Welcome to Issue No. 15 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.
| IN BRIEF |
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Items in this issue include: |
| Regulatory developments | Top |
Update on the implementation of the new anti-money laundering regime
Further consultation on regulations for the first phase of reform
The Ministry of Justice has issued a consultation paper on a proposed further set of regulations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act) to resolve some outstanding administrative matters arising for the first phase of the new anti-money laundering regime. These include:
- the prescription of an annual reporting form for reporting entities' risk assessment and AML/CFT programmes instead of the current Annual Reporting Regulation;
- information that must be contained in a Suspicious Transaction Report; and
- a number of minor and technical amendments which are required to clarify or address oversights in the set of regulations promulgated under the AML/CFT Act in June 2011 (including, further clarification for the exemption for non-finance businesses from obligations in respect of certain types of consumer credit).
Some further policy matters are also raised for consultation. These include:
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Expanding the simplified customer due diligence (CDD) measures to include:
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foreign publicly-listed companies that are listed on a recognised overseas stock exchange that has sufficient disclosure requirements and that are listed in a country with sufficient anti-money laundering and countering financing of terrorism systems and measures in place; and
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reporting entities that are supervised or regulated under the AML/CFT Act and that are licensed or regulated in accordance with the Insurance (Prudential Supervision) Act 2010, the Reserve Bank of New Zealand Act 1989 or the Non-bank Deposit Takers Bill.
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Regulating for CDD to be conducted where there is a suspicion of money laundering/ terrorism financing (ML/TF), regardless of exemptions or thresholds that are referred to elsewhere in the AML/CFT Act and Regulations.
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Explicitly requiring ordering institutions to obtain (but not verify) information on the beneficiaries of international wire transfers, and beneficiary institutions to carry out CDD in accordance with the AML/CFT Act (including verification) on customers that receive international wire transfers.
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Reviewing the terms of the exemption from beneficial ownership obligations for custodial account holders to address certain impracticalities, disproportionate compliance costs and commercial sensitivities.
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Making a minor clarification in the definition of stored value instrument (SVI), some adjustments to the SVI exemption and making increasing value on a SVI an occasional transaction, to better manage residual risks of ML/TF.
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A proposal to exempt entities that carry out auctions within the meaning of clause 65 of the new Consumer Law Reform Bill. This would capture auctions in which property of any kind (including goods, services, and interests in land) is offered for sale by an auctioneer on behalf of a vendor, and:
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bids for the property are placed with the auctioneer in real time; and
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the property is sold when the auctioneer indicates.
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A proposal to exempt internet auction providers that carry out internet-based auctions. This includes internet auctions that provide that any contract of sale resulting from the process is a contract directly between the winner of the bidding and the seller of the property.
Submissions on the consultation paper close on 17 August 2012. It is anticipated that final decisions on regulations will be made and communicated in October 2012 and the regulations should be in place by January 2013.
Are you ready for the commencement of the new regime?
From 30 June 2013 all reporting entities (as defined in the AML/CFT Act) will have to be compliant with the AML/CFT regime unless covered by an exemption. Reporting entities will have a range of responsibilities, including the requirement to have in place an appropriate transaction monitoring system, and will be supervised by one of the three supervisors of the AML/CFT regime: the Financial Markets Authority (FMA), the Reserve Bank of New Zealand and the Department of Internal Affairs.
FMA has drawn a provisional list of 587 businesses which have been identified as reporting entities under the new regime (falling under the supervision of the FMA) from the Financial Service Providers Register. These include issuers of securities, trustee companies, futures dealers, collective investment schemes, brokers and financial advisers. The list is available here.
Banks, life insurers and non-bank deposit takers are supervised by the Reserve Bank of New Zealand and can access information here. Casinos, money service businesses (including currency exchange and money remittance/transfer), payroll remittance, lending and other services (including non-bank non-deposit-taking lenders, debt collection and factoring), financial leasing, cash transporters, safe deposit/cash storage, and issuing and managing means of payment (including non-bank credit card providers) and any other reporting entities not supervised by the Reserve Bank of New Zealand or FMA will be supervised by the Department of Internal Affairs and can access information here.
For an overview of the new regime and more details on reporting entities click here.
The second phase of the AML/CFT reform will consider the extension of coverage of the regime to a range of designated non-financial services and professions including (but not limited to) lawyers, accountants, real estate agents, conveyancers and jewellers.
Exposure draft of statutory fund regulations for life insurers released
The Reserve Bank of New Zealand has released an exposure draft of the proposed final version of the statutory fund regulations which will amend the Insurance (Prudential Supervision) Regulations 2010 by inserting rules relating to funds that must be established by life insurers in respect of their life insurance business (see the exposure draft of the proposed Insurance (Prudential Supervision) Amendment Regulations 2012).
The rules relate to:
- the establishment of statutory funds;
- the restriction on unsecured borrowing for the purposes of the business of statutory funds under section 94(4) of the Insurance (Prudential Supervision) Act 2010;
- the percentage of the value of the assets of a statutory fund that may be invested in associated persons of the life insurer;
- the transfer of life policies between statutory funds by endorsement;
- the allocation of profits and losses and capital payments; and
- the distribution of retained profits and of capital.
Submissions on the draft regulations closed on 22 June 2012.
New Ministry starts work
The new Ministry of Business, Innovation and Employment (MBIE) came into being on 1 July.
MBIE integrates the functions of four former agencies – the Ministry of Economic Development, the Department of Building and Housing, the Department of Labour and the Ministry of Science and Innovation.
Further details about MBIE's purpose and structure are available at www.mbie.govt.nz.
Personal Property Securities Register fees are changing
On 1 August 2012, the Personal Property Securities Register (PPSR) will be making a series of changes to the fees charged for online services.
Details of these changes are set out in the Personal Property Securities Amendment Regulations 2012 and on the PPSR website here.
| Regulatory developments | Top |
Update on Companies Act amendment legislation
Legislation to amend the Companies Act is currently making its way through Parliament under the omnibus Regulatory Reform Bill and the Companies and Limited Partnerships Amendment Bill. The Regulatory Reform Bill is close to completing the Committee of the whole House stage and should have its third reading soon. However, the Companies and Limited Partnerships Amendment Bill is still awaiting its first reading.
