In this Act, a client,—

A retail client, in respect of a financial advice service or a client money or property service, is a client of a provider of that service who is not a wholesale client.

A person is a wholesale client, in relation to a financial advice service or a client money or property service (unless the person has opted out from being a wholesale client under clause 5) if—

The relevant time, for the purposes of applying Schedule 1 under subclause (1), is the time immediately before the service is supplied to the person.

If subclause (1) applies to a person (C), it applies equally to any entity controlled by C to the same extent as it applies to C (where controlled has a meaning that corresponds to the definition of control in clause 48 of Schedule 1).

A person may opt out of being a wholesale client, in relation to a financial advice provider or CMPS provider, by giving the financial advice provider or CMPS provider a signed notification to that effect.

A notification may be specific to a particular service, or class of services, or may be general for all services provided by the financial advice provider or CMPS provider to whom it is given.

A person may vary or revoke a notification in the same way as the notification may be given.

A notification (or variation or revocation of a notification) under this clause is effective only in relation to services provided after it is given.

This clause does not apply if a person is a wholesale client by reason of being an eligible investor under clause 41 of Schedule 1.

In this clause and clause 6, CMPS provider means a provider of a client money or property service.

A notification under clause 5 is sufficiently given to a financial advice provider or CMPS provider if it is—

The notification is treated as received by the person no later than 7 days after it is posted or 2 days after it is emailed, unless the person to whom it is posted or sent proves that it was not received (otherwise than through fault on the person's part).

A person does not give financial advice merely by doing 1 or more of the following:

Financial advice is not regulated financial advice if it is given by an incorporated law firm (as defined in section 6 of the Lawyers and Conveyancers Act 2006)—

Financial advice is not regulated financial advice if the person giving the advice—

Financial advice is not regulated financial advice if—

Financial advice is not regulated financial advice if it is given by a director of an entity in the person’s capacity as a director.

Financial advice is not regulated financial advice if—

In this clause, something is an incidental part of a business if it is carried on to facilitate the carrying out of the business or is ancillary to the business.

Financial advice is not regulated financial advice if—

A lender is taken to have complied with subclause (1)(b) if the lender gives the borrower a statement in the prescribed manner.

In this clause,—

borrower has the same meaning as in section 9B(1) of the CCCF Act

CCCF Act means the Credit Contracts and Consumer Finance Act 2003

lender has the same meaning as in section 9B(1) of the CCCF Act

lender responsibilities means the lender responsibilities set out in section 9C(3)(a) to (e) and 9C(5) of the CCCF Act

relevant insurance contract has the same meaning as in section 9B(1) of the CCCF Act.

Financial advice is not regulated financial advice if it is given in the ordinary course of the business of one of the following:

Financial advice is not regulated financial advice if the person giving the advice—

Financial advice is not regulated financial advice if it is given in the ordinary course of the business of a trustee corporation providing—

In this clause, trustee corporation means one of the following:

Financial advice is not regulated financial advice if it is given—

In this clause, non-financial not-for-profit organisation means an organisation—

Financial advice is not regulated financial advice if it is given—

Financial advice is not regulated financial advice if it is given—

Financial advice is not regulated financial advice if—

Financial advice is not regulated financial advice if it is given—

Financial advice given to a person (A) is not regulated financial advice if—

Financial advice is not regulated financial advice if it is given—

Financial advice is not regulated financial advice if it is given in prescribed circumstances.

If an exclusion under clauses 8 to 17 applies to a person (A), it applies equally to any controlling owner, director, employee, agent, or other person acting in the course of, and for the purposes of, A’s business to the same extent as it applies to A.

A client money or property service is not a regulated client money or property service if the person giving the service—

A client money or property service is not a regulated client money or property service if it is given by an incorporated law firm (as defined in section 6 of the Lawyers and Conveyancers Act 2006)—

A client money or property service is not a regulated client money or property service if it is given in the ordinary course of the business of one of the following:

A client money or property service is not a regulated client money or property service if the person giving the service—

A client money or property service is not a regulated client money or property service if—

In subclause (1)(a),—

designated FMI and operator have the meanings given in section 5 of the Financial Market Infrastructures Act 2021

rules is to be read in accordance with section 35 of that Act.

A client money or property service is not a regulated client money or property service if it is given in prescribed circumstances.

If an exemption under clauses 19 to 22 applies to a person (A), it applies equally to any controlling owner, director, employee, agent, or other person acting in the course of, and for the purposes of, A’s business to the same extent as it applies to A.

The code committee is established.

The functions of the code committee are—

See clause 80 of Schedule 4 (which provides for the code to be prepared before the commencement of clauses 32 to 39).

