4Act applies to offer unless former enactments continue to apply

1. This Act applies to an offer of financial products unless the former enactments apply in accordance with this Part.

2. In this Part,—

   1978 Act means the Securities Act 1978

   12-month date means the date that is 12 months after the commencement of this clause

   2-year date means the date that is 2 years after the commencement of this clause

   continuous issue securities means debt securities or managed investment products that are of a kind that were, before the commencement of this clause, continuously offered by a continuous issuer to the public for subscription

   continuous issuer means an issuer that in the ordinary course of its business before the commencement of this clause continuously offered debt securities or managed investment products to the public for subscription

   former enactments means each of the following:

   1. the 1978 Act (as in force immediately before the commencement of this clause):
   2. the Securities Regulations 2009 and any other regulations made under the 1978 Act (as in force immediately before the commencement of this clause):
   3. exemptions granted under the 1978 Act (to the extent that those exemptions apply to the relevant offer of securities)—
      1. as in force immediately before the commencement of this clause (but subject to any variation or revocation under clause 11); or
      2. as in force after being granted by the FMA under clause 11.

3. In this Part, issuer, prospectus, registered prospectus, and securities have the same meanings as in the 1978 Act.

4. In this Part, a reference to an offer of securities to the public has the same meaning as in section 3 of the 1978 Act.

5Former enactments continue to apply if prospectus registered before commencement

1. If securities are offered in a prospectus that is registered under the 1978 Act before the commencement of this clause, the former enactments continue to apply to the offer and allotment of those securities under that prospectus as if this Act had not been enacted.

6Issuer may elect to comply with former enactments instead of this Act if prospectus registered within 12 months or 2 years of commencement

1. Despite the repeal of the 1978 Act, an issuer of securities may register a prospectus in respect of the securities in accordance with the former enactments on or before—

2. the 2-year date in the case of continuous issue securities; or
3. the 12-month date in any other case.

4. If securities are offered in a prospectus that is registered under subclause (1) and the issuer makes an election under subclause (3), the former enactments apply, as if this Act had not been enacted, to the offer and allotment of those securities under that prospectus.

5. For the purposes of subclause (2), an issuer may elect for the former enactments to apply to an offer of securities by including a statement in the prospectus to the effect that the Securities Act 1978 applies to the offer.

6. The statement referred to in subclause (3) may include additional information about an applicable exemption granted under the 1978 Act that is necessary to ensure that the statement is not misleading.

7Former enactments apply if no prospectus required unless issuer elects otherwise

1. If, under the 1978 Act or an exemption granted under that Act, no registered prospectus is required for an offer of securities to the public in New Zealand, the former enactments apply, as if this Act had not been enacted, to any offer and allotment of those securities that is made before the close of the 2-year date unless the issuer makes an election, under subclause (3), for this Act to apply.

2. However,—

3. subclause (1) does not permit an offer to be made in reliance upon section 5(2CB) or (2CBA) of the 1978 Act:
4. subclause (1) does not apply in the prescribed circumstances.

5. For the purposes of subclause (1), an issuer may elect for this Act to apply to an offer of securities made after a particular date by—

6. giving to the FMA, before that date, a notice to the effect that this Act applies to the offer of the securities made after that date; and
7. including a copy of that notice on an Internet site maintained by, or on behalf of, the issuer at all reasonable times during the period between that date and the earlier of the close of the offer or the close of the 2-year date.

8This Act and 1978 Act are (on transitional basis) alternative means of compliance

1. If, in accordance with this Part,—

2. this Act applies to an offer of securities, the former enactments do not apply to the offer:
3. the former enactments apply to an offer of securities, this Act does not apply to the offer.

9All offers and allotments under old law must cease after scheme registered

1. Despite clauses 4 to 8, no offer or allotment of managed investment products may be made under the former enactments after the date on which the managed investment scheme to which the products relate becomes a registered scheme (or is treated as being a registered scheme under Part 2 of this schedule).

10All offers and allotments under old law must cease within 2 years of commencement

1. Despite clauses 4 to 8, no offer or allotment of securities may be made under the former enactments after the 2-year date (and this Act applies to all offers and acquisitions of financial products made after that date).

10ABanks’ regulatory capital

1. This clause applies in respect of convertible securities offered and allotted before the close of the 2-year date (unless the issuer makes an election as referred to in clause 7(3)).

2. Despite clauses 7 and 10,—

3. the former enactments apply, as if this Act had not been enacted, to any offer and allotment of the convertible securities and the specified equity securities to which the convertible securities relate; and
4. an allotment of those specified equity securities may be made before, on, or after the 2-year date; and
5. in the case of a specified equity security that is allotted after the 2-year date, clause 20 applies to the security on and after its allotment.

6. In this clause, convertible security and specified equity security have the same meanings as in the Securities Act (Banks’ Regulatory Capital) Exemption Notice 2014 (as in force before its revocation).

7. In this clause, former enactments—

8. has the same meaning as in clause 4(2); and
9. includes the Securities Act (Banks’ Regulatory Capital) Exemption Notice 2014 and the Securities Act (Heartland Bank Regulatory Capital) Exemption Notice (No 3) 2016 as in force on 30 November 2016 (as if those notices continued in force after their revocation).

11FMA may continue to perform and exercise functions, duties, and powers

1. If the former enactments continue to apply to an offer of securities, the FMA may continue to perform and exercise all of its functions, duties, and powers conferred or imposed on it by or under the former enactments as if this Act had not been enacted (for example, it may grant, vary, or revoke an exemption under section 70B of the 1978 Act).

12Part does not prevent PDS from being lodged

1. Nothing in this Part prevents an issuer from lodging a PDS in preparation for making an offer of financial products under Part 3 of this Act.

13Part 2 applies even if former enactments apply to offer

1. Despite clause 8, Part 2 of this Act (and any other provision of this Act relating to the enforcement, application, or effect of that Part) applies to an offer of securities to which the former enactments apply.

2. However, conduct that contravenes, or leads to liability under, sections 55A to 57 (in respect of an untrue statement) or 58 of the 1978 Act does not contravene sections 19 to 23 of this Act.

3. For the purpose of this section, conduct must be treated as contravening, or leading to liability under, sections 55A to 57 or 58 of the 1978 Act even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.

14Unsubstantiated representations prohibitions do not apply to prospectuses and investment statements

1. Section 23 and the provision of the Fair Trading Act 1986 that corresponds to section 23 do not apply to a representation made in a registered prospectus or an investment statement (within the meaning of the 1978 Act).

2. Subclause (1) applies despite clause 13(1).

15Part applies to securities allotted under Securities Act 1978

1. This Part applies to an allotted security offered pursuant to an offer for which, or for which but for an exemption granted by the FMA or the Securities Commission under the 1978 Act, an investment statement or a registered prospectus, or both, is or was required under that Act.

2. However, this Part does not apply to a security if, before the commencement of this clause, the security was cancelled, redeemed, or forfeited, or all of the obligations owing under the security had been discharged.

3. A security referred to in subclause (1) includes a security allotted under an offer to which the 1978 Act applies under Part 1 of this schedule.