Amendments introduced by the Regulatory Reform Bill
The key amendments introduced by the Regulatory Reform Bill clarify and confirm the lawfulness of electronic communication with shareholders and the provision for shareholder participation in meetings by way of audio, audio and visual or electronic means. In practical terms the changes will allow companies to:
- send all notices, statements, reports, accounts and other documents to shareholders and creditors by email, provided the recipient has notified the company that it wishes to receive such documents by electronic means;
- utilise electronic voting systems; and
- hold company meetings through new technology such as live streaming of meetings.
The Regulatory Reform Bill also:
- repeals the requirement for listed companies to send each shareholder a notice advising that it has acquired its own shares on a stock exchange, as this is already covered by NZX's listing rules; and
- removes the requirement for an arbitrator to set an interest rate where a company is buying out a minority shareholder and the buyout does not require arbitration.
The Companies and Limited Partnerships Amendment Bill 2011
In brief, the Companies and Limited Partnerships Amendment Bill amends the Companies Act by:
- tightening the requirements around company registration and company directors to assist in the prevention of New Zealand companies being used for criminal activity in overseas jurisdictions;
- criminalising the breach of two existing directors' duties (namely, the duty of directors to act in good faith and in the best interests of the company and the duty of directors not to agree to, or cause or allow, company business to be carried on in a manner likely to create a substantial risk of serious loss to the company's creditors). Both offences will require actual knowledge for criminal liability; and
- prohibiting 'code companies' (as defined in the Takeovers Code) from undertaking long-form amalgamations under Part 13 of the Companies Act and providing more rigorous voting thresholds and additional judicial oversight for court-approved schemes of arrangement, amalgamation, or compromise under Part 15 of that Act.
Further details of these proposed amendments are discussed in Issue No. 13 of Corporate Reporter.
| News from the Companies Office | Top |
Companies Office fees are changing
On 1 August 2012, the Companies Office will be making a series of changes to the fees it charges for services, and will also begin to collect levies to fund the Financial Markets Authority (FMA) and the External Reporting Board (XRB). Notable changes include:
- the reintroduction of the company annual return fee; and
- the inclusion of FMA and XRB levies within most registration fees and annual return fees (including a $2,000 FMA levy for the registration of a prospectus).
A new fees table is available on the Companies Office website here. For further information, click here.
| Regulatory developments | Top |
Update on M&A legislation
Changes to Companies Act amalgamation provisions for code companies
As noted above, the Companies and Limited Partnerships Amendment Bill includes provisions to amend the Companies Act by prohibiting 'code companies' (as defined in the Takeovers Code) from undertaking long-form amalgamations under Part 13 of the Companies Act and providing more rigorous voting thresholds and additional judicial oversight for court-approved schemes of arrangement, amalgamation, or compromise under Part 15 of that Act.
Consequential amendments will also be made to the Takeovers Act 1993 to provide for the Takeovers Panel's new function of considering whether to provide statements of no objection under the Companies Act.
The Bill was introduced at the end of last year and remains on the Government's list of bills to progress. It has recently been moved up the Government's Order Paper, so we expect it to have its first reading soon. Once it has been sent to the Commerce Select Committee the public will be given an opportunity to make submissions on the Bill.
More clarification for code company transactions under the Regulatory Reform Bill
The omnibus Regulatory Reform Bill (which is currently in the final stages of the Committee of the whole House and should have its third reading soon) includes proposed amendments to the Takeovers Act 1993 to:
- clarify that the Takeovers Code applies to matters that start out under the Code, until the transaction or event has been completed;
- amend the 'code company' definition in the Takeovers Act and the Takeovers Code so that a code company must, as well as having '50 or more shareholder's', have 50 or more share parcels; and
- clarify that the '50 or more shareholders' requirement includes only shareholders holding securities that confer voting rights.
The Bill also introduces an amendment to the Takeovers Act to facilitate more efficient and quicker decision making on the part of the Takeovers Panel by enabling divisions of the Panel to make decisions by way of written resolution signed by all members of the division.
These amendments will be passed as the Takeovers Amendment Act 2012 and will take effect the day after the bill receives the Royal assent (see Supplementary Order Paper No.25).
| Takeovers Panel | Top |
Takeovers Panel consults on defensive tactics rules
The Takeovers Panel has released a consultation paper and draft guidance note on the rules in the Takeovers Code that relate to defensive tactics by target companies. The guidance note addresses:
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the implications of the Code's rules on defensive tactics for directors of target companies (or code companies that could become target companies); and
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the grounds on which the Panel may exercise its jurisdiction to approve an action being taken or permitted by a target company that would otherwise be prohibited as a defensive tactic.
The Panel is seeking submissions from market participants on the guidance note and, in particular, responses to a series of questions raised in the guidance note. The closing date for submissions is 10 August 2012.
The Panel is also proposing changes to the Code that are directed at mitigating some of the risks that arise for directors of a target company under rule 38(1) as a result of restrictive conditions in a takeover offer. The Panel is proposing:
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to prohibit an offeror from relying on or invoking conditions of the offer that restrict the target company from carrying out its ordinary business; and
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to prohibit an offeror from unreasonably relying on or invoking a condition of an offer.
New Code Word released
The Takeovers Panel has released Issue No 31 of Code Word. In this issue the Panel discusses:
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the Panel's expectations and processes for the approval of independent advisers;
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Directors' statements made during takeovers in light of rule 64 of the Takeovers Code. In particular, the Panel addresses whether directors can rely on their 'business judgement' to justify what they say to shareholders or the market in light of rule 64.
The Code Word is available on the Takeovers Panel's website at http://www.takeovers.govt.nz/publications/code-word/.
Takeovers Panel's latest Statement of Intent
The Takeovers Panel has released its Statement of Intent for the period from 1 July 2012 to 30 June 2015. Included among the Panel's policy projects outlined for completion over this period are:
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reviewing the coverage of the Takeovers Code, including projects relating to:
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whether the Code's protections should be extended to the holders of voting securities in entities other than companies, such as unit trusts;
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whether all SMEs that are code companies should have to bear the relatively high compliance burden of the Code;
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whether there are weaknesses in the availability of Code-relevant information when limited partnerships (which afford some privacy to their owners) are used as shareholding vehicles for significant parcels of shares in code companies; and
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reviewing the way Code transactions are done, including projects related to:
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considering whether there are regulatory disincentives to making takeover offers with scrip consideration (i.e., shares or some other form of security are issued by the offeror or by another entity as the form of payment offered to shareholders for their code company shares under the takeover offer);
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whether offerors should be allowed to enter into 'lock up' agreements with shareholders in advance of making a takeover offer (as they currently do); and
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whether partial takeover offers give inappropriate benefits to offerors (by comparison to the process and outcomes from full takeover offers).
