Financial Markets Conduct Act 2013

Enforcement, liability, and appeals - FMA's enforcement powers - Direction orders

468: When FMA may make direction orders

You could also call this:

"When the FMA can tell you what to do if you break or might break a financial market rule."

Illustration for Financial Markets Conduct Act 2013

The FMA can make a direction order if you do something wrong or might do something wrong. This can happen if you break a rule in the Part 2 fair dealing provision, the Part 3 offer provision, the Part 4 governance provision, the Part 5 market provision, the Part 6 services provision, the Part 7 financial reporting provision, or the Part 7A climate-related disclosure provision. The FMA can also make a direction order if you break an infringement offence provision or an obligation under Schedule 3.

The FMA can make a direction order even if you have not broken the rule before. They can also make a direction order if they think you might break the rule in the future. This can happen whether or not breaking the rule would cause harm to someone.

In this case, an infringement offence provision is a rule that you can break and get an infringement offence. The FMA can make a direction order if you break a term or condition of an exemption granted under subpart 2 of Part 9 or an exemption from a licensing requirement under section 546(1)(c) to (cc).

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Part 8Enforcement, liability, and appeals
FMA's enforcement powers: Direction orders

468When FMA may make direction orders

  1. The FMA may make a direction order if it is satisfied that, by engaging in any conduct, a person (the relevant person) has contravened, or is likely to contravene,—

  2. a Part 2 fair dealing provision:
    1. a Part 3 offer provision:
      1. a Part 4 governance provision:
        1. a Part 5 market provision:
          1. a Part 6 services provision:
            1. a Part 7 financial reporting provision:
              1. a Part 7A climate-related disclosure provision:
                1. an infringement offence provision:
                  1. an obligation under Schedule 3 or under a trust deed for a Schedule 3 scheme:
                    1. clause 21, 22(1)(b) or (c), 25, or 39 of Schedule 4 (transitional requirements):
                      1. a term or condition of an exemption granted under subpart 2 of Part 9 or an exemption from a licensing requirement under section 546(1)(c) to (cc).
                        1. If the FMA is satisfied that, by engaging in any conduct, the relevant person is likely to contravene a provision referred to in subsection (1) in the future, the FMA may make a direction order—

                        2. whether or not the relevant person has previously contravened the provision; and
                          1. whether or not there is an imminent danger of substantial damage to any person if the provision is contravened.
                            1. In this section, an infringement offence provision is a provision in respect of which a contravention is an infringement offence.

                            Notes
                            • Section 468(1)(fa): inserted, on , by section 10 of the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021 (2021 No 39).
                            • Section 468(1)(j): amended, on , by section 15 of the Financial Markets (Conduct of Institutions) Amendment Act 2022 (2022 No 36).