16Interpretation in this Part

1. In this Part,—

   1978 Act means the Securities Act 1978

   effective date, in relation to a particular security, means the earlier of the dates set out in clause 19(1)

   former enactments—

   1. means the 1978 Act, the Securities Regulations 2009, exemptions granted under the 1978 Act, and any other enactments made under the 1978 Act; and
   2. includes,—
      1. in relation to an interest in a KiwiSaver scheme, the KiwiSaver Act 2006:
      2. in relation to an interest in a superannuation scheme (other than a KiwiSaver scheme), the Superannuation Schemes Act 1989:
      3. in relation to a unit in a unit trust, the Unit Trusts Act 1960:
      4. the Securities Trustees and Statutory Supervisors Act 2011

   issuer, in relation to a security, means,—

   1. before the effective date, the issuer within the meaning of the 1978 Act:
   2. on and after the effective date, the issuer within the meaning of section 11

   KiwiSaver schemes register means the KiwiSaver schemes register established under the KiwiSaver Act 2006

   transition period has the meaning set out in clause 19(1).

2. In this Part, investment statement, registered prospectus, and securities have the same meanings as in the 1978 Act (as in force immediately before the commencement of this clause).

3. In this clause and clause 18, KiwiSaver scheme, scheme, superannuation scheme, unit, and unit trust have the same meanings as in section 2(1) of the 1978 Act (as in force immediately before the commencement of this clause).

17Former enactments continue to apply until effective date in accordance with regulations

1. If a former enactment would apply (but for its repeal, revocation, or amendment by this Act) to a security to which this Part applies (or to any scheme to which the security relates), that enactment continues to apply during the transition period in accordance with regulations made under section 547 (if any).

2. See section 547, under which regulations may provide for former enactments to continue to apply (or to apply with modifications or additions), or for provisions of this Act or the Financial Markets (Repeals and Amendments) Act 2013 to apply with modifications or additions, as set out in the regulations.

3. Despite subclauses (1) and (2), the provisions of the KiwiSaver Act 2006 amended by sections 101, 105, and 107 of the Financial Markets (Repeals and Amendments) Act 2013 apply as amended to an interest in a KiwiSaver scheme to which this Part applies and to that KiwiSaver scheme.

18KiwiSaver schemes, superannuation schemes, and unit trusts continue under former enactments until effective date

1. If a security to which this Part applies is—

2. an interest in a KiwiSaver scheme, the KiwiSaver scheme continues to be registered in the KiwiSaver schemes register during the transition period as if this Act had not been enacted:
3. an interest in a superannuation scheme (other than a KiwiSaver scheme), the superannuation scheme continues to be registered under the Superannuation Schemes Act 1989 during the transition period as if this Act had not been enacted:
4. a unit in a unit trust, the unit trust continues to be subject to the Unit Trusts Act 1960 during the transition period as if this Act had not been enacted.

5. This clause does not limit clause 17.

19Transition period

1. In this Part, the transition period for a particular security is the period beginning on the date on which this clause comes into force and ending on the close of the day before the earlier of the following dates:

2. the date that the issuer of the security elects; or
3. the date that is 2 years after the commencement of this clause.

4. If the issuer elects an effective date that is earlier than 2 years after the commencement of this clause, the issuer must notify the FMA and the Registrar of the elected date at least 20 working days before that date.

20Ongoing requirements of this Act apply on and after effective date

1. On and after the effective date for a particular security to which this Part applies, the following apply to the security (and, in the case of a managed investment product, to the managed investment scheme to which it relates):

2. subpart 4 of Part 3 of this Act (ongoing disclosure) other than section 95:
3. Part 4 of this Act (governance of financial products):
4. Part 7 of this Act (financial reporting):
5. any regulations made for the purposes of subpart 4 of Part 3, Part 4, or Part 7 of this Act:
6. any other provision of this Act relating to the enforcement, application, or effect of subpart 4 of Part 3, Part 4, or Part 7 of this Act.

7. The provisions referred to in subclause (1) apply with all necessary modifications as if the security had been offered and allotted under a regulated offer under this Act.

8. For the purposes of subclause (1), the security must, on and after the effective date, be treated as being a regulated product under section 451(1)(a) and, accordingly, the issuer must be treated as being an FMC reporting entity (unless section 452 applies).

9. See section 56 of the Financial Reporting Act 2013 (which provides for the former law to generally continue to apply to accounting periods that commence before the commencement of that Act).

10. However, subclause (1) and clauses 21, 22, and 30 (obligations relating to registration of a scheme under this Act) do not apply to a security if,—

11. before the effective date, the security is cancelled, redeemed, or forfeited, or all of the obligations owing under the security have been discharged; or
12. on the effective date, the security is not a financial product within the meaning of section 7 (but see clause 33); or
13. under the 1978 Act, the security was a debt security but, as a result of section 5(2C) or (3) of that Act, section 33(2) of that Act did not apply to the security; or
14. under the 1978 Act, the security was a participatory security but, as a result of section 5(3) of that Act, section 33(3) of that Act did not apply to the security.

21Issuer of debt security must lodge trust deed and supply information

1. If a security to which this Part applies is a debt security (within the meaning of section 8), the issuer must—

2. ensure that a copy of the trust deed that complies with sections 104 to 106 is lodged with the Registrar before the effective date; and
3. supply to the Registrar and the FMA, before the effective date,—
   1. the names and addresses of the persons who, on the effective date, will be the issuer and the licensed supervisor; and
   2. all other prescribed information relating to the debt security.

4. See subpart 3 of Part 8 of this Act, which provides for civil liability for a contravention of subclause (1).

22Managed investment scheme treated as being registered and issuer must supply information

1. If a security to which this Part applies is a managed investment product,—

2. the managed investment scheme to which the product relates (the scheme) must, on and after the effective date, be treated as being a registered scheme; and
3. the issuer must ensure that a copy of the governing document for the scheme that complies with sections 135 to 137 is lodged with the Registrar before the effective date; and
4. the issuer must supply to the Registrar and the FMA, before the effective date,—
   1. the name and address of the person who, on the effective date, will be the manager; and
   2. the name and address of the person who, on the effective date, will be the licensed supervisor (unless the scheme is a restricted scheme); and
   3. all other prescribed information relating to the managed investment product and the scheme.

5. See subpart 3 of Part 8 of this Act, which provides for civil liability for a contravention of subclause (1)(b) or (c).

6. Nothing in this clause or clause 23 prevents the FMA from—

7. directing that the registration of a scheme to which this clause applies be cancelled under section 195; or
8. exercising any other power in respect of such a scheme.