A copy of the Statement of Intent is available here.
Panel issues guidance on applying for exemptions from the Takeovers Code
The Takeovers Panel has issued new guidance on how to apply for exemptions from the Takeovers Code (see Guide to applying for exemptions from Takeovers Code), which includes responses to some frequently asked questions on this topic (see Exemptions - Frequently asked questions).
The guide provides information about the Panel's exemption powers under section 45 of the Takeovers Act and the practical aspects of making an application for an exemption.
| Regulatory developments | Top |
New auditors' regime came into force on 1 July
A new regulatory regime for the audit industry came into force on 1 July 2012. The Auditor Regulation Act 2011 establishes a co-regulatory oversight regime to regulate auditors and audit firms that undertake issuer audits. Under the Act, the term "issuer audits" encompasses audits of the financial statements of all those who raise money by way of investments from the public as well as audits of the financial statements of schemes and funds whose securities have been offered to the public. They include banks, insurance companies, finance companies, listed companies and KiwiSaver providers.
Click here for further details on the new regime.
Submissions on the Financial Markets Conduct Bill released
Written submissions to the Commerce Select Committee on the Financial Markets Conduct Bill are now available on Parliament's website here. The committee is currently hearing oral submissions on the Bill, and is due to report back to the House on 7 September 2012.
Regulations proposed for predatory share offers
The Government has announced that it intends to introduce new regulations to address issues with 'predatory' or 'low ball' unsolicited offers under the regulatory-making powers introduced in the Securities Markets Act 1988 (SMA) last year for such offers. These regulations will:
- more clearly define what is and what is not a 'low ball' unsolicited offer;
- require specified minimum information to be included with any unsolicited offer document to enable shareholders to make informed decisions, including stating the market price or a fair estimate;
- outline the requirements to be followed in an offer process, including a minimum offer period and a cancellation period; and
- set out rights and remedies for security holders specific to low ball unsolicited offers.
Currently, the SMA provisions limit FMA to reactive mechanisms to address unsolicited offers, such as:
- issuing warning notices to investors about specific, already identified unsolicited offers; and
- ordering disclosure of such warnings in general, in subsequent unsolicited offer documents and on websites.
The proposed regulations are expected to be in place by the end of the year. For further details see the Cabinet paper outlining Cabinet's agreed proposals (in October 2011) for these regulations.
Financial Reporting Act (Overseas Companies) Exemption Amendment Notice 2012
The Financial Reporting Act (Overseas Companies) Exemption Amendment Notice 2012 extends the expiry date of the Financial Reporting Act (Overseas Companies) Exemption Notice 2007 (the principal notice) from 30 June 2012 to 30 September 2012. The extension will allow the Financial Markets Authority (FMA) to consider the principal notice with four other interrelated class notices due to expire in 2012 currently under review by FMA. In each case, the basis for the notices includes recognition of the adequacy of the offer or financial reporting regimes in the home jurisdiction of the overseas issuer.
| Financial Markets Authority (FMA) | Top |
New Effective Disclosure Guidance Note
FMA has released the final version of its new regulatory guide on improving disclosure in prospectuses and investment statements. This follows on from extensive industry consultations after the release of FMA's proposed guidance in January and revised proposed guidance in April this year [see our earlier updates here and here for details]. The new regulatory guide is Guidance Note: Effective Disclosure.
The guidance note is intended to provide issuers and their directors and advisers with guidance on FMA's role and approach to the review of disclosure documents and to outline issues that FMA considers are important for producing high quality disclosure documents. It includes FMA's views on good practice for ensuring that such documents are "readily understandable" to their intended audience.
What was the outcome of the final consultation round?
There have been no fundamental changes to the draft guidance note as a result of the latest consultation round, with most submitters noting that the updated guidance note released in April had substantively addressed their comments and concerns [see their submissions and FMA's commentary on those submissions]. However, there are still some notable changes that have been made to the final version, including:
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further clarification of which aspects of the guidance apply to prospectuses, investment statements or to both, and clarification that the guidance also applies to 'combined' investment statements and prospectuses;
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an acknowledgement that registered banks have different disclosure requirements for some products and clarification of how the guidance will apply - for example to their investment statements;
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clarification that what FMA means by 'materiality' is the same as that established by recent case law, namely, "information that is likely to affect the judgment of an intending investor when making a decision whether or not to invest";
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In the context of the suggested inclusion of a 'Key Information Section':
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clarification that a Key Information Section in any disclosure document is optional but that FMA regards it as good practice;
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confirmation that the customary important notices/disclaimers section can be included before a Key Information Section; and
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introducing a requirement that a Key Information Section should contain a brief but prominent statement making it clear to readers that it is a summary only;
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Amendments to the 'Material Information' section, including:
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changes to the reference to auditors' independence, recognising that directors of issuers may not always have the information to make an assessment of an auditor's independence and also that this will be disclosed in audit reports;
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some refinements to the 'Risks' section to provide some guidance about the links between the summary of principal risks (which must be in an investment statement) and material risks to be disclosed in a prospectus and to include additional examples of risks suggested by submitters; and
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a more principle-based approach to related party transactions so issuers look at the substance of relationships in addition to relevant accounting and legal definitions and standards;
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Guidance that in limited circumstances, an investment statement can cross-refer to a prospectus (or disclosure statement if applicable);
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Clarification that inclusion of cross-references (to another document) in a prospectus does not meet the requirement to include 'all other material matters' under the Securities Act; and
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A new statement that application forms should be placed at the end of documents to ensure intending investors first read and understand important information before filling in an application form.
When does the guidance note take effect?
The guidance note will be used by FMA from 9 July as part of its risk-based assessment of newly-issued disclosure documents.
Continuous issuers are also encouraged by FMA to review their disclosure documents as soon as practicable, and, in any event, should revise disclosure documents in the light of the guidance note the first time they issue a new investment statement or register a new prospectus after 1 January 2013.
