3 Applications for registration of scheme governed by trust deed

• (1) The trustees of any superannuation scheme—

  • (a) that is governed by a trust deed that is interpreted and administered in accordance with New Zealand law; and

  • (b) that has at least 1 trustee who is a New Zealand resident,—

  may apply to the FMA for registration of the scheme.

  (2) Every such application shall be accompanied by a copy of the trust deed and of every amendment to the trust deed.

  Section 3(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

4 Applications for registration of scheme constituted under Act of Parliament

• (1) The person appointed to administer any superannuation scheme that is constituted under an Act of the Parliament of New Zealand may apply to the FMA for registration of the scheme.

  (2) Every such application shall be accompanied by a copy of the Act of Parliament and any other documents governing the scheme.

  Section 4(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

5 Matters required to be specified in application

• Every application for registration shall specify the matters set out in Schedule 1.

6 Registration of schemes

• (1) The FMA must register a scheme within 14 days after receiving the application and the documents required to accompany the application.

  (2) The registration shall be deemed to take effect on whichever date is the latest of—

  • (a) the commencement date of the scheme:

  • (b) the date on which the FMA received the application and the documents required to accompany the application:

  • (c) such date as may be determined by agreement between the trustees and the FMA.

  Section 6(1): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 6(2)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 6(2)(c): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

7 Content of trust deeds

• The trust deed of every registered superannuation scheme shall specify the following matters:

  • (a) the conditions of entry of members to the scheme:

  • (b) the conditions as to termination of membership of the scheme:

  • (c) the contributions payable:

  • (d) the conditions under which benefits become payable and the way in which the benefits are to be determined:

  • (e) the number of trustees, and provision for their appointment and retirement:

  • (f) the circumstances in which the scheme may be wound up, and the way in which the assets of the scheme are to be distributed in the event of a winding up.

8 Implied provisions as to investment of scheme money

• The following provisions shall be implied in every trust deed of a registered superannuation scheme:

  • (a) that all money belonging to the scheme and available for investment shall be invested in accordance with the provisions of the Trustee Act 1956 as to the investment of trust funds; and

  • (b) that, notwithstanding anything to the contrary in section 13D(1) of that Act, the trustees and any investment manager of the scheme shall, in exercising the power of investment, exercise the care, diligence, and skill required of that person by section 13B or section 13C of that Act, as is applicable.

9 Implied provision as to amendments reducing accrued benefits, etc

• There shall be implied in every trust deed of a registered superannuation scheme a provision that no amendment of the trust deed which would have the effect of—

  • (a) reducing, postponing or otherwise adversely affecting the benefits, whether vested, contingent, or discretionary, that may in due course flow from, or are attributable to, membership of the scheme up to the date the amendment is made; or

  • (b) removing any right of the members or other beneficiaries to participate in the management of the scheme; or

  • (c) increasing the contributions, fees, or charges payable by any member; or

  • (d) providing for the reversion of any assets of the scheme to any employer to any greater extent than already provided for in the trust deed,—

  shall be made without the written consent of every member, and of every other beneficiary who is in receipt of a benefit under the scheme at the date the amendment is made, who would be adversely affected by the amendment.

9A Implied provision as to alterations to scheme

• There shall be implied in every trust deed of a registered superannuation scheme a provision that no alteration to the scheme that—

  • (a) would be contrary to or have the effect of nullifying or reversing or amending any matter stated in the trust deed, or any provision implied in the trust deed by this Act; or

  • (b) would have the effect of extending or varying or limiting the scope of the trust deed in any material particular—

  shall be effected otherwise than by way of amendment to the trust deed in accordance with section 12.

  Section 9A: inserted, on 1 August 1990, by section 2 of the Superannuation Schemes Amendment Act (No 2) 1990 (1990 No 80).

9B Implied provision as to transfer of members, etc

• (1) There shall be implied in every trust deed of a registered superannuation scheme a provision that no member or beneficiary of the superannuation scheme will be transferred to another superannuation scheme without the written consent of the member or beneficiary concerned.

  (1A) This section is subject to section 9BAA.