23Type of registration

1. A managed investment scheme that is treated as being registered under clause 22 must be treated as being registered on the register of managed investment schemes as the 1 or more of the following types of scheme that apply to it:

2. a KiwiSaver scheme if, immediately before the effective date, the scheme was registered as a KiwiSaver scheme in the KiwiSaver schemes register:
3. a KiwiSaver scheme that is a restricted scheme if paragraph (a) applies and, immediately before the effective date, the scheme was identified as a restricted scheme on the KiwiSaver schemes register:
4. a superannuation scheme if, immediately before the effective date, the scheme was registered under the Superannuation Schemes Act 1989 (unless paragraph (f) applies):
5. a superannuation scheme that is a restricted scheme if paragraph (c) applies and an Order in Council has designated the scheme as a restricted scheme under subclause (2):
6. a superannuation scheme that is a legacy scheme if paragraph (c) applies and an Order in Council has designated the scheme as a legacy scheme under subclause (2):
7. a workplace savings scheme if, immediately before the effective date, the scheme was registered under the Superannuation Schemes Act 1989 and an Order in Council has designated the scheme as a workplace savings scheme under subclause (2):
8. a workplace savings scheme that is a restricted scheme if paragraph (f) applies and an Order in Council has designated the scheme as a restricted scheme under subclause (2):
9. a restricted scheme that is an employer-related scheme if paragraph (b), (d), or (g) applies and an Order in Council under subclause (2) has designated the scheme as an employer-related scheme:
10. a complying superannuation fund if paragraph (c) applies and, immediately before the effective date, the scheme was approved as a complying superannuation fund under section 35 of the Superannuation Schemes Act 1989.

11. The Governor-General may, by Order in Council, on the advice of the Minister given in accordance with a recommendation of the FMA,—

12. designate a scheme as a restricted scheme for the purposes of subclause (1)(d) or (g):
13. designate a scheme as a legacy scheme for the purposes of subclause (1)(e):
14. designate a scheme as a workplace savings scheme for the purposes of subclause (1)(f):
15. designate any scheme that will be a restricted scheme under this section as being an employer-related scheme for the purposes of section 172.

16. A scheme may be designated under subclause (2)(b) or (c) as a type of scheme in respect of a section of the scheme only and, in that case, subclause (1) treats the scheme as being on the register of managed investment schemes as that type in respect of that section of the scheme.

17. Section 131(1)(c) (which prevents certain changes without the FMA's consent to the conditions of entry of scheme participants) applies to a restricted scheme on and after the date on which a designation by Order in Council comes into force under subclause (2) in all cases as if that date of designation were the date of the scheme's registration under this Part.

18. An order under this clause is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

24Registrar to amend register

1. The Registrar must, on or as soon as practicable after the effective date for a managed investment scheme to which clause 22(1)(a) applies, amend the register of managed investment schemes to include an entry relating to the scheme.

2. The Registrar is not required to act under subclause (1) before clause 22(1)(b) and (c) have been complied with.

25Restriction on making regulated offers and accepting contributions if requirements have not been complied with

1. This clause applies if an issuer contravenes clause 22(1)(b) or (c) in respect of a managed investment scheme that is treated as being a registered scheme under clause 22(1)(a).

2. The issuer must not, on and after the effective date, make a regulated offer of a managed investment product, or accept further contributions, in respect of that managed investment scheme.

3. Subclause (2) ceases to apply if—

4. the issuer lodges with the Registrar a copy of the governing document for the scheme that complies with sections 135 to 137; and
5. the issuer supplies to the Registrar and the FMA the prescribed information; and
6. the register of managed investment schemes includes an entry relating to the scheme.

7. See subpart 3 of Part 8 of this Act, which provides for civil liability for a contravention of this clause.

26Issuer may amend or replace governing document with FMA's consent

1. This clause applies—

2. to a governing document that, immediately before the commencement of this clause, relates to a debt security or constitutes or governs a scheme; and
3. despite anything to the contrary in the governing document or in any enactment, rule of law, or agreement, including anything relating to the consent of any person to the making of amendments to the governing document.

4. The issuer of the debt security or the manager of the scheme (as the case may be) may amend or replace the governing document with the FMA’s consent if the FMA is satisfied that—

5. the amendment or replacement is necessary or desirable to ensure, or in connection with ensuring, that the governing document complies with the requirements of this Act; or
6. (for any amendments or differences in the replaced governing document to which paragraph (a) does not apply) the procedures of the existing governing document for amendments have been complied with.

7. An amendment or a replacement made under this clause must be treated for all purposes as if it were made in accordance with the governing document.

8. On the amendment or replacement under this clause of a governing document that constitutes or governs a scheme,—

9. the scheme must be treated as the same scheme as it was immediately before the amendment or replacement of the existing governing document; and
10. the persons who were members of the scheme immediately before the amendment or replacement of the existing governing document continue to be members of the same scheme; and
11. the assets or liabilities of a scheme or fund must be treated as if they vested in the scheme or fund immediately after the amendment or replacement of the existing governing document, but for the purposes of the Inland Revenue Acts this must be treated as if it is not a transfer (as defined in section YA 1 of the Income Tax Act 2007).

12. In this clause and clauses 27 and 28, scheme has the same meaning as in section 2(1) of the 1978 Act (as in force immediately before the commencement of this clause).

13. To avoid doubt, this clause does not limit the ways in which a governing document may be amended or replaced in accordance with its terms or any enactment or rule of law.

14. The FMA's discretion to set preconditions for requests to it includes (without limitation) a discretion to set preconditions that satisfy the FMA that it is appropriate for the amendment or replacement to be done under this section rather than by means of another power or process.

27Conversion of governing documents to separate governing documents (Repealed)

28Amalgamation of schemes (Repealed)

29Amended enactments continue to apply or have effect in connection with securities in accordance with regulations

1. If, before the commencement of this clause, an enactment that is amended by this Act applied, or had an effect, in connection with a security to which this Part applies, the enactment continues to apply, or have the effect, in connection with the security in accordance with regulations made under section 547 (if any) until the effective date.

2. See section 547, under which regulations may provide for an enactment that is amended by this Act to continue to apply (or to apply with modifications or additions), or for provisions of this Act or the Financial Markets (Repeals and Amendments) Act 2013 to apply with modifications or additions, as set out in the regulations.

3. Subclause (1) must be treated as applying to a security offered under the 1978 Act in accordance with Part 1 of this schedule.

4. See clause 36 (amended enactments continue to apply or have effect in connection with schemes).

30Issuer must send notification to security holders

1. The issuer of a security must, before or within 3 months after the effective date, send a written notice containing the following information to the security holder at the holder's last known address:

2. the effective date and a statement to the effect that the requirements of this Act will apply after that date:
3. the names and addresses of the issuer, the supervisor (if any), and the custodian (if any):
4. in the case of a debt security or managed investment product,—
   1. a statement to the effect that the holder may obtain a copy of the governing document by electronic means; and
   2. a statement to the effect that the holder has a right to receive from the issuer, free of charge, a copy of the governing document if the holder, within 15 working days of receiving the notice, makes a request to the issuer to receive a copy of the governing document:
5. if a PDS has been lodged for an offer of financial products of the same class as the security, a statement to the effect that the holder may obtain a copy of the PDS by electronic means:
6. in the case of a managed investment product, the statement of investment policy and objectives or a statement to the effect that the holder may obtain a copy of that statement by electronic means:
7. if the notice contains a statement to the effect that the holder may obtain a copy of a document by electronic means, a statement as to how the holder may obtain a copy of the document by electronic means (for example, from a specified Internet site address):
8. any other prescribed information.