Project update on FMA class exemption review
FMA has released a project update on its review of 44 class exemption notices due to expire later this year. So far FMA has identified eight notices as requiring no substantive amendments and five notices which have been identified as being redundant. A copy of FMA's Project Update is available here.
As part of the review process, FMA is also undertaking further consultation on the following five exemption notices, due to particular issues identified during the initial consultation:
- Securities Act (Amalgamations) Exemption Notice 2002;
- Securities Act (Co-operative Companies) Exemption Notice 2011;
- Securities Act (Renewals and Variations) Exemption Notice 2002;
- Securities Act (Rights, Options and Convertible Securities) Exemption Notice 2002; and
- Securities Act (Takeovers) Exemption Notice 2011.
The consultation paper and request for feedback can be found here. The final date for submissions on these notices is 27 July 2012.
FMA is also undertaking targeted consultation on various notices which have been identified as requiring small but substantive amendments with market participants that have raised issues, or that have particular interests in the notices.
Further information on the class exemption review can be found in FMA's original consultation paper dated 10 April 2012 which is available here.
New tiered levies system introduced to fund FMA
New levies to assist the funding of FMA will apply from 1 August 2012. These are payable by registered Financial Service Providers (FSPs) when filing their annual confirmation, and all persons applying for registration as a FSP. The levies are in addition to the standard annual confirmation and registration fees.
The key regulations giving effect to the changes are the Financial Markets Authority (Levies) Regulations 2012.
Schedules for the FMA levy payable with the annual confirmation for the following classes of FSPs are available on the FMA website on the links below:
- Registered banks and deposit takers
- Licensed insurers
- Trustees and statutory supervisors
- Managers of managed investment schemes
- Providers of other financial services
- All other FSPs
The FMA levy is structured so that different classes of FSPs pay different tiered amounts for different financial activities.
In addition, FMA levies will be collected from other market participants under the Financial Reporting (Levies) Regulations 2012. These regulations provide for levies to be paid in respect of any person making an application for registration or incorporation under the Companies Act 1993, Limited Partnerships Act 2008, the Building Societies Act 1965, or the Friendly Societies and Credit Unions Act 1983 and again in respect of any annual returns required to be filed by those entities under the respective Acts. Details of these changes are available on the Companies Office website.
The fee for registering a prospectus with the Companies Office will now include an FMA levy of $2,000.
FMA consults on guidance on KiwiSaver sales and distribution
FMA is consulting on proposed guidance on different service levels for the sale and distribution of KiwiSaver schemes. The types of service are:
- 'no advice'- (also sometimes referred to as 'information only');
- class advice - advice that is generic to an audience, for example, advice in a brochure or seminar; and
- personalised advice - advice that is tailored to the client, taking into account the client's situation or goals.
The draft guidance note (Guidance note - KiwiSaver sale and distribution June 2012) focuses on factors FMA will take into account in considering whether advice is given on KiwiSaver and, if so, whether the advice is a class or personalised service. It describes FMA's interpretation of existing law, and how they will apply and enforce it.
Submissions close on 16 July. Click here for further information.
FMA consultation on disclosure of non-GAAP financial information
FMA is consulting on proposed guidance on the use of financial information in corporate documents, such as transaction documents and market announcements, where that financial information is not presented in accordance with generally accepted accounting practice (GAAP). FMA considers that, while non-GAAP financial information can provide useful information to investors, it also has the potential to be misleading if, for example, it is used to mask bad news or to smooth results. Non-GAAP financial information can also lead to inaccurate comparisons of performance in different entities. The proposed guidance sets out FMA's views on when non-GAAP financial information should or should not be used and what additional disclosure should be made so that the information is not misleading.
Submissions on the draft guidance note (DRAFT Guidance Note - Disclosing non-GAAP financial information) closed on 29 June and FMA expects to publish the finalised guidance note by 31 August with a view to it applying to all documents published on or after 1 January 2013.
Further information on this consultation is available here.
KiwiSaver Performance Fees Guidance Note
FMA has released the final version of its guidance note on KiwiSaver performance fees.
The guidance sets out the criteria against which FMA will assess the reasonableness of performance fees, which are fees charged to an investor when an investment manager outperforms an appropriate benchmark.
The guidance was first issued in draft form in November last year for consultation. Thirteen submissions were received with the majority supporting the overall objective and headline principles. Issues raised included whether the guidance note was too prescriptive, the requirement for market-related benchmarks and whether it was outside the scope of the 'not unreasonable' test in the KiwiSaver Act 2006 for FMA to be considering any performance fees charged or paid to managers of third party/underlying funds.
To view these submissions and a summary of the changes incorporated into the final version of the guidance note click here.
The guidance note can be found here.
| NZX Limited (NZX) | Top |
NZX introduces new diversity rule
Following consultation earlier in the year, NZX has announced the introduction of a new diversity listing rule which, subject to Financial Markets Authority approval, will be applied to annual reports for all NZX Main Board listed issuers with a balance date on or after 31 December 2012.
In summary, two new requirements in rule 10.5.5 of the NZSX/NZDX Listing Rules will require the following to be included in an issuer's annual report:
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a quantitative breakdown of the gender composition of their directors and officers, and, as appropriate, with comparative figures for the previous year; and
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if the issuer has a formal diversity policy, a statement from the board giving an evaluation of the issuer's performance with respect to that policy.
These requirements are substantially the same as those proposed in NZX's March Consultation Memorandum. However, the proposal that issuers provide a quantitative breakdown of the gender composition of each of their subsidiary boards has been removed, and the term "Senior Management team" has been replaced with the term "officer" (adopting the definition of "officer" in the Securities Markets Act 1988) to provide more certainty.
The requirement for an issuer to provide comparative figures in respect of the gender composition of its directors and officers for the prior period also has been added to ensure that trends in diversity are apparent when reading an issuer's annual report. This requirement will be phased in over time to reflect the commencement date of the new requirements.
NZX is also planning to issue a guidance note later in the year which will explain the diversity rule, its application and timing. The guidance note will include the outline of a basic diversity policy and a recommended governance practice with respect to its adoption, including recommendations for adoption of measurable objectives and reporting progress against those objectives.
Further details on the new diversity rule and copies of submissions received during the consultation period (in April/May this year) are available at www.nzx.com/market-supervision/rules-consultation.
