any waiver granted.
  • Specify which class(es) you seek a waiver from and whether a waiver is sought from the full levy or part and the amount thereof.
  • Let us know your preferred date for any waiver to take effect.
  • Explain why the waiver should be granted and why your circumstances are exceptional when compared with others in the same class.
  • Provide all relevant facts in support of your application.
  • Explain any regulatory benefit of FMA granting the waiver.
  • Give details of any previous contact with officials (including their names) at FMA or MBIE (including the Companies Office) on the matter.

How to pay your waiver application fee

You can pay by electronic deposit or internet banking. Payment can be made by applicants or law firms making applications on behalf of their clients.

The person paying the application fee must be the person who pays the subsequent fees and costs. For example, if a law firm pays the application fee, that law firm must also pay any additional fees and costs.

We recommend if law firms apply for waivers on behalf of their clients, the parties discuss and agree who will be responsible for paying the FMA’s fees before submitting a waiver application.

Payment option How to pay Additional information
Electronic deposit or internet banking Where bill pay is available please select ‘Financial Markets Authority - Other'
Otherwise, our bank details are:
Bank: Westpac
Account name: Financial Markets Authority
Account number: 03-0584-0198005-000
To ensure we process your payment correctly please provide the following information:
Particulars: Payer’s name*
Code: Waiver
Reference: Applicant’s name
You do not need to forward a hard copy of your application if paying electronically

* This is the name of the person paying the application fee. This person will be invoiced for any subsequent fees and costs. Payment by credit card is not available for this application process.

What are the fees

  • A payment of $1,265 should accompany each application.
  • This covers the application fee of $115 set out in the Financial Markets Authority (Fees) Regulations 2011 and an advance of $1,150 (including GST) for fees and costs to be incurred.
  • These regulations set out charging rates of $230 (including GST) per hour for time spent by FMA Board members and $178.25 (including GST) per hour for time spent by FMA staff.
  • These regulations are set by MBIE.

How long does it take

  • Once we have been provided with all relevant information, it generally takes around six weeks to process an application.
  • This may be longer if any policy questions arise.
  • If your application is urgent, please provide the date you need the decision by.
  • You must also provide reasons for requesting urgent consideration.

Granted waivers

 

Supervisors must comply with the Financial Markets Supervisors Act 2011 (the FMS Act) and supporting regulations. Your duty to meet your professional standard of care and your obligation to act in the best interests of investors need to be at the forefront of determining how you go about your role as supervisor. Compliance involves the following activities:

Reporting

Reporting issuer breaches

Disclosing contraventions or potential contraventions by issuers is an important part of the licensing regime. It enables us to monitor the extent and nature of non-compliance by the issuers being supervised; assess whether the supervisor has adequate plans to respond to a breach; monitor the effectiveness of that action; if necessary work collaboratively, where appropriate, with supervisors to ensure they take steps to address any breach.

When to report

Under section 203 of the FMC Act, the supervisor of a debt security or registered scheme must report to us a material contravention, or a possible material contravention, of an issuer’s obligations. The supervisor must also tell how they plan to act, and the timeline for the action. The obligation to report contains a materiality threshold, which requires a judgment to be made. We recommend a supervisor takes a precautionary approach and matters are reported where they have begun an internal discussion between supervisor staff as to whether the matter is material or not. This approach is consistent with: 

  • the purpose and function of section 203 reports
  • a focus on investor protection
  • the development of a mutually supportive relationship between us and supervisors.

In particular, if a potential contravention relates to a matter that may result in a statutory penalty for the issuer, the contravention should only go unreported if deemed immaterial, and the supervisor is comfortable that the relevant regulator will not take action. 

If a supervisor thinks a contravention or likely contravention has occurred which may adversely impact the investors' interests, the contravention should be reported. It may be helpful to view the matter from an investor's perspective (ie, if you were an investor in the licensed entity, would you consider the contravention to be material?). 

Following a section 203 report to us, we might not necessarily direct the supervisor to take a course of action, unless we see a clear need to do so to protect investors. There have been concerns that a supervisor could be liable to action (from a supervised entity) should a contravention reported be found to be immaterial. Both sections 203 and 204 of the FMC Act have provisions detailing that the protections of section 214 of the FMC Act apply to reports made in good faith.