9. This section does not apply to a security referred to in clause 20(3).

10. If a security holder, within 15 working days of receiving the notice, makes a request to the issuer to receive a copy of the governing document, the issuer must, as soon as practicable, send to the holder, free of charge, a copy of that document.

11. A person who contravenes this clause commits an offence and is liable on conviction to a fine not exceeding $50,000.

12. The offence in this clause is an infringement offence (see subpart 5 of Part 8 of this Act).

13. In this clause and clause 31, security holder means,—

14. in the case of a security to which section 215(1) does not apply, the holder of that security on the date that the notice is sent under subclause (1); or
15. in the case of any other security, the person who is registered as the holder of the security in a register kept under subpart 4 of Part 4 of this Act on the date that the notice is sent under subclause (1).

31PDS treated as having been given

1. This clause applies if—

2. a notice is sent to a security holder under clause 30 before the effective date; and
3. a PDS has, before the effective date, been lodged for an offer of financial products of the same class as the security held by the security holder; and
4. a statement is included in the notice referred to in paragraph (a) as required by clause 30(1)(d); and
5. the security held by the security holder is a financial product that the issuer, in the ordinary course of its business, continuously offers for issue.

6. The PDS referred to in subclause (1)(b) must be treated as having been given to the security holder for the purposes of section 50.

32FMA may continue to perform and exercise functions, duties, and powers

1. If the former enactments continue to apply to securities or a scheme under this Part, the FMA may continue to perform and exercise all of its functions, duties, and powers conferred or imposed on it by or under the former enactments as if this Act had not been enacted (for example, it may grant, vary, or revoke an exemption under section 70B of the 1978 Act).

33Certain requirements of former law continue for participatory securities that are not financial products

1. This clause applies to a participatory security to which this Part applies if—

2. a statutory supervisor was, or was required to be, appointed in respect of the security under section 33(3) of the Securities Act 1978; and
3. on the effective date, the security is not a financial product within the meaning of section 7.

4. However, this clause—

5. does not apply in relation to a participatory security if, before the effective date, the security was cancelled, redeemed, or forfeited, or all of the obligations owing under the security had been discharged:
6. ceases to apply to a security (and the scheme to which it relates) if the participatory security holders in the scheme opt out of this clause by way of a resolution approved by those holders holding no less than 75% of the value of the participatory securities.

7. The following enactments continue to apply on and after the effective date (as if this Act had not been enacted) to a security to which this clause applies, the scheme to which the security relates, and the statutory supervisor of the security:

8. sections 45, 48, and 49 of the 1978 Act:
9. regulations 41 and 42 and Schedules 16 and 17 of the Securities Regulations 2009:
10. any other provision of the 1978 Act or the Securities Regulations 2009 relating to the enforcement, application, or effect of the provisions referred to in paragraph (a) or (b) or the making of regulations relating to, or the granting of exemptions from compliance with, those provisions:
11. the Securities Trustees and Statutory Supervisors Act 2011.

12. For the purposes of this clause, the Governor-General may, by Order in Council, make regulations under section 70(1)(g) of the 1978 Act (as if that Act continued in force) for the purpose of replacing any regulations made under that paragraph (and those regulations that are replaced then cease to apply under subclause (3)).

13. Regulations for the purposes of subclause (4) are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

34Unit trusts in relation to which offers to public have not been made

1. This clause applies to a unit trust to which the Unit Trusts Act 1960 applied immediately before the commencement of this clause unless Part 2 of this schedule applies to any unit in the unit trust.

2. The Unit Trusts Act 1960 continues to apply during the transition period described in subclause (3) as if this Act had not been enacted.

3. The transition period for a unit trust is the period beginning on the date on which this clause comes into force and ending on the close of the day before the earlier of the following dates:

4. the date that the unit trust is registered as a registered scheme under this Act; or
5. the date that is 2 years after the commencement of this clause.

6. In this clause, unit and unit trust have the same meanings as in section 2(1) of the Securities Act 1978.

35Superannuation schemes in relation to which offers to public have not been made

1. This clause applies to a superannuation scheme that, immediately before the commencement of this clause, was registered under the Superannuation Schemes Act 1989 unless Part 2 of this schedule applies to any interest in the scheme.

2. The Superannuation Schemes Act 1989 continues to apply during the transition period described in subclause (3) as if this Act had not been enacted.

3. The transition period for a superannuation scheme is the period beginning on the date on which this clause comes into force and ending on the close of the day before the earlier of the following dates:

4. the date that the scheme is registered as a registered scheme under this Act or is approved as a Schedule 3 scheme; or
5. the date that is 2 years after the commencement of this clause.

36Amended enactments continue to apply or have effect in connection with schemes in accordance with regulations

1. If, before the commencement of this clause, an enactment that is amended by this Act applied, or had an effect, in connection with a specified scheme, the enactment continues to apply, or have the effect, in connection with the specified scheme in accordance with regulations made under section 547 until the end of the transition period.

2. See section 547, under which regulations may provide for an enactment that is amended by this Act to continue to apply (or to apply with modifications or additions), or for provisions of this Act or the Financial Markets (Repeals and Amendments) Act 2013 to apply with modifications or additions, as set out in the regulations.

3. In this clause and clause 37,—

   specified scheme means any of the following:

   1. a KiwiSaver scheme, superannuation scheme, or unit trust referred to in clause 18:
   2. a unit trust referred to in clause 34:
   3. a superannuation scheme referred to in clause 35

   transition period means, in relation to a specified scheme, the transition period that applies to the scheme under Part 2 of this schedule or clause 34 or 35 (as the case may be).

37KiwiSaver schemes and superannuation schemes are retirement schemes during transition period

1. A specified scheme that is a KiwiSaver scheme or superannuation scheme must, during the transition period, be treated as being a retirement scheme (as defined in section 6(1)).

38Remaining trustees (if any) cease to hold office

1. This clause applies to a person (if any) who is a trustee of a registered scheme that is a trust and who is not the manager or supervisor of the scheme under this Act.

2. The person ceases to hold office at the end of the transition period referred to in clause 36(3), provided that there is a manager or supervisor for the scheme as required by this Act.

39Restricted schemes have 3 years to sell investments so as to comply with related party asset 5% cap rule

1. The manager of a restricted scheme must ensure that, on or before the third anniversary after the date on which this clause comes into force, the restricted scheme does not have an in-house assets ratio of 5% or more in relation to any related party or scheme participant (as determined in accordance with section 176).

40Savings related to Superannuation Schemes Act 1976

1. All superannuation annuities, superannuation allowances, annuities, amounts, expenses, and refunds that were payable out of the Consolidated Account under sections 5A(2), 6(4), and 7(6) of the Superannuation Schemes Act 1976 (which related to certain payments out of the Consolidated Account as a result of the dissolution of the New Zealand Superannuation Corporation and the New Zealand Superannuation Scheme) continue to be so payable as if those sections and section 5A(3) of that Act had not been repealed.