  (2) The trustees of each registered superannuation scheme affected must notify the persons described in subsection (2A) in accordance with subsection (2B) if it is proposed to transfer (whether at the same time or over an extended period) all or a substantial number of members or beneficiaries—

  • (a) from a registered superannuation scheme to any other superannuation scheme; or

  • (b) from a superannuation scheme to a registered superannuation scheme.

  (2A) The persons referred to in subsection (2) are—

  • (a) all members and beneficiaries of each registered superannuation scheme (other than those members and beneficiaries that, in the opinion of the FMA, are not likely to be materially affected by the proposed transfer referred to in that subsection); and

  • (b) the FMA.

  (2B) At least 1 month before the date by which the written consent of members and beneficiaries to a proposed transfer referred to in subsection (2) must be received by the trustees of each registered superannuation scheme affected,—

  • (a) the trustees must notify the members and beneficiaries described in subsection (2A)(a) in writing of—

    • (i) the proposed transfer and its implications for members and beneficiaries; and

    • (ii) the date on which the proposed transfer is to occur; and

    • (iii) the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees; and

    • (iv) the fact that a copy of the notice has been forwarded to the FMA; and

  • (b) the trustees must notify the FMA in writing of—

    • (i) the proposed transfer and its implications for members and beneficiaries; and

    • (ii) the date on which the proposed transfer is to occur; and

    • (iii) the date by which the written consent of members and beneficiaries to the proposed transfer must be received by the trustees.

  (3) The giving of notice under subsection (2) shall not derogate from the need to comply with any other provision of this Act.

  (4) For the purposes of section 20, and without limiting the provisions of that section, it shall be a ground for the FMA to have reasonable cause to believe that a particular registered scheme to which members are transferred fails to meet the requirements of this section if—

  • (a) over any 12-month period, either—

    • (i) 20% or more of the members or beneficiaries of any other superannuation scheme are transferred to the particular registered scheme; or

    • (ii) the number of members or beneficiaries of the particular registered scheme is increased by 20% or more by reason of any transfer of members and beneficiaries from any other scheme; and

  • (b) the members and beneficiaries of the particular registered scheme have not been notified of the transfer, or any notification given has not adequately set out the implications of the transfer.

  (5) For the purpose of this section, references to the transfer of members or beneficiaries from one scheme to another include references to transfers of members or beneficiaries from one section of a registered scheme to another section of the same scheme.

  Section 9B: inserted, on 1 August 1990, by section 2 of the Superannuation Schemes Amendment Act (No 2) 1990 (1990 No 80).

  Section 9B(1A): inserted, on 1 December 2006, by section 231 of the KiwiSaver Act 2006 (2006 No 40).

  Section 9B(2): substituted, on 3 May 2001, by section 3 of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 9B(2A): inserted, on 3 May 2001, by section 3 of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 9B(2A)(a): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9B(2A)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9B(2B): inserted, on 3 May 2001, by section 3 of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 9B(2B)(a)(iv): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9B(2B)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9B(4): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

9BAA When FMA may approve transfers without consent of members and beneficiaries

• (1) The requirement in section 9B to obtain the written consent of all or any of the members and beneficiaries of a scheme does not apply if the FMA approves the transfer under this section.

  (1B) This section applies despite anything to the contrary in a scheme's trust deed.

  (2) The FMA may approve the transfer if, and only if, the FMA is satisfied that—

  • (a) the terms and conditions of the scheme to which the members or beneficiaries are to be transferred (new scheme) are no less favourable to members or beneficiaries than the terms and conditions of the scheme from which they are being transferred (old scheme); and

  • (b) the transfer is otherwise reasonable in all the circumstances (including having regard to the value of the assets transferred from the old scheme to the new scheme); and

  • (c) the procedure in section 9BAB has been followed.

  (3) The FMA may decline to approve a transfer if the FMA considers that the transfer would adversely affect the interests of all or any of the members and beneficiaries of the old scheme in any material way.