NZX makes organisational changes
NZX CEO Tim Bennett has announced that a number of changes are being made to NZX's organisation. These include:
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The formation of a new Markets Services group, responsible for regulated market operations and customer service. The group's functions will include Issuer Services, Market Surveillance, Clearing Operations and Risk functions, Derivative Operations, Indices and Data Operations; and
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A more tightly focused Regulation team (led by current Head of Market Supervision, Robyn Dey). The team will be responsible for the roles of Issuer Regulation, Participant Compliance, Enforcement and Markets Policy Development. The role of Corporate Counsel, which has to date been part of the Market Supervision team, will ultimately report to the CFO.
To read the full announcement click here.
| Financial adviser regime developments | Top |
New mutual recognition arrangements for Australian and New Zealand financial advisers
New mutual recognition arrangements for Australian and New Zealand financial advisers came into effect on 6 July. The arrangements enable financial advisers to provide services in each other's countries based on the qualifications and experience they have attained from their home country.
New Zealand arrangements
The Financial Advisers (Australian Qualified Advisers) Exemption Notice 2012 sets out FMA's exemption for Australian advisers to operate in New Zealand. The notice allows Australian qualified advisers to be authorised financial advisers (AFAs) in New Zealand based on their existing Australian qualifications. Australian advisers who hold the specified qualifications will be exempt from the educational qualifications requirements for AFAs set out in the Code of Professional Conduct for AFAs, and will be able to hold a licence relevant to their practice area and qualifications in Australia. The exemption is also subject to a number of other restrictions and conditions, such as compliance with the New Zealand Code of Professional Conduct for AFAs. To view FMA's fact sheet on the new exemption click here.
Prior to the grant of this exemption, the only avenue for recognition of Australian-qualified advisers when they applied to be licensed advisers in New Zealand (i.e., AFAs) was under the Trans-Tasman Mutual Recognition Act 1997. This is very limited in its application for financial advisers as it applies only to individuals who are Australian licence holders when they apply to be authorised/registered under the New Zealand financial adviser regime.
Australian arrangements
To enable New Zealand AFAs to operate in Australia, the Australian Securities & Investments Commission (ASIC) has provided relief from Australian training requirements by amending its regulatory guides (RG 146 Licensing: Training of financial product advisers and RG 206 Credit licensing: competence and training) which set out the minimum training requirements for individual financial advisers in Australia.
The amended regulatory guides treat:
- current and former AFAs; and
- current and former advisers of qualifying financial entities (QFEs) who meet the competency requirements to be an AFA set out in Code Standard 16 of New Zealand's Code of Professional Conduct for Authorised Financial Advisers,
who have practised for at least six consecutive months, as fully meeting the training standards currently required by the respective guides for the relevant products or subject areas covered in their New Zealand qualifications (apart from superannuation and margin lending due to the lack of corresponding training requirements in New Zealand for these products). [A 'former adviser' is an adviser not currently practising but who has done so within the three years before the adviser started practising in Australia.]
| Regulatory Updates | Top |
New fees for a customised price-quality path proposal
The Commerce Act (Fees) Amendment Regulations 2012 amend the Commerce Act (Fees) Regulations 1990 by prescribing a fee of $23,000 (inclusive of goods and services tax) for a proposal for a customised price-quality path under Part 4 of the Commerce Act 1986 (which relates to regulated goods and services).
Section 53Y of the Commerce Act 1986 provides that the Commerce Commission's costs in assessing a proposal for, and setting or reconsidering, a customised price-quality path must be met by the person who makes the proposal for a customised price-quality path.
| New Zealand Commerce Commission (NZCC) | Top |
Speeches
The NZCC has issued the following speeches:
Agency Effectiveness - The New Zealand Experience, 2012 Taiwan International Conference on Competition Policy and Law, Taipei, Taiwan
During a conference in June 2012, Dr Mark Berry, Chair of the Commission, delivered a presentation on the effectiveness and comparative international ranking of the NZCC as a competition agency.
View this presentation
Energy Regulation – Electricity Distribution Business CEOs' Meeting
Susan Begg, Deputy Chair of the Commission, delivered a presentation in June 2012 on NZCC's regulation of the energy industry. The presentation covers issues such as input methodologies for default price paths, price path resets and information disclosure.
View this presentation
Energy Regulation, New Zealand Council for Infrastructure Development Meeting
On 13 June 2012, Susan Begg, Deputy Chair of the Commission, delivered a presentation on the responsibilities, progress and future focus for energy regulation in New Zealand. Covering the Transpower capex input methodology, the presentation concluded that there has been substantial progress on Part 4 of the Commerce Act (despite delays caused by litigation) but that the major tasks of resetting price paths and finalising information disclosure still remained.
View this presentation
Keynote speech for the 12th Annual Competition Law and Regulatory Review conference
On 28 May 2012, Dr Mark Berry, Chair of the Commission, presented a comprehensive update on current matters in the NZCC's work programme. Key topics in the speech included the investigation and criminalisation of cartels, significant merger and acquisition decisions (including Godfrey Hirst's appeal against a NZCC authorisation decision), consumer finance and related prosecutions and regulation of the Telecommunications and Dairy industries.
Click here for more
Media releases
The NZCC has issued the following media releases:
Industry regulation and regulatory control
NZCC releases draft report on dry run review of Fonterra's farm gate milk price
The NZCC has released a draft report on the dry run review of Fonterra's farm gate milk price and is seeking submissions from interested parties on its initial conclusions. The NZCC's initial conclusion is that Fonterra's setting of the farm gate milk price is not inconsistent with the purpose and principles of the milk price regime set out in the Dairy Industry Restructuring Amendment Bill 2012.
Click here for more
NZCC releases process and issues paper for review of airport services
The NZCC has released a process and issues paper for the review of how effectively information disclosure regulation is working in the airports sector. The paper seeks responses to a number of questions, including questions about Wellington International Airport Limited's disclosed information and its conduct in the recent price-setting round.
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NZCC releases draft input methodologies
The NZCC has released draft input methodologies for electricity distribution services and gas pipeline services. The draft input methodologies concern the valuation of assets, allocation of costs and treatment of taxation.
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Mergers and acquisitions
Pact Group granted clearance to acquire Viscount Plastic NZ subject to a divestment undertaking
The NZCC has cleared Pact Group Pty Limited to acquire the plastic pails business of Viscount Plastic (NZ) Limited. The clearance was given on the basis of a divestment undertaking – the Pact Group will sell certain assets that currently produce plastic pails to a third party. Pact Group and Viscount are the two largest suppliers of plastic pails in New Zealand.