2. This clause applies despite the repeal of—

3. the Superannuation Schemes Act 1976 by section 32 of the Superannuation Schemes Act 1989; and
4. section 33 of the Superannuation Schemes Act 1989 by this Act.

41Repealed enactments continue to be financial markets legislation

1. Every enactment that is repealed or revoked by this Act and that was, immediately before the commencement of this clause, financial markets legislation within the meaning of section 4 of the Financial Markets Authority Act 2011 must be treated as continuing to be financial markets legislation within the meaning of that Act (and to be referred to within the same Part of Schedule 1 of that Act).

42Transition process for existing financial product markets

1. In this clause,—

   deemed licence means a financial product market licence that an existing exchange is, by subclause (2), deemed to hold

   existing exchange means a person that, immediately before the commencement of subclause (2), was a registered exchange within the meaning of section 2(1) of the Securities Markets Act 1988 or an authorised futures exchange within the meaning of section 37(1) of that Act

   existing market means a market that, immediately before the commencement of subclause (2), was a registered market within the meaning of section 2(1) of the Securities Markets Act 1988 or an authorised futures market within the meaning of section 37(1) of that Act

   existing market rules means market rules, within the meaning of section 2(1) of the Securities Markets Act 1988, that, immediately before the commencement of subclause (2), applied to an existing market

   existing unlicensed market operator means a person other than an existing exchange that, immediately before the commencement of subclause (7), lawfully operated a securities market or a futures market within the meaning of the Securities Markets Act 1988

   market of an existing exchange, in relation to an existing exchange, means an existing market that the existing exchange was, immediately before the commencement of subclause (2), authorised to operate

   transitional period means the period that commences on the commencement of subclause (7) and ends on the commencement of section 310.

2. On and from the commencement of this subclause, every existing exchange is deemed to hold, under this Act, for each market of the existing exchange, a financial product market licence that authorises the existing exchange to operate a financial product market that is of the same kind as the existing market of the existing exchange.

3. Every existing market rule for an existing market continues to have effect in relation to that market as if it had been approved under section 331 or, as the case requires, been notified under section 334.

4. Section 321, so far as applicable and with any necessary modifications, applies to each existing market, and the FMA must, as soon as practicable after the commencement of this subclause, set out, for each existing market, the matters required to be included by subsection (2) of that section and, in doing so, must—

5. treat the commencement of this subclause as the date on which the deemed licence was issued; and
6. formulate, in consultation with the existing exchange, the conditions of the deemed licence, being conditions of the kind described in section 318(1)(a) to (d) (and, for that purpose, the references to the Minister in section 318(1)(d) must be treated as being references to the FMA); and
7. determine whether the deemed licence is deemed to have been issued under section 316 or 317.

8. Any matter stated under section 321(2), as applied by subclause (4), is deemed to be incorporated into the deemed licence.

9. Nothing in this clause prevents—

10. the Minister from exercising a power under this Act—
    1. to vary, revoke, add to, or substitute the conditions of a deemed licence; or
    2. to suspend or cancel a deemed licence; or
11. the exercise, in respect of a deemed licence, of any other power that may, under this Act, be exercised in respect of a financial product market licence.

12. On an application to the Minister by an unlicensed market operator, the Minister may, during the transitional period, issue a financial product market licence to the existing unlicensed market operator and, after the transitional period, that licence has effect as if it had been issued under section 316 or, as the case requires, section 317.

13. During the transitional period, the Minister may approve any proposed market rules for the market operated by an existing unlicensed market operator and, after the transitional period, that approval has effect as if it had been given by the FMA under section 331.

43Previous disclosure under former enactment has effect under this Act

1. A disclosure of a substantial holding under subpart 3 of Part 2 of the Securities Markets Act 1988 must be treated as a disclosure under subpart 5 of Part 5 of this Act for the purposes of section 277 and other provisions of that Part.

44Corporate trustees and nominee companies that opt in to substantial holding exemption

1. If, before the commencement of this clause, a person has opted in to an exemption under section 31 of the Securities Markets Act 1988 (and has not withdrawn the notice to opt in), the person must be treated as having opted in to the exemption in section 285.

45Authorised dealers treated as holding market services licence

1. Every person who, immediately before the commencement of this clause, is authorised or approved to carry on the business of dealing in futures contracts under section 38 of the Securities Markets Act 1988 must be treated as holding, on and from the commencement of this clause, a licence issued under subpart 2 of Part 6 of this Act.

2. Subclause (1) does not apply if the person is not required to hold a licence under Part 6 of this Act.

3. The licence under subclause (1) must be treated as—

4. covering the same service that is authorised or approved under section 38 of the Securities Markets Act 1988 (and that service must be treated as a market service for the purposes of this Act):
5. subject to the conditions, limitations, or restrictions that, immediately before the commencement of this clause, were imposed by or under the Securities Markets Act 1988 on the authorisation or approval (and those conditions, limitations, or restrictions must be treated as the conditions of the licence for the purposes of this Act):
6. in the case of a registered bank, covering the service of acting as a derivatives issuer for all derivatives:
7. expiring on the earlier of—
   1. the date that the licence is cancelled under Part 6 of this Act; and
   2. the date that is 2 years after the commencement of this clause.

8. Subclause (3)(a) and (b) do not limit subclause (3)(c).

46FMA may exercise powers in respect of licences

1. Nothing in clause 45 prevents the FMA from exercising—

2. a power under Part 6 of this Act to vary, revoke, add to, or substitute any of the conditions of a licence referred to in that clause; or
3. any other powers under this Act in respect of the licence.

4. A licence referred to in clause 45 may also be subject to the conditions prescribed by the regulations.

47Approval of electronic transfer systems continues

1. An Order in Council made under section 7 of the Securities Transfer Act 1991 that is in force immediately before the repeal of that Act continues in force as if it had been made under section 376 (and may be amended or revoked as if it had been made under that section).

48References to banning orders under this Act include references to banning orders under former enactments

1. This clause applies to a provision of any enactment that refers to a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under this Act (or any similar reference).

2. The provision must be treated as including a reference to a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Securities Act 1978, the Securities Markets Act 1988, or the Financial Advisers Act 2008.

   Example

   Section 151(2)(ea) of the Companies Act 1993 specifies that a person is disqualified from being a director of a company if the person is prohibited from being a director or promoter under this Act.

   If a person has been so prohibited under the Securities Act 1978, the Securities Markets Act 1988, or the Financial Advisers Act 2008, the person will be disqualified under section 151(2)(ea) of the Companies Act 1993.

49References to failing to comply with this Act include references to failing to comply with former enactments for purposes of banning orders

1. This clause applies to a provision of any enactment that—

2. gives a court or a Registrar the power to make an order prohibiting a person from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body (or any order to similar effect); and
3. refers to a failure or persistent failure to comply with this Act as a ground for making the order.

4. The reference to a failure or persistent failure to comply with this Act must be treated as including a reference to a failure or persistent failure to comply with the Securities Act 1978, the Securities Markets Act 1988, or the Financial Advisers Act 2008.