  (4) In determining whether subsection (2) or (3) applies, the FMA may—

  • (a) have regard to the likely effect of the new scheme on benefits to members and beneficiaries as a whole; and

  • (b) have regard to any other matter that the FMA considers relevant.

  (4B) For a transfer that the FMA has approved,—

  • (a) each relevant member of the old scheme is treated as offering to be a member of the new scheme on the terms and conditions for that new scheme; and

  • (b) the trustee of the new scheme is treated as accepting the member's offer.

  (5) The FMA may publish, in any form that the FMA considers fit, guidance as to matters that the FMA considers relevant under this section (including principles that the FMA may use to decide whether to approve the transfer).

  Section 9BAA: inserted, on 1 December 2006, by section 231 of the KiwiSaver Act 2006 (2006 No 40).

  Section 9BAA heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(1): amended, on 19 December 2007, by section 106(1) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 9BAA(1B): inserted, on 19 December 2007, by section 106(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 9BAA(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(4): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(4)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(4B): inserted, on 19 December 2007, by section 106(3) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 9BAA(4B): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAA(5): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

9BAB How approval under section 9BAA may be granted

• (1) The FMA may accept an application for approval under section 9BAA that is made by all or any of the trustees of the old scheme, the trustees of the new scheme, or a relevant employer, provided that the FMA is satisfied that—

  • (a) it is reasonable in all of the circumstances of the case that the person have standing to make the application; and

  • (b) the person falls within a class specified in any guidelines published by the FMA (if any) for the purposes of this subsection.

  (2) The FMA may require the applicant to give the FMA, with the application or at any later time,—

  • (a) a certificate, signed by a person of any class specified by the FMA, that the transfer meets the requirements of section 9BAA; and

  • (b) any other information about the new scheme, the old scheme, or the transfer.

  (3) The applicant must give notice to every member and beneficiary to whom the transfer will relate—

  • (a) that the applicant has applied for approval to transfer the members and beneficiaries without their written consent; and

  • (b) that the member or beneficiary may make submissions to the FMA about the transfer.

  (4) The FMA must have regard to any submission before deciding whether or not to give approval.

  (5) The FMA may give approval subject to any terms and conditions that the FMA may specify in the notice of approval, and the approval is effective only if the transfer is carried out in accordance with those terms and conditions.

  (6) To avoid doubt, any approval given under this section is subject to section 23.

  Section 9BAB: inserted, on 1 December 2006, by section 231 of the KiwiSaver Act 2006 (2006 No 40).

  Section 9BAB(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(1)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(2)(a): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(3)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(4): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BAB(5): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

9BA FMA may exempt trustees from requirement to obtain written consent of all members and beneficiaries

• (1) The FMA may exempt trustees of a registered superannuation scheme from the requirement to obtain the written consent of all members and beneficiaries of the scheme under sections 9 and 9B if the FMA is satisfied that—

  • (a) the trustees have not been able to contact all members or beneficiaries of the scheme despite having taken all reasonable steps to do so; and

  • (b) the proposed action is not unreasonable in relation to the best interests of any member or beneficiary who has not been contacted.

  (2) To avoid doubt, any exemption given by the FMA under this section is subject to section 23.

  Section 9BA: inserted, on 3 May 2001, by section 4 of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 9BA heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BA(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 9BA(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

9C Implied provisions as to deferred benefits

• (1) Notwithstanding anything contained in the trust deed of any registered superannuation scheme, there shall be implied in every such trust deed a provision that a beneficiary who continues to be employed by an employer after that beneficiary's expected age or date of retirement (as defined in the trust deed of that registered superannuation scheme) may elect to defer the receipt of any benefit which the beneficiary is eligible to receive under that superannuation scheme until the date upon which the beneficiary ceases to be employed by that employer.

  (2) Nothing in subsection (1) or in the Human Rights Act 1993 has the effect of requiring either an employer or a beneficiary to continue to contribute, or to cease to contribute, to a registered superannuation scheme after the beneficiary's expected age or date of retirement, as defined in the trust deed of that registered superannuation scheme.