The Minister may at any time—

The appointment of a member of the code committee must be for a specified period, but a member may be discharged under subclause (1)(b) before his or her period of appointment has expired.

The code committee must have not less than 7 members and not more than 11 members, and the Minister must ensure that the number of current members does not fall below 7.

A member of the code committee may resign by notice in writing to the Minister.

The Minister must appoint as members of the code committee—

The Minister must appoint one of the members of the code committee as the chairperson of the code committee.

The Minister may, at any time and entirely at his or her discretion, discharge the chairperson from that office (whether or not the Minister also discharges the chairperson as a member of the code committee).

The chairperson may, without resigning as a member of the code committee, resign from that office by notice in writing to the Minister.

Meetings of the code committee must be held at the times and places as the code committee or the chairperson from time to time decides.

The quorum for a meeting of the code committee is 5 members.

Every question before the code committee must be determined by a majority of the votes of the members present or otherwise.

The chairperson of the code committee has a deliberative vote and, in the case of an equality of votes, a casting vote.

The code committee may regulate its own procedure.

Subclause (5) applies except as provided in this clause and in any regulations.

Clause 15 of Schedule 5 of the Crown Entities Act 2004 applies as if the code committee were a committee appointed under clause 14 of that schedule and with all other necessary modifications.

The FMA must fund the code committee.

The code must provide for minimum standards of professional conduct that must be demonstrated by persons who give regulated financial advice, including minimum standards—

However, the code must not include limits on the types of financial advice that may be given by a person because the person is a nominated representative.

The code—

The code must also provide for—

Subclause (4)(b) does not prevent a person from demonstrating their competence, knowledge, or skill in a way that is not specifically set out in the code.

The code may limit or modify standards, or provide for separate standards, for the duration of 1 or more periods of transition.

The code committee must prepare a draft code.

In preparing the draft code, the code committee must—

The code committee must publish, on an Internet site maintained by or on behalf of the committee,—

After receiving the draft code prepared by the code committee, the Minister must—

The Minister must approve the draft code prepared by the code committee if the Minister is satisfied that—

A failure by the code committee to comply with its obligations under clause 33(2) or (3) does not affect the validity of the code.

This clause is subject to clause 35.

If the Minister is not satisfied as to a matter specified in clause 34(2),—

If the Minister considers that the draft code is not consistent with this Act, the Minister must, in directing the code committee to revise the draft code, state in what respects the Minister considers that the draft code is not consistent.

After receiving a revised draft code, the Minister must—

Before making any amendment to the draft code under this clause, the Minister must—

The Minister must consult the FMA before exercising a power under clauses 34 to 36.

The Minister must approve the draft code within 90 days after receiving the draft code or, if clause 35 applies, within 90 days after receiving the revised draft code.

If the Minister does not do so, the Minister is taken to have approved the code at the expiry of those 90 days.

The code may specify different commencement dates for different provisions, but no date may be before the 28th day after the date on which the code is published in accordance with subsection (2).

The approved code is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

That Act applies as if—

A change to the code may be proposed by—

The procedure for changing the code is the same as the procedure set out in clauses 32 to 39 for the preparation and approval of the draft code.

However, the code committee must, in relation to a proposed change,—

Any person may complain to the FMA about the conduct of another person (A) in A’s capacity as a financial adviser.

The FMA may initiate a complaint.

After receiving or initiating a complaint, the FMA may investigate the complaint if it is practicable to do so having regard to—

The FMA need not investigate a complaint if it is satisfied that—

When the FMA has, under clause 42, investigated a complaint about a financial adviser, it may refer the complaint to the disciplinary committee if, in the FMA's opinion, the conduct complained of amounts to a contravention of a provision of subpart 5A of Part 6 (for example, a contravention of the code).

The disciplinary committee must serve a written notice of the complaint on a financial adviser if—

The disciplinary committee's notice of complaint to the financial adviser concerned (A) must—

In this clause,—

A is the person who is the subject of the complaint

FSP Act means the Financial Service Providers (Registration and Dispute Resolution) Act 2008

Registrar means the Registrar of Financial Service Providers.

The disciplinary committee may take any of the actions referred to in subclause (3) if it is satisfied that A has contravened a provision of subpart 5A of Part 6.

The disciplinary committee may do 1 or more of the following:

Deregistration or suspension of A’s registration under the FSP Act under subclause (3) relates only to A’s registration for a financial advice service.

See sections 532A to 532C, which provide for an appeal from a decision under this clause.

No fine may be imposed under clause 46(3)(g) in relation to an act or omission that constitutes—

In any case to which clause 46(2) applies, the disciplinary committee may order that A must pay costs and expenses of, and incidental to, the investigation by the FMA and the disciplinary committee’s proceeding.