   Example

   Section 383 of the Companies Act 1993 refers to persistently failing to comply with this Act as a ground for disqualifying a director.

   This ground must be treated as including a persistent failure to comply with the Securities Act 1978, the Securities Markets Act 1988, or the Financial Advisers Act 2008.

50Issuers continue to be issuers under Financial Reporting Act 1993 (Repealed)

51Section 10A of Auditor Regulation Act 2011 also applies to exemptions granted under Securities Act 1978

1. Section 10A of the Auditor Regulation Act 2011 (which provides that licence and registration requirements of that Act do not apply if an FMA exemption applies) also applies in relation to exemptions granted by the FMA under the Securities Act 1978 as if references to the Financial Markets Conduct Act 2013 were references to that Act.

52Transitional provision for offences and contravention under repealed, revoked, or amended enactments

1. This section applies to an offence committed under, or a contravention of, any of the enactments repealed or revoked by section 4 or 5 of the Financial Markets (Repeals and Amendments) Act 2013, or amended by the Financial Markets (Repeals and Amendments) Act 2013, before the commencement of the provision that repealed, revoked, or amended that enactment.

2. The enactments repealed or revoked by section 4 or 5 of the Financial Markets (Repeals and Amendments) Act 2013, or amended by the Financial Markets (Repeals and Amendments) Act 2013, continue to have effect as if they had not been repealed, revoked, or amended for the purpose of—

3. investigating an offence or a contravention to which this section applies:
4. commencing or completing proceedings for an offence or a contravention to which this section applies:
5. imposing a penalty or other remedy, or making an order, in relation to an offence or a contravention to which this section applies.

53Former law continues for contributory mortgages

1. This clause applies in relation to an interest in a contributory mortgage that was offered to the public for subscription by a contributory mortgage broker under the Securities Act 1978.

2. However, this clause does not apply in relation to an interest in a contributory mortgage if, before the commencement of this clause, the interest was cancelled, redeemed, or forfeited, or all of the obligations owing under the interest had been discharged.

3. To the extent that the following enactments would otherwise apply to an interest to which this clause applies, those enactments continue to apply as if this Act had not been enacted:

4. the Securities Act 1978:
5. the Securities Act (Contributory Mortgage) Regulations 1988:
6. an exemption granted under the Securities Act 1978 from any of the provisions of those regulations that are in force immediately before the commencement of this clause.

7. For the purposes of an interest to which this clause applies, the Governor-General may, by Order in Council, make regulations under section 70(1)(h) of the Securities Act 1978 (as if that Act continued in force) for the purpose of replacing any regulations made under that paragraph (and those regulations that are replaced then cease to apply under subclause (3)).

8. Regulations for the purposes of subclause (4) are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

54Appointments as default KiwiSaver scheme providers

1. If, immediately before the commencement of this clause, an instrument of appointment is in effect under section 177 of the KiwiSaver Act 2006, the instrument continues in effect as if it had been made under section 132 of that Act (and, accordingly, an appointment under the instrument continues subject to the terms and conditions of the appointment).

2. If a default KiwiSaver scheme that is the subject of an instrument of appointment referred to in subclause (1) has not yet been reregistered under clause 22(1)(a), the grounds for revocation of the instrument of appointment under section 137(2) of the KiwiSaver Act 2006 include the grounds in section 184(2) of the KiwiSaver Act 2006 (as in force on the date on which this Act receives the Royal assent).

55Persons who participate in offer under Securities Act 1978 continue to be financial service providers

1. The definition of financial service in section 5 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 must be treated as including the following services:

2. participating in an offer of securities to the public under the Securities Act 1978 in either of the following capacities (within the meaning of those terms under section 2(1) of that Act):
   1. as an issuer of the securities:
   2. as a promoter:
3. acting in any of the following capacities (within the meaning of those terms under section 2(1) of the Securities Act 1978) in respect of securities offered to the public under that Act:
   1. as a trustee:
   2. as a statutory supervisor:
   3. as a unit trustee:
   4. as a superannuation trustee:
   5. as a manager.

4. The service referred to in—

5. subclause (1)(a) must be treated as being a service referred to in section 5(1)(i) of the Financial Service Providers (Registration and Dispute Resolution) Act 2008:
6. subclause (1)(b) must be treated as being a service referred to in section 5(1)(ia) of the Financial Service Providers (Registration and Dispute Resolution) Act 2008.

7. The references in subclause (1)(a) and (b) to an offer to the public under the Securities Act 1978 include an offer to which the Securities Act 1978 applies in accordance with Part 1 of this schedule.

56Sale offers under clauses 31 and 34 of Schedule 1

1. Clause 31(1)(c) and (2)(d) of Schedule 1 must be treated as including a reference to an issue or a sale to the public in New Zealand under the Securities Act 1978 or to the public outside New Zealand under an application regime under Part 5 of that Act.

2. Clause 34(1)(d) of Schedule 1 must be treated as including a reference to an offer to the public in New Zealand under the Securities Act 1978.

57Transitional disclosure exclusion

1. An offer of financial products does not require disclosure under Part 3 of this Act if the offer—

2. is made before the relevant prescribed date; and
3. is of a kind that, had it been made under the Securities Act 1978,—
   1. nothing in Part 2 of the Securities Act 1978 (except sections 38B and 58) would have applied in respect of the financial products offered as a result of section 5(2CB) or (2CBA) of that Act; or
   2. the offer would not have been an offer of securities to the public as a result of section 3(2)(a)(i) to (iii) of that Act.

4. For the purposes of subclause (1)(a), different dates may be prescribed in relation to different kinds of offers or other circumstances.

5. Subclause (1) must be treated as being an exclusion under Part 1 of Schedule 1.

58Exclusions for employee share purchase schemes and small offers can take into account offers under former law

1. The reference to a regulated offer in clauses 8(3)(c) and 14(1)(c) of Schedule 1 (which require issues or sales that result from certain offers to be disregarded in making calculations) must be treated as including a reference to an offer of securities to the public in New Zealand that is made under the Securities Act 1978.

59Additional Securities Act 1978 exemption

1. Section 5(1) of the Securities Act 1978 must be treated as including an exemption to the effect that nothing in Part 2 of the Securities Act 1978 applies in respect of a financial product if the offer of the financial product would not require disclosure under Part 3 of this Act (if that Part were in force) as a result of an exclusion in any 1 or more of the clauses of Schedule 1 of this Act that are prescribed for the purposes of this subclause.

2. If a person makes an offer in reliance upon subclause (1), clauses 26 to 28 of Schedule 1 apply to the person and the offer with all necessary modifications as if it were an offer made in reliance upon any of the clauses of Schedule 1 referred to in subclause (1) (and, accordingly, a contravention of clauses 26 to 28 gives rise to civil liability under Part 8 of this Act).

3. Conditions, requirements, and other matters may be prescribed under section 543(1)(c) that apply to the exemption referred to in subclause (1) regardless of whether or not those conditions, requirements, or other matters apply to any exclusion in Schedule 1 of this Act.