  (3) Where a beneficiary has the right, under the provision described in subsection (1), to elect to defer receipt of any benefit which the beneficiary is eligible to receive under the superannuation scheme, the trustees of the scheme shall inform the beneficiary in writing of that right.

  Section 9C: inserted, on 1 April 1992, by section 21 of the Human Rights Commission Amendment Act 1992 (1992 No 16).

  Section 9C(2): amended, on 1 February 1994, pursuant to section 146 of the Human Rights Act 1993 (1993 No 82).

9D Implied term as to reduction of scheme insurance upon transfer out of complying superannuation fund

• (1) This section applies to a registered superannuation scheme (scheme A) if—

  • (a) scheme A provides or facilitates the provision of insurance (the scheme insurance) to a member or other beneficiary (the person); and

  • (b) the benefit of the scheme insurance is calculated by reference to contributions for the person held by a complying superannuation fund (the contributions); and

  • (c) an amount of contributions is transferred out of the complying superannuation fund to a complying superannuation fund or KiwiSaver scheme (other than scheme A).

  (2) A term is implied into the trust deed of scheme A. That term must have the effect of allowing the benefit of the person's scheme insurance to be reduced in proportion to the amount of contributions transferred out of the complying superannuation fund to a complying superannuation fund or KiwiSaver scheme (other than scheme A).

  Section 9D: inserted, on 19 December 2007, by section 107 of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

10 Implied provision as to reversion of scheme assets to employer

• There shall be implied in every trust deed of a registered superannuation scheme that provides for the reversion of any assets of the scheme to any employer, a provision that no part of the assets shall so revert without the prior written consent of the FMA.

  Section 10: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

11 Application and enforcement of implied provisions

• (1) Sections 8 to 10 shall apply notwithstanding anything to the contrary in the trust deed.

  (2) Every provision implied in a trust deed in accordance with sections 8 to 10 shall be enforceable by the trustees or any member of the scheme.

12 Amendment of trust deeds

• (1) The trustees of a registered superannuation scheme shall, before any amendment is made to the trust deed,—

  • (a) give a certificate that the trust deed, when amended as proposed, will comply with section 7, and will not contain any provision that is contrary to those implied by sections 8 to 10; or

  • (b) obtain a certificate to that effect from the administration manager of the scheme or a solicitor.

  (2) Within 14 days after any amendment to the trust deed is made, the trustees shall lodge a copy of that certificate and a copy of the amendment with the FMA.

  Section 12(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

13 Accounts

• (1) The trustees of a registered superannuation scheme shall ensure that—

  • (a) proper books of account are kept in respect of the scheme; and

  • (b) annual accounts in respect of the scheme are prepared in accordance with generally accepted accounting practice (as defined in section 3 of the Financial Reporting Act 1993); and

  • (c) those annual accounts are audited by an auditor.

  (2) The annual accounts in respect of the scheme need not be audited if—

  • (a) the scheme is fully managed by an administration manager that provides to the FMA annual audited accounts in respect of its total business; and

  • (b) that administration manager has prepared annual accounts in respect of the scheme that comply with generally accepted accounting practice (as defined in section 3 of the Financial Reporting Act 1993); and

  • (c) the auditor of the administration manager certifies annually that adequate accounting systems, records, and methods of internal control are in place to ensure that the accounts prepared by the administration manager in respect of each scheme fully managed by the administration manager correctly present each scheme's financial affairs; and

  • (d) the administration manager certifies that the accounts prepared in respect of the scheme correctly present its financial affairs; and

  • (e) the trustees certify that—

    • (i) all of the contributions made to the scheme during the financial year were passed promptly to, and all of the benefits paid during the financial year were paid by, the administration manager of the scheme; and

    • (ii) the trustees hold no funds.

  Section 13(1)(b): substituted, on 3 May 2001, by section 5(1) of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 13(2)(a): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 13(2)(b): substituted, on 3 May 2001, by section 5(2) of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

14 Annual reports

• (1) The trustees of a registered superannuation scheme shall, within 5 months after the end of each financial year, prepare a report on the scheme for that year.

  (2) The annual report shall include the matters specified in Schedule 2.