What to report

We expect each report under section 203 to fully comply with sections 203(1)(a) and 203(1)(b) to tell us:

  • what steps the supervisor plans to take when there is a contravention or possible contravention
  • what date the steps are to be taken.

A date range can be provided. You need to tell us if you do not plan further action. 

Following the initial section 203 notification, we may ask the supervisor for reports on the progress and success of the action taken by the supervisor to ensure the supervised entity is taking remedial action. We should be told if the supervised entity does not respond to the supervisor's plan.

Contraventions by supervisors

Under the FMS Act, the High Court may fine a supervisor up to $600,000, if the supervisor contravenes a licensee obligation. Licensee obligations mean an obligation imposed on a supervisor by one, any or all of the following:

  • every governing document
  • the financial product’s terms of offer
  • a court order on a supervised interest
  • the FMS Act 2011
  • the Financial Markets Conduct Act 2013
  • the KiwiSaver Act 2006
  • the Non-bank Deposit Takers Act 2013
  • the Retirement Villages Act 2003.

Supervisors may also be liable to compensate investors as a result of the contravention. Under the FMS Act, anyone acting as a supervisor without a licence or claim to hold a licence may be fined up to $600,000.

Supervisor relationships and accountabilities

With managed investment schemes

For managed investment schemes, you must actively supervise the manager’s performance of its functions and issuer obligations, and the financial position of the manager and the scheme. This is overlaid with the need to act on behalf of scheme participants in relation to the manager, the governing document, and issuer obligations. FMA’s licensing of MIS managers does not take away from your need to fulfil these requirements. Different MIS product classes will have different supervisory approaches and documentation. This reflects the need for a ‘fit for purpose’ tailored supervisory focus.

With debt issuers

For debt issuers, you must supervise the issuer’s performance of its issuer obligations. You must also satisfy yourself that the issuer’s assets are sufficient to discharge the amounts of the debt securities as they become due. Again this is overlaid with the responsibility to act on behalf of the debt security holders in relation to the issuer and the trust deed. Since debt securities are fundamentally different products with different risks, and with governing documents that serve a number of purposes, we expect that your supervisory approach to debt issuers will be different to that of MIS.

With the FMA

  • As a supervisor, you have the core supervisory and compliance monitoring role for your supervised interests. 
  • To avoid any duplication in the supervision of MIS, our focus will be on monitoring supervisors to ensure you meet your general obligations under the FMC Act.
  • The business of detailed day-to-day supervision of specific MIS is the role of the supervisor. We believe this is the best way to build investor trust and achieve greater regulatory efficiencies, improved compliance standards, and consistency across the industry. 
  • We will check you are meeting your obligations and hold you accountable for the proper discharge of frontline supervisory functions through the FMC Act, the Financial Markets Supervisors Act, and licence conditions.

Financial reporting

As an FMC reporting entity, you must do all of the following:

  • keep proper accounting records to help you prepare compliant financial statements — records must be kept in English and a copy must be kept in NZ
  • prepare financial statements for your group's operations — those financial statements must comply with a generally accepted accounting practice in NZ
  • have your financial statements audited by a licensed auditor or registered audit firm
  • lodge your financial statements and the auditor’s report on them with the Companies Office within 4 months after your balance date

AML/CFT

The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the Act) imposes several obligations: 

  • You must provide a written risk assessment of the money laundering and financing of terrorism activity you could expect in the course of running your business.
  • You are required to implement an anti-money laundering and countering financing of terrorism programme that includes procedures to detect, deter, manage and mitigate money laundering and the financing of terrorism.
  • You are required to appoint a compliance officer to administer and maintain your programme.
  • You are required to perform due diligence processes on your customers. This includes customer identification and verification of identity.
  • You are required to report suspicious transactions. 

Read more about your AML/CFT reporting obligations

Fair Dealing

The FMC Act sets out minimum compliance standards of behaviour for people operating in the financial markets. It prohibits:

  • Misleading or deceptive conduct
  • False or misleading representations
  • Unsubstantiated representations
  • Offers of financial products in the course of unsolicited meetings

Read more about the Financial Markets Conduct Act

Key findings from the recent re-licensing of supervisors

The FMA completed a review of the licensed supervisors during the process to update their license status in 2017. Following the re-licensing application process, the FMA assessed the supervisors’ submissions, specifically reviewing their approaches to monitoring MIS managers. We wanted to determine whether supervisors were taking a consistent approach to their obligations.

Download Key Findings Report.

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