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NZCC finds Igloo joint venture unlikely to lessen competition in pay TV market
The NZCC has completed an investigation into the joint venture between Television New Zealand Limited (TVNZ) and Sky Network Television Limited (Sky) finding the pay TV market will not be less competitive as a result of the venture. In November 2011, TVNZ entered into the joint venture agreement with Sky to launch a new low-cost subscription TV service, known as Igloo and the Commission received a number of complaints that the joint venture had the potential to substantially lessen competition.
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NZCC declines clearance application for epay to acquire Ezi-Pay
By a split decision the NZCC has declined an application from epay for clearance to acquire Ezi-Pay. epay and Ezi-Pay both act as distributor-agents for a range of pre-paid products, including pre-paid mobile phone top-ups, calling cards, gift cards, digital content and pre-paid electricity.
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Universal Music granted clearance to acquire recorded music businesses of EMI Music
The NZCC has cleared Universal Music Holdings Limited, to acquire the recorded music businesses of EMI Group Global Limited, to the extent that the acquisition affects the following markets in New Zealand; the market for the discovery and recording of artists; promotion and distribution of recorded music; wholesale supply of recorded music; and licensing of recorded music to third parties.
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Market behaviour
Important win on jurisdiction issue for NZCC in freight forwarding case
The Court of Appeal has confirmed the New Zealand High Court's jurisdiction in the NZCC's ongoing freight forwarding cartel case against Kuehne+Nagel International AG. The decision recognises the potential for overseas parent companies to be held to account in this country for the conduct of their New Zealand subsidiaries.
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For further discussion on this decision see our earlier article Exporting jurisdiction: liability of foreign parents under the Commerce Act.
Japan Airlines admits role in air cargo cartel – ordered to pay $2.275 million
The High Court has ordered Japan Airlines Co Limited to pay a $2.275 million penalty for breaches of the Commerce Act.
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NZCC welcomes Court of Appeal judgment in data tails case
The Court of Appeal has upheld an earlier High Court decision against Telecom for misusing its market power in breach of section 36 of the Commerce Act. The threshold for making out misuse to the court is high, meaning that in practice it is difficult prove. This decision is notable in that the Court considered the threshold was satisfied.
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Telecommunications
Competition becoming more intense in telecommunications market – annual monitoring report
The NZCC has released its 2011 Telecommunications Annual Monitoring Report analysing the state of New Zealand's telecommunications markets. The report found that there has been a fall in market concentration in New Zealand which the NZCC says indicates that competition is becoming more intense, and that consumers are being offered an increasingly diverse range of competitively-priced services.
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NZCC concludes study into factors likely to affect the uptake of high speed broadband
Following the introduction of the Ultra Fast Broadband and Rural Broadband initiatives, the Commission undertook a study to identify what factors may affect uptake of high speed broadband services by consumers and businesses. Two key areas were identified by the study as important to consumers; costs relating to connecting and using high speed broadband, and the availability of video-on-demand services.
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NZCC welcomes appointment of Telecommunications Commissioner
Replacing Dr Ross Patterson, Dr Stephen Gale has been appointed to the position of Telecommunications Commissioner. Dr Gale has worked as an economic adviser to businesses and government on competition matters and since July 2010 has been an Associate Commissioner at the NZCC. Since February 2012, Dr Gale has been a member of the Commission's Telecommunications division.
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NZCC finds backhaul competition continues to increase
The NZCC has released the draft decision of its annual competition review of unbundled copper local loop (UCLL) and unbundled bitstream access (UBA) backhaul link services. This was the fourth competition review of UCLL backhaul links and the second competition review of UBA backhaul links, conducted under section 30R of the Telecommunications Act.
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Consumer issues
NZCC urges tax refund agents to comply with the Fair Trading Act
The NZCC has put personal tax summary intermediaries (PTSIs) on notice that they may be failing to meet their obligations under the Fair Trading Act. PTSIs are a type of tax refund agent that process income tax refunds for salary and wage earners. They typically offer their services through temporary locations at shopping centres, as well as over the internet.
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NZCC welcomes penalties against third tier lender
A third tier lender who breached a number of provisions of the Credit Contracts and Consumer Finance Act (CCCF Act) has been sentenced in the Christchurch District Court. NZCC prosecuted in relation to 15 loan contracts entered into between September 2006 and August 2007 with 11 different debtors. The contracts did not meet crucial conditions under the CCCF Act.
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NZCC warns Sky TV over possible breach of Fair Trading Act
The NZCC launched a Fair Trading Act investigation into Sky TV earlier this year, following a complaint from a customer. When contacted by the NZCC, Sky TV conducted its own investigation into the matter and has since admitted the mistake and credited the affected subscribers.
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| Australian Competition and Consumer Commission (ACCC) | Top |
Selected ACCC media releases
The ACCC has issued the following media releases:
Mergers and acquisitions
ACCC authorises Corporate Alliance between Virgin Australia and Skywest Airlines
The ACCC has granted authorisation to a Corporate Alliance between Virgin Australia and Western Australian carrier, Skywest Airlines for five years. The Corporate Alliance will allow the airlines to offer bundled air passenger transport services to corporate customers who seek an integrated suite of charter, domestic and international services, such as mining companies with large fly-in-fly-out workforces.
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ACCC proposes to authorise aviation alliances
The ACCC has issued two separate draft decisions which propose to grant authorisation to an Affiliation Agreement between Emirates and Flydubai, and separately, a Commercial Alliance between Etihad and Air Berlin.
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ACCC not to oppose AGL's acquisition of Loy Yang Power
The ACCC will not oppose the proposed acquisition by AGL Energy Limited of Great Energy Alliance Corporation Pty Limited, which owns Loy Yang Power (owner of the Loy Yang A power station). The ACCC concluded that the strong competition provided by all the remaining generators as well as some potential for investment in new generation energy would be likely to preserve competitive tension in relevant markets.
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ACCC calls for comment on proposed acquisition of Caringbah Hotel by Australian Leisure & Hospitality
The ACCC has released a Statement of Issues on the proposed acquisition of the Caringbah Hotel, located in the Caringbah area of Sydney, NSW, by ALH Group Pty Ltd. The ALH Group is 75 per cent owned by Woolworths Limited.