4. Regulations may be made under section 70AAA of the Securities Act 1978 in respect of the exemption in subclause (1).

5. Subclause (1) ceases to apply upon the repeal of the Securities Act 1978 and may not, after it ceases to apply, be relied upon in making an offer under Part 1 of this schedule.

60FMA may make order prohibiting recognition regime offer on basis of contravention of former regulations

1. The reference to regulations in section 471(1)(a) must be treated as including a reference to regulations made under section 74 of the Securities Act 1978.

61FMA may declare failure to meet preconditions of recognition regime under Securities Act 1978 to be non-material

1. The references to a precondition in section 578 must be treated as including references to a precondition referred to in section 75(1)(d) of the Securities Act 1978.

2. The reference to regulations in section 578(2) must be treated as including a reference to regulations made under section 74 of the Securities Act 1978.

62Amendment to section 46 of Trustee Act 1956 does not affect existing proceedings

1. Nothing in the amendment made to section 46 of the Trustee Act 1956 by section 150 and the Schedule of the Financial Markets (Repeals and Amendments) Act 2013 affects any proceeding commenced before that amendment comes into force, and any such proceeding must be decided as if the amendment had not been made.

63Financial reporting for registered schemes and funds

1. Sections 461A and 461H of this Act, as amended by sections 80 and 81 of the Regulatory Systems (Commercial Matters) Amendment Act 2017, apply to a registered scheme (and any separate fund) in relation to the following accounting periods of the scheme:

2. an accounting period that commenced before, but ends on or after, the commencement of this clause:
3. accounting periods that commence on or after the commencement of this clause.

64Definition

1. In clauses 65 to 70, Regulations means the Financial Markets Conduct Regulations 2014.

65Certification as to eligible investors under Financial Advisers Act 2008

1. This clause applies to a certification that is referred to in clause 3(4) of Schedule 1 of the Regulations and that is in effect immediately before that subclause is revoked.

2. The certification remains in effect after the revocation (subject to any revocation under section 5F of the Financial Advisers Act 2008).

66Service disclosure statement and investment proposal for existing DIMS

1. This clause applies in relation to a DIMS provided by a person (A) to an investor (B) if, immediately before the commencement of this clause, clause 6 of Schedule 1 of the Regulations (clause 6) applies in relation to the DIMS.

2. The following apply after the revocation of clause 6:

3. A is not required to provide an SDS under sections 423 and 424 to B if A, under clause 6, was not required to do so before the revocation:
4. A is not required to provide an investment proposal under regulation 206 of the Regulations to B if A, under clause 6, was not required to do so before the revocation:
5. regulation 226(1)(a) of the Regulations does not apply to a client agreement if, under clause 6, that paragraph did not apply to the client agreement before the revocation:
6. section 437(2) to (4) does not apply to an investment authority if, under clause 6, those subsections did not apply to the investment authority before the revocation.

7. In this clause,—

   investment proposal has the same meaning as in regulation 206(2) of the Regulations

   SDS has the same meaning as in the Regulations.

67Existing licences continue and cover supervision

1. If, immediately before the revocation of clause 8 of Schedule 1 of the Regulations, that clause applies to a licence,—

2. the licence continues in effect on and after that revocation; and
3. if the licence is treated as covering certain matters under clause 8(2) of that schedule, the licence must be treated as continuing to cover those matters.

4. This clause applies despite clause 8(4) of Schedule 1 of the Regulations, but nothing in this clause affects the duration of the licence under section 12 of the Financial Markets Supervisors Act 2011 or prevents the FMA from exercising any power in relation to the licence.

68Extension of licences to cover substantially the same matters under new law

1. If, immediately before the revocation of clause 9 of Schedule 1 of the Regulations, that clause applies to a licence, the following apply on and after that revocation:

2. if, immediately before that revocation, the licence is subject to a variation under clause 9(3) of that schedule, the licence continues to be subject to the variation; and
3. if the licence continues to be subject to conditions, limitations, or restrictions under clause 9(4) of that schedule, the licence must be treated as continuing to be subject to the conditions, limitations, or restrictions.

4. This clause applies despite clause 9(7) of Schedule 1 of the Regulations, but nothing in this clause prevents the FMA from exercising any power in relation to the licence.

69Governance requirements for PIE call fund units, PIE term fund units, and bank notice products that are specified units

1. This clause applies to a security if, immediately before the commencement of this clause, clause 19 of Schedule 1 of the Regulations applies to the security.

2. Clauses 20(1), 21, 22, and 30 of this schedule do not apply to the security if clause 28 of Schedule 8 of the Regulations applies in respect of the managed investment scheme to which the security relates.

70Certain superannuation schemes that elect to be treated as registered

1. If, immediately before the revocation of clause 30A of Schedule 1 of the Regulations, that clause applies to a scheme and to the interests in the scheme, that clause continues to apply to the scheme and the interests on and after that revocation.

91Interpretation in this Part

1. In this Part, climate standard has the same meaning as in section 5(1) of the Financial Reporting Act 2013.

92Definitions of large listed issuer, large, and large manager may take into account accounting periods that commence before commencement of clause

1. In sections 461P(1), 461Q, and 461S, a reference to preceding accounting periods may include an accounting period regardless of whether the accounting period commenced before, on, or after the commencement of this clause.

93Climate-related disclosures for climate reporting entities under section 461O(1)

1. The following provisions of this Act apply to a climate reporting entity under section 461O(1) in respect of accounting periods of the entity that commence on or after the date on which the External Reporting Board issues the first climate standard that applies to the entity:

2. subpart 2 of Part 7A (which relates to CRD records):
3. subpart 3 of Part 7A (which relates to preparation of climate statements):
4. subpart 5 of Part 7A (which relates to lodgement of climate statements).

5. The provisions listed in subclause (1) do not apply to a climate reporting entity under section 461O(1) in respect of accounting periods of the entity that commence before the date on which the External Reporting Board issues the first climate standard that applies to the entity.

94Climate-related disclosures relating to registered schemes

1. The following provisions of this Act apply to a climate reporting entity under section 461O(2) in respect of accounting periods of a registered scheme that commence on or after the date on which the External Reporting Board issues the first climate standard that applies to the scheme:

2. subpart 2 of Part 7A (which relates to CRD records):
3. subpart 3 of Part 7A (which relates to preparation of climate statements):
4. subpart 5 of Part 7A (which relates to lodgement of climate statements).

5. The provisions listed in subclause (1) do not apply to a climate reporting entity under section 461O(2) in respect of accounting periods of a registered scheme that commence before the date on which the External Reporting Board issues the first climate standard that applies to the scheme.

95Dealing with applications to act as financial institution from existing banks, insurers, and NBDTs

1. This clause applies to a person (A) if,—

2. immediately before the commencement of this clause, A is a registered bank, a licensed insurer, or a licensed NBDT; and
3. an application is made for a licence to cover A’s service of acting as a financial institution (whether under an existing or a new licence and whether under section 395 or, by way of an application to vary the conditions of a licence, under section 404 of this Act).