  (3) The trustees must send to the FMA a copy of the completed report within 28 days after its completion, and, if only abridged accounts are contained in the report, a copy of the annual accounts.

  (4) [Repealed]

  Section 14(1): amended, on 3 May 2001, by section 6(1) of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 14(3): substituted, on 15 April 2004, by section 3 of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 14(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 14(4): repealed, on 1 May 2011, by section 56 of the KiwiSaver Amendment Act 2011 (2011 No 8).

15 Actuarial examination

• (1) If a registered superannuation scheme—

  • (a) operates on the principle of unallocated funding; or

  • (b) provides benefits that are dependent upon the contingencies of human life, and the risks associated with those benefits are not fully insured with a company engaged in the business of life insurance,—

  the trustees shall ensure that an actuary examines the financial position of the scheme as at dates that are no more than 3 years apart.

  (2) The trustees shall ensure that the report of the actuary in respect of each such examination is received no later than 7 months after the date as at which the financial position of the scheme was examined.

  (3) The trustees must send a copy of the report of the actuary to the FMA within 28 days after the date of its receipt by the trustees.

  Section 15(2): amended, on 3 May 2001, by section 7(1) of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 15(3): substituted, on 3 May 2001, by section 7(2) of the Superannuation Schemes Amendment Act 2001 (2001 No 26).

  Section 15(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

15A Prospective members' rights to information

• (1) Each person who is eligible to become a member of a registered superannuation scheme has the right, upon request,—

  • (a) to look at, at any reasonable time, a copy of the trust deed, or a copy of any report of an actuarial examination required under section 15:

  • (b) to receive, upon payment of a reasonable fee, a copy of the trust deed or a copy of any of those reports:

  • (c) to receive a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the value of the assets and liabilities of the scheme for the purposes of an actuarial examination required under section 15:

  • (d) to receive a copy of the annual accounts and any auditor's report or, if that report is not required or produced, the certificates required by section 13(2).

  (2) Nothing in this section limits any provision in the Securities Act 1978.

  Section 15A: inserted, on 15 April 2004, by section 4 of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

16 Rights to information before becoming member of registered superannuation scheme

• (1) Each person, before becoming a member of a registered superannuation scheme, shall—

  • (a) be advised in writing of—

    • (i) the contributions payable:

    • (ii) the charges or fees (if any) that the members may have to pay in addition to contributions:

    • (iii) the member's principal rights and benefits, including rights and benefits upon the scheme being wound up:

    • (iv) any circumstances which it would be reasonable to expect the trustees to foresee in which, given the nature of the scheme, any benefit could be expected to reduce over time:

    • (v) any circumstances which it would be reasonable to expect the trustees to foresee in which, given the nature of the scheme, any member could be expected to receive less from the scheme than the contributions made by the member:

    • (vi) the member's right to request the information required to be supplied by section 17(b):

  • (b) be given a copy of the most recent annual report of the trustees, or, if there is no such report, be advised in writing of—

    • (i) the names of the trustees and any administration manager and every investment manager of the scheme (if any); and

    • (ii) the name and address of the person to whom all correspondence from the members to the trustees should be sent.

  (2) This section does not apply in respect of a person who is provided with an investment statement that relates to the registered superannuation scheme concerned and complies with the Securities Act 1978 and regulations made under that Act before he or she applies for membership of the registered superannuation scheme (whether or not the Securities Act 1978 applies in respect of the registered superannuation scheme).

  Section 16(2): added, on 1 October 1997, by section 2 of the Superannuation Schemes Amendment Act 1996 (1996 No 102).

17 Members' rights to information

• (1) Each member of a registered superannuation scheme shall—

  • (a) be given, within 6 months of the close of each financial year of the scheme, a copy of the annual report of the trustees in respect of that year; and

  • (b) have the right, upon request,—

    • (i) to receive an estimate of the member's benefits:

    • (ii) to look at, at any reasonable time, a copy of the trust deed, or a copy of any report of an actuarial examination required under section 15:

    • (iii) to receive, upon payment of a reasonable fee, a copy of the trust deed or a copy of any such report:

    • (iv) to receive a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the value of the assets and liabilities of the scheme for the purposes of an actuarial examination required under section 15:

    • (v) to receive a copy of the annual accounts and any auditor's report or, if that report is not required or produced, the certificates required by section 13(2).