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ACCC not to oppose Glencore International plc's proposed acquisition of Viterra Inc.
The ACCC has announced that it does not intend to oppose Glencore Incorporated plc's proposed acquisition of Viterra Inc. The ACCC considered that the proposed acquisition would be unlikely to enable Glencore post-acquisition to depress prices paid to growers for grain or raise prices of grain to domestic customers due to the presence of a number of viable alternative grain traders.
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Market behaviour
ACCC investigates information sharing arrangements in the petrol industry
The ACCC has commenced a formal investigation into petrol price sharing arrangements which allow for the private exchange of comprehensive price information between the major petrol retailers. The ACCC is concerned that this allows petrol retailers to quickly signal price movements, monitor competitors' responses, and react to them.
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ACCC chairman outlines priorities in enforcing competition law
Speaking to the 2012 Competition Law Conference in Sydney, Chairman Rod Sims detailed the priorities of the ACCC's engagement with the online world and described the challenges of the digital and online economy as posing one of the biggest regulatory challenges of a generation.
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Court dismisses appeal of Carmichael builders in ACCC price controlling case
The Full Federal Court in Brisbane has dismissed an appeal by Queensland construction company Carmichael Builders Pty Ltd against findings in 2011 that Carmichael engaged in illegal price controlling conduct known in the construction industry as 'cover pricing'.
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Malaysia Airlines Cargo Sdn Bhd penalised $6 million for price fixing cartel
The Federal Court in Sydney has penalised Malaysia Airlines Cargo Sdn Bhd $6 million for price fixing as part of a cartel following action by the ACCC.
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ACCC proposes to authorise Star Alliance programs
The ACCC has issued a draft decision proposing to grant authorisation to Star Alliance for its Corporate Plus, Conventions Plus and Meetings Plus programs for eight years. The programs cover arrangements allowing airlines who are Star Alliance members to jointly offer discounted fares, volume incentives and discounts on published fares to corporate customers and conference organisers under one contract.
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Access
ACCC varies fixed line services final access determinations
The ACCC has completed its public inquiry into varying the fixed line services final access determinations (FADs). The FADs set price and non-price terms and conditions for access to regulated fixed voice services. They create a benchmark that parties can fall back on when they have not negotiated alternative access terms and only apply where there is no commercial agreement between the parties.
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Consumer issues
TPG penalised $2 million for misleading broadband advertising
The Federal Court has ordered TPG Internet Pty Ltd to pay $2 million in civil pecuniary penalties for false and misleading advertising and failing to prominently specify the minimum charge in relation to a national advertising campaign following action by the ACCC.
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Apple Pty Ltd penalised $2.25 million for misleading "iPad with WiFi + 4G" claims
Following action taken by the ACCC, the Federal Court has ordered Apple Pty Ltd (Apple) to pay $2.25 million in civil pecuniary penalties for misleading advertising in relation to the promotion of its "iPad with WiFi + 4G" which has been found to have contravened the Australian Consumer Law.
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The High Court to hear Google's appeal
Google will appeal against findings by the Full Federal Court that it had engaged in conduct that was misleading or deceptive or likely to mislead or deceive by publishing, or causing to be published, four advertisements on the results pages of its Google Australia website.
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| Regulatory developments | Top |
Proposed changes to electricity and gas regulation included in the Consumer Law Reform Bill
The Consumer Law Reform Bill currently before Parliament proposes to make two key changes to gas and electricity industry regulation. The Bill is an omnibus bill which amends various consumer laws, including the Consumer Guarantees Act 1993 (CGA). This note focuses on the impact of the Bill on the electricity and gas industries.
Clarification of the meaning of 'acceptable quality' to cover electricity and gas
One of the core features of the CGA is the requirement that consumer goods are guaranteed to be of 'acceptable quality'. However, whilst electricity and gas are considered consumer goods under the CGA, they do not readily fit the CGA's definition of 'acceptable quality' which is primarily targeted at more conventional consumer goods. The Bill clarifies the meaning of 'acceptable quality' under the CGA in relation to electricity and gas supplied to consumers.
The proposed amendment establishes that in order for electricity and gas to be of 'acceptable quality' its supply must, in the eyes of the reasonable consumer, be safe, reliable and able to be consistently used for reasonable purposes. In considering what a reasonable consumer would expect, the proposed amendment assumes the consumer takes into account matters such as emergencies, network maintenance, price and location of supply. Whilst this proposal clarifies the law on this point, it is unlikely to represent a substantial change from the current position.
New statutory indemnity imposed on lines companies
The Bill also introduces a new requirement in the CGA that Transpower and other entities which provide 'line function services' (lines companies) must indemnify retailers for any loss attributable to a failure of transmission services. This requirement is very similar to, and may conflict with, the indemnity provisions which already operate under the Electricity Industry Code 2010 (the Code).
The Code currently provides that all use-of-system agreements between retailers and lines companies are deemed to include a clause whereby the lines company indemnifies the retailer for losses attributable to a failure of the lines company's network. However, the Code provides that the parties to such an agreement may contract out of this requirement, an option which would be unavailable under the proposed CGA amendment. The Code also excludes Transpower from the obligation to provide an indemnity, however the Electricity Authority has noted that they are currently reviewing this exception and may impose a similar requirement on Transpower in the future.
The Electricity Authority has recognised this conflict between these two regimes, and has made a submission opposing the inclusion of a statutory indemnity for electricity and gas retailers.
Timeline
The Bill had its first reading on 9 February 2012, and is currently being considered by the Commerce Select Committee. The select committee are to report back to the House by 9 August 2012.
For details of other changes arising from the Consumer Law Reform Bill see our earlier article Getting ready for the Consumer Law Reform Bill.
Update on the review of the Crown Minerals Act regime
In May 2012, the Ministry of Economic Development (MED) released a supplementary discussion paper to its March 2012 paper which proposed changes to the Crown Minerals Act 1991 regime (CMA regime). The May 2012 paper (Transitional arrangements for oil, gas and minerals permit holders- Discussion Paper, May 2012) focused on the transition of current permit holders to the proposed new CMA regime. Submissions on this paper closed on 8 June.