The disciplinary committee may publicly notify the action in any way that it thinks fit.

Clause 46 and this clause apply whether or not A is a financial adviser at the time of the complaint, the investigation, or the disciplinary proceeding.

The disciplinary committee must not take any of the actions specified in clause 46(3) unless it has first—

The Minister must establish a disciplinary committee.

The functions of the disciplinary committee are to—

The Minister may at any time appoint a member of the disciplinary committee.

The appointment of a member of the disciplinary committee must be for a specified period.

The Minister must appoint one of the members of the disciplinary committee as the chairperson of the disciplinary committee.

The disciplinary committee must have not less than 4 members and not more than 6 members including the chairperson, and the Minister must ensure that the number of current members does not fall below 4.

Apart from the chairperson, the Minister must appoint as members of the disciplinary committee—

A person ceases to be a member of the disciplinary committee if—

A person who ceases to be a member of the disciplinary committee is not entitled to compensation.

A member continues in office despite the expiry of his or her period of appointment until—

A member who continues in office for any period under subclause (3), unless he or she was removed from office, may act as a member during that period for the purpose of—

A member who has resigned, or whose successor is appointed or who will not be replaced (unless he or she was removed from office), may continue in office for the purpose of completing any proceedings that are partly or wholly heard.

The chairperson of the disciplinary committee may delegate any of the chairperson’s functions, duties, and powers to a member of the disciplinary committee who the chairperson is satisfied has the necessary capability, skills, and experience to perform or exercise those functions, duties, and powers.

A delegation—

A person to whom any functions, duties, or powers are delegated may perform or exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.

A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.

Meetings of the disciplinary committee must be held at the times and places as the disciplinary committee or the chairperson from time to time decides.

The quorum for a meeting of the disciplinary committee is 3 members.

Every question before the disciplinary committee must be determined by a majority of the votes of the members present at the meeting.

The chairperson of the disciplinary committee has a deliberative vote and, in the case of an equality of votes, a casting vote.

The disciplinary committee may regulate its own procedure.

Subclause (5) applies except as provided in this clause and in any regulations.

In a disciplinary proceeding, the disciplinary committee may—

A hearing before the disciplinary committee in a disciplinary proceeding is a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.

Despite anything in this Act to the contrary, the disciplinary committee may determine a disciplinary proceeding on the papers if the committee considers it appropriate.

Before doing so, the disciplinary committee must give the parties a reasonable opportunity to comment on whether the proceeding should be dealt with in that manner.

For the purposes of any matter before the disciplinary committee, the committee may, on the application of any party to a proceeding, or on the committee’s own initiative, issue a summons to any person requiring that person to attend a hearing before the disciplinary committee and to do all or any of the following:

The summons must be in writing, be signed by a relevant person, and state—

In subclause (2), relevant person means—

The disciplinary committee may require that any documents, things, or information produced under this clause be verified by oath, statutory declaration, or otherwise.

A summons may be served—

A summons must,—

A summons that is posted is treated as having been served when it would have been delivered in the ordinary course of post.

In the absence of proof to the contrary, a summons that is emailed to a person must be treated as served on the person on the second working day after the date on which it is emailed, and, in proving that the summons was emailed, it is sufficient to prove that the summons was properly addressed and sent to the email address.

A person summoned under clause 57 commits an offence if he or she, without reasonable excuse,—

A person who commits an offence under this clause is liable on conviction to a fine not exceeding $5,000.

A person must not be convicted of an offence under this clause if witnesses’ fees, allowances, and expenses to which the person is entitled under clause 60 have not been paid or tendered to him or her.

A witness appearing before the disciplinary committee under a summons is entitled to be paid witnesses’ fees, allowances, and expenses in accordance with the scales prescribed by regulations under the Criminal Procedure Act 2011.

The person requiring attendance of the witness must pay or tender to the witness the fees, allowances, and expenses at the time the summons is served or at some other reasonable time before the hearing.

Every person who does the following things has the same privileges as witnesses have in a court:

Every counsel appearing before the disciplinary committee in relation to a disciplinary matter has the same privileges and immunities as counsel in a court.

Every person commits an offence and is liable on conviction to a fine not exceeding $5,000 who—

A member of the disciplinary committee may order the exclusion from a sitting of the disciplinary committee of any person whose behaviour, in that member’s opinion, constitutes an offence against subclause (1), whether or not that person is charged with the offence.

Any constable may take the steps that are reasonably necessary to enforce the exclusion.

Clause 15 of Schedule 5 of the Crown Entities Act 2004 applies as if the disciplinary committee were a committee appointed under clause 14 of that schedule and with all other necessary modifications.

The FMA must fund the disciplinary committee.