4. To the extent that the application relates to A, the FMA must not decline the application unless the Reserve Bank has given its consent.

5. The Reserve Bank may withhold its consent only if the Reserve Bank is satisfied,—

6. in a case where A is a registered bank or a licensed NBDT, that withholding the consent is necessary for maintaining a sound and efficient financial system:
7. in a case where A is a licensed insurer, that withholding the consent is necessary for maintaining a sound and efficient insurance sector.

8. If the FMA has asked for the Reserve Bank’s consent but the Reserve Bank refuses to give its consent, the FMA must accept the application (to the extent that it relates to A) even if it does not consider that 1 or more of the requirements referred to in section 396 or 400 are satisfied.

9. The FMA may exercise a power under section 414(2) in respect of the requirements referred to in section 396 or 400 (without having to be satisfied under section 414(1)).

10. Subclause (5) ceases to apply in relation to a person when the FMA first becomes satisfied that those requirements referred to in section 396 or 400 are satisfied in relation to the person.

96Regulations may provide that licensing requirement does not apply until particular date

1. The Governor-General may, by Order in Council, on the recommendation of the Minister, make regulations for the purpose set out in subclause (2) (and those regulations have effect despite the commencement of section 8 of the Financial Markets (Conduct of Institutions) Amendment Act 2022).

2. The purpose is to provide that the requirement to hold, or be authorised under, a licence to provide the service of acting as a financial institution does not apply to a class of persons specified in the regulations until on or after a date specified in those regulations.

3. A date specified in those regulations must be on or before the fifth anniversary of the date on which the Financial Markets (Conduct of Institutions) Amendment Act 2022 receives the Royal assent.

4. The Minister must consult the FMA before making a recommendation under this clause.

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

97Applications for financial institution licence may be made before commencement

1. A person may apply for a market services licence to cover the service of acting as a financial institution—

2. before the commencement of section 8 of the Financial Markets (Conduct of Institutions) Amendment Act 2022; and
3. if regulations under clause 96 apply, before the date referred to in clause 96(2).

4. For the purposes of dealing with the application, any provisions of the Financial Markets (Conduct of Institutions) Amendment Act 2022 that are relevant to the matter and that are not yet in force must be treated as if they were in force.

5. The FMA may refuse to consider the application if it is made—

6. before a date specified by the FMA; or
7. before an event specified by the FMA has occurred; or
8. before circumstances specified by the FMA exist.

9. Subclause (3) ceases to apply to an application made after the later of—

10. the commencement of section 8 of the Financial Markets (Conduct of Institutions) Amendment Act 2022; and
11. the date referred to in clause 96(2) (if the regulations made under that clause apply in relation to the applicant).

12. This clause does not limit section 395(1A).

98Incentives regulations may apply to existing agreements

1. Regulations made under section 546(1)(og) may provide that they apply to 1 or more classes of incentives offered, given, or otherwise payable on or after the commencement of those regulations.

2. Subclause (1) may apply even if an incentive is offered, given, or otherwise payable under an agreement entered into before either or both of the following:

3. the commencement of those regulations:
4. the enactment of the Financial Markets (Conduct of Institutions) Amendment Act 2022.

5. However, nothing in those regulations applies to—

6. any incentive that is given or otherwise paid or payable before the commencement of those regulations; or
7. any incentive that a person has become entitled to before that commencement (even if it is given or otherwise payable after that commencement).

8. If the regulations apply to an agreement referred to in subclause (2), compliance with those regulations does not—

9. place any party to the agreement or any other person in breach of the agreement, or make any of them liable for a civil wrong; or
10. entitle any person to terminate or cancel an agreement, or to accelerate the performance of an obligation, or to impose a penalty or an increased charge, unless the regulations provide otherwise.

99Interpretation in this Part

1. In this Part,—

   commencement date means the commencement date of section 25 of the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021

   new, in relation to a section of this Act, means the section as replaced or amended by a provision of Part 2 of the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act 2021

   Part 7A assurance engagement obligations means—

   1. new section 461ZH (which relates to assurance engagements required for parts of climate statements relating to greenhouse gas emissions); and
   2. new section 461ZI (which relates to lodgement); and
   3. except in clause 96(2), new section 461ZJ (which relates to annual reports).

100Application of Part 7A assurance engagement obligations to accounting periods

1. The Part 7A assurance engagement obligations apply to a climate reporting entity under section 461O(1) in relation to the following accounting periods of the climate reporting entity:

2. an accounting period that commenced before, but ends on or after, the commencement date:
3. accounting periods that commence on or after the commencement date.

4. The Part 7A assurance engagement obligations apply to a manager of a registered scheme that is a climate reporting entity in respect of the scheme in relation to the following accounting periods of the scheme:

5. an accounting period that commenced before, but ends on or after, the commencement date:
6. accounting periods that commence on or after the commencement date.

101Exemptions relating to transition from Securities Act 1978 may continue in force indefinitely

1. Section 558 (exemption in force for not more than 5 years) does not apply to the following:

2. the Financial Markets Conduct (Communal Facilities in Real Property Developments) Exemption Notice 2021:
3. the Financial Markets Conduct (Employee Share Purchase Scheme Shares Offered under Securities Act 1978) Exemption Notice 2021:
4. the Financial Markets Conduct (Equine Bloodstock) Exemption Notice 2021 (subject to subclause (2)):
5. the Financial Markets Conduct (Irrigation Companies) Exemption Notice 2022 (subject to subclause (2)):
6. the Financial Markets Conduct (Multiple-participant Schemes—Participation Agreements) Exemption Notice 2022 (subject to subclause (2)):
7. the Financial Markets Conduct (Securities Offered under Securities Act 1978 Exemptions Recognising Overseas Regimes) Exemption Notice 2021:
8. the Financial Markets Conduct (Small Co-operatives) Exemption Notice 2022 (subject to subclause (2)).

9. However, section 558 continues to apply to the following:

10. clauses 6 to 8 of the Financial Markets Conduct (Equine Bloodstock) Exemption Notice 2021:
11. clauses 4, 8 to 18, and 20 to 24 and Schedules 1 to 3 of the Financial Markets Conduct (Irrigation Companies) Exemption Notice 2022 and the cross-heading above clause 8:
12. clauses 5 to 8 of the Financial Markets Conduct (Multiple-participant Schemes—Participation Agreements) Exemption Notice 2022:
13. clauses 4, 7 to 9, and 11 to 15 and Schedules 1 and 2 of the Financial Markets Conduct (Small Co-operatives) Exemption Notice 2022.

14. This clause does not prevent the FMA from exercising a power to amend or revoke a notice to which this clause applies.

102References to qualified auditor treated as references to qualified FMC auditor

1. This clause applies to a reference to a qualified auditor in an existing exemption if, immediately before the commencement of this clause, the reference has the same meaning as in this Act.

2. The reference must be treated as being a reference to a qualified FMC auditor.

3. In this clause, existing exemption means an exemption under subpart 2 of Part 9 as in force immediately before the commencement of this clause.