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Corporate Reporter Issue No. 63

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Corporate Reporter Issue No. 63 CORPORATE REPORTER 26 February 2020 ITEMS IN THIS ISSUE INCLUDE: • Submissions called for on new conduct bill for financial institutions and the Financial Market Infrastructures Bill • New round of Cabinet decisions on the reform of the Reserve Bank Act • Government calls for submissions on amendments to the Fair Trading Act • Commerce Commission consults on a new CCCFA certification requirement • The latest developments in the climate change sector • The latest media releases from the New Zealand Commerce Commission and the Australian Competition and ConsumerCommission WELCOME to issue No.63 of Corporate Reporter, Bell Gully’s regular round-up of corporate and general commercial matters, designed to keep you informed on regulatory developments, legislation and cases of interest. For more information on any of the cases, articles and features in Corporate Reporter, please email [email protected] or call on +64 9 916 8849 CONTENTS CORPORATE REPORTER CONTENTS PAGE Capital Markets 3 Submissions called for on new conduct bill for financial institutions New round of Cabinet decisions on the reform of the Reserve Bank Act Submissions called for on the Financial Market Infrastructures Bill The Reserve Bank launches streamlined external whistleblowing policy Consultation on proposed GST exemption for cryptocurrencies Changes ahead for funding of the FMA Report on review of MIS custody arrangements FMA information sheet published on “green bonds” for same class exclusion offers Review of New Zealand’s retirement income policies The Reserve Bank shares data in the life insurance sector Mergers & Acquisitions 8 The Big Picture: Overseas Investment – new wave of reforms set the tone for the next decade Overseas Investment Office releases data for 2019 Takeovers Panel updates guidance for unlisted code companies Commercial 8 Climate change – what lies ahead in 2020 End of consultation period for key NZ ETS and renewable energy regulations this month New AML/CFT sector risk assessments released Cabinet agrees to a National AML/CFT Strategy Corporate Law 10 Changes to PPSR financing statement details required for registered overseas entities Competition and Consumer Law 10 Submissions called for on amendment bill for the Fair Trading Act NZCC consults on certification criteria for a new CCCFA requirement The latest media releases from the New Zealand Commerce Commission The latest media releases from the Australian Competition and Consumer Commission Disclaimer: This publication is necessarily brief and general in nature. Any case summary may only discuss some, not all, aspects of a case. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Links to third party websites in this publication are not monitored or maintained by Bell Gully. We do not endorse these websites and are not responsible for their content. We accept no responsibility for any damage or loss you may suffer arising out of access to these websites. Please read all copyright and legal notices on each website prior to downloading or printing items to ensure that such actions are permitted under the third party website's copyright notices, legal notices and/or terms of use. CORPORATE REPORTER Submissions called for on new conduct bill for financial institutions The Finance and Expenditure Committee has called for submissions on the Financial Markets (Conduct of Institutions) Amendment Bill, which had its first reading shortly after Parliament resumed earlier this month. Submissions close on 26 March 2020. This Bill creates a new regulatory regime for the general conduct of banks, insurers and non-bank deposit takers (NBDTs), and certain intermediaries, in respect of services and products provided to consumers. We have previously discussed the changes that had been signalled here. The consultation which preceded the introduction of the Bill last year received 85 submissions from interested parties, and we would expect a similar level of participation in the select committee process given the importance of the Bill to the industry. Key measures The Bill is a response to the Financial Markets Authority (FMA) and the Reserve Bank's joint conduct and culture reviews into the sales and conduct practices within New Zealand banks and insurers following revelations emerging out of Australia's Hayne Royal Commission. These reviews identified that certain institutions, particularly banks and life insurers, lack focus on good outcomes for customers and have ineffective systems and controls to identify, manage, and remedy conduct issues. The measures in the Bill to address these issues include: • General conduct licence - a requirement for banks, insurers and NBDTs (financial institutions) to be licensed by the FMA under Part 6 of the Financial Markets Conduct Act 2013 (FMC Act) in respect of their general conduct. Applications for conduct licences will be able to be made before the regime commences. • Compliance with a fair conduct principle – The framework for the new regime is based on a requirement for financial institutions and certain “intermediaries” to comply with a fair conduct principle to treat consumers fairly, including by paying due regard to their interests. The principle applies to a broad range of financial services and associated products (in a range of circumstances, from early design of products and services to post-sale dealings). This includes consumer contracts of insurance and consumer credit contracts, as well as most other financial services referred to in the Financial Service Providers (Registration and Dispute Resolution) Act 2008 when those services are retail services. “Intermediaries” are people who are involved in providing the services or products (but a person is covered only if they are paid a commission or other benefit by the financial institution or another intermediary). • Fair conduct programme - a requirement for financial institutions to establish, implement, and maintain an effective fair conduct programme. The programme is targeted at ensuring compliance with the fair conduct principle through the implementation of policies, processes, systems, and controls for every relevant part of a financial institution’s business. The Bill sets out the minimum requirements for the conduct programme, which includes providing for the programmes to be made available to the public, with more specific requirements to be provided through regulations. Financial institutions will be required to take all reasonable steps to ensure that intermediaries also comply with their conduct programmes (so that institutions provide some oversight to ensuring that any intermediaries distributing their products or services are doing so responsibly), except to the extent that an intermediary is a financial institution in its own right, or a financial advice provider providing regulated financial advice. • Regulation of sale incentives - a requirement for financial institutions and intermediaries to comply with regulations that regulate incentives. These regulations will be able to prohibit incentives that are based on volume or value sales targets (such as, overseas trips, bonuses for selling a certain number of financial products, leader boards, and performance management based on volume of sales). Protection for whistleblowing The Bill includes provisions to protect employees and agents of financial institutions and intermediaries who report a contravention of a provision of the FMC Act or of the fair conduct principle to the FMA. 3 CORPORATE REPORTER Enforcement and penalties The FMA has been given powers to monitor and enforce licensing obligations on an ongoing basis, including actions such as censure and the imposition of action plans. The Government has acknowledged that this will likely involve an increase in funding for the FMA. Strong civil liability and pecuniary penalties will apply for contravention of the new licensing regime and any associated obligations, through the existing enforcement tools and maximum penalties available under the FMC Act. Transitional arrangements Regulations will allow licensing requirements to be applied to different classes of entities at different times - up to four years after the date on which the Bill receives the Royal assent. The Government has proposed that banks and insurers would be licensed first, with NBDTs following at a later date. Other transitional arrangements in the Bill include: • providing for how to deal with applications to act as a financial institution from existing banks, insurers, and NBDTs. In particular, a licence cannot be declined without the Reserve Bank’s consent, and • allowing new incentives regulations to apply to agreements entered into before the commencement of the regulations (but not to incentives that have already been earned before that commencement). Next steps The select committee has until 23 June 2020 to report back on the Bill, which is only a few sitting days before the House adjourns for the general election on 6 August. The Government has yet to signal whether it intends to pass the Bill in that time period, although the Bill has been given priority on the 2020 legislation programme which provides for it to be enacted by the end of 2020. Regulations will also be necessary to support the operation of the Bill. This will mean that even if the Bill is passed before the House adjourns, there will be an additional period of time required for the regulations to be developed, following further policy and consultation
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