The CMA regime regulates how permits are allocated to prospect, explore for and mine oil, gas and minerals. It also establishes the royalty rate that companies pay to the Government over and above company tax. Royalties and tax revenue combined already account for over 40 percent of the profits from current oil and gas operations in New Zealand. The proposed reforms include:
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developing a front-end process to ensure companies' health, safety and environmental capabilities are well known as they enter the permitting process;
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ensuring regulatory efforts are proactive, co-ordinated and focus on operations that have the highest technical and geological complexity, and that generate the bulk of royalty income;
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developing a pragmatic, streamlined management regime for low-risk activities associated with minerals like industrial rocks and alluvial gold; and
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improving dialogue concerning the Crown Minerals Act regime between regulatory agencies, iwi and other important stakeholders.
More than 160 submissions were received from industry participants, iwi, non-governmental organisations, and members of the public on the March 2012 paper. Bell Gully's submission is available here.
The package of reforms arising out of the review will include a bill to amend the Act, proposed new minerals programmes, and changes to reporting and fees regulations. An amendment bill is expected to be introduced into Parliament later this year. There will be another opportunity to have input at the select committee stage of the bill.
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Government announces changes to ETS
The Government has announced a number of changes to the New Zealand Emissions Trading Scheme (ETS) to be implemented through legislation to be passed this year. These changes flow from the 2011 Review Panel report and consultation undertaken during April and May 2012.
The purpose of the changes is to maintain the costs that the ETS places on the economy at current levels. The changes also make a number of amendments to improve the operation of the ETS, particularly for forest landowners.
The key changes are:
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to extend transitional measures designed to reduce the initial cost impacts of the scheme beyond 2012. In particular, these will extend the ability of many of those with ETS obligations to surrender one emissions unit for every two tonnes of emissions (the 'one for two'). In addition, participants will also have the choice to meet their obligations by paying the Government $25 per tonne of emissions (the fixed price option);
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to defer the start date for surrender obligations for biological emissions from agriculture, pending a review in 2015. The Government has indicated that biological emissions from agriculture will only incur surrender obligations if there are technologies available to reduce these emissions and international competitors are taking sufficient action on their emissions in general;
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to introduce 'offsetting' as an option for pre-1990 forests, giving forest landowners the flexibility to convert their land to a better use. This means that these forest landowners will be able to convert forest land without deforestation liabilities, provided they plant a carbon equivalent area of forest elsewhere.
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pre-1990 landowners will continue to receive their allocation of emissions units in full, unless they take up offsetting. In recognition of the benefits offered by offsetting, pre-1990 forest landowners who take up offsetting will need to return the second tranche of this allocation;
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to introduce a power to allow the Government to increase the supply of New Zealand Units (NZUs, the primary emissions unit used within the ETS) through an auction, within an overall cap on the number of NZUs auctioned and allocated. The intention behind this change is to help to ensure that ETS participants do not need to fund more emissions reductions in other countries than New Zealand needs to in order to meet its international obligations or domestic targets.
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not to introduce a new power that specifically allows for quantitative restrictions on the number of international emissions units that can be surrendered by those with ETS obligations. This is to ensure that the carbon prices faced by ETS participants continue to reflect international prices.
In addition, the Government has confirmed its previous "in principle" decisions in relation to the synthetic greenhouse gas sector. The Government is also proposing a number of smaller, more technical changes to improve the operation of the ETS.
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| Further commentary | Top |
In addition to the Corporate Reporter, Bell Gully also produces one-off client updates on corporate matters of particular significance. During the period covered by this issue of the Corporate Reporter we have published the following client updates:
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Employee privacy in the cloud age
Last month the Privacy Commissioner reprimanded an employer for using key stroke monitoring software to obtain an employee's password and access their personal email account. Read on -
Exporting jurisdiction: liability of foreign parents under the Commerce Act
In late May, the Court of Appeal held in Kuehne+Nagel International AG v Commerce Commission [2012] NZCA 221 that the New Zealand Courts should accept jurisdiction in proceedings against Kuehne+Nagel International AG. Read on -
The Commerce Commission (International Co-operation, and Fees) Bill – empowering provision of information to overseas competition regulators
After nearly four years on the Parliamentary Order Paper, the Commerce Commission (International Co-operation, and Fees) Bill is finally inching across the finishing line. Having recently survived its second reading, it was, at the time of writing, before the Committee of the Whole House. Once passed, the Bill will empower much greater investigatory co-ordination between the Commerce Commission and foreign antitrust agencies such as the Australian Competition and Consumer Commission. Read on -
FMA finalises its Effective Disclosure Guidance Note
The Financial Markets Authority (FMA) has released the final version of its new regulatory guide on improving disclosure in prospectuses and investment statements. The guidance note is intended to provide issuers and their directors and advisers with guidance on FMA's role and approach to the review of disclosure documents and to outline issues that FMA considers are important for producing high quality disclosure documents. Read on -
The Lombard verdict: important lessons for directors
The spectacular collapse of dozens of finance companies continues to play out in the courtroom, this time in the form of criminal prosecutions of directors for allegedly defective disclosures in offer documents. As has been widely reported, in February 2012 Dobson J found the directors of Lombard Finance and Investments Ltd (Lombard) guilty on charges arising from untrue statements made in offer documents: R v Graham [2012] NZHC 265. The case has attracted a high level of media attention, not only because it involved a failed finance company, but also because two of the directors were former Ministers of Justice. Read on -
Competing concerns – private litigant access to leniency materials
The Commerce Commission's leniency and co-operation policies, which offer immunity or reduced penalties to parties that admit breaches of the Commerce Act 1986 and assist the Commission, are critically important weapons in its armoury. More than any other strategy, these policies have lead to the detection and disruption of anti-competitive cartels. However, two recent European cases highlight a dilemma for parties seeking the benefits of leniency or co-operation: the risk that third parties, the alleged victims of the cartels, will obtain the information they provide to the regulator and use that information in private proceedings against them. That dilemma in turn creates a significant concern for the regulator: that the threat of disclosure of such information will deter leniency and co-operation applicants. Read on
NEED MORE INFORMATION?
| Contact us | Top |
For more information on any of the items in the Corporate Reporter, please contact your usual Bell Gully adviser or any member of Bell Gully's Corporate, Commercial or M&A teams. Alternatively, you can contact the editor Diane Graham by email or call her on 64 9 916 8849.
Disclaimer Links to third party websites in this document 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. © Bell Gully 2012 |