  (2) Nothing in this section limits sections 54A to 54C or any other provision of the Securities Act 1978.

  (3) Each member of a registered superannuation scheme to which section 15 applies, who is considering a proposed change to the member's benefits, shall have the right, upon request, to receive—

  • (a) a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the benefits under consideration; and

  • (b) where different assumptions and bases of calculation have, within the last 12 months, been applied in determining benefits similar to those under consideration, a statement of the reasons why different assumptions and bases applied.

  (4) For the purposes of subsection (3), a proposed change includes but is not limited to—

  • (a) an election to convert any benefit into a lump sum:

  • (b) an election to defer receipt of a benefit:

  • (c) a change to a benefit regardless of whether or not the benefit is specified in the trust deed of the scheme of which the person is a member:

  • (d) an election to convert all or part of a benefit into a benefit to be provided to some other person:

  • (e) an election to transfer a benefit to another superannuation scheme or from one section of a scheme to another section of the same scheme.

  Section 17(1)(b)(iv): added, on 2 September 1996, by section 2(1) of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 17(1)(b)(v): added, on 15 April 2004, by section 5 of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 17(2): added, on 1 October 1997, by section 3 of the Superannuation Schemes Amendment Act 1996 (1996 No 102).

  Section 17(2): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 17(3): added, on 2 September 1996, by section 2(2) of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 17(4): added, on 2 September 1996, by section 2(2) of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

18 Non-resident trustees

• The trustees of any registered superannuation scheme that is not constituted under an Act of the Parliament of New Zealand shall notify the FMA as soon as practicable after the scheme ceases to have a trustee who is a New Zealand resident.

  Section 18: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

18A Disclosure of information to FMA

• (1) Every person—

  • (a) who holds office as an administration manager, investment manager, actuary, or auditor of a registered superannuation scheme; and

  • (b) who forms an opinion in the course of, or in connection with, the performance of the functions of that office that there is a serious problem with the scheme,—

  shall disclose to the FMA information relating to the affairs of the scheme obtained in the course of holding that office.

  (2) For the purposes of this section, a serious problem means—

  • (a) the scheme is not operating in accordance with this Act, and any regulations made under this Act, or fails to meet any requirements of this Act or any such regulations; or

  • (b) the financial position of the scheme, or the security of benefits, or the management of the scheme, is inadequate; or

  • (c) for a registered scheme approved as a complying superannuation fund for the purposes of the Income Tax Act 2004, the registered scheme no longer meets the requirements in section 35(1)(a) to (c).

  (3) For the avoidance of doubt, subsection (1) does not require any person who holds office as an administration manager, investment manager, actuary, or auditor of a registered superannuation scheme to carry out functions additional to those functions that he or she would ordinarily carry out in the course of holding that office, other than to disclose to the FMA information relating to the affairs of the scheme.

  Compare: Superannuation Industry (Supervision) Act 1993 s 129 (Aust)

  Section 18A: inserted, on 2 September 1996, by section 3 of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 18A heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 18A(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 18A(2)(b): amended, on 18 December 2006, by section 236(a) of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).

  Section 18A(2)(c): added, on 18 December 2006, by section 236(b) of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).

  Section 18A(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

18B Protection of administration managers, investment managers, actuaries, and auditors

• (1) No civil, criminal, or disciplinary proceedings shall lie against any administration manager, investment manager, actuary, or auditor arising from the disclosure in good faith of information to the FMA under section 18A.

  (2) No person shall remove from office, or terminate the contract of appointment of, any administration manager, investment manager, actuary, or auditor by reason of the disclosure in good faith of information to the FMA under section 18A.

  (3) No tribunal, body, or authority, having jurisdiction in respect of the professional conduct of any administration manager, investment manager, actuary, or auditor shall make any order against, or do any act in relation to, that person in respect of the fact of such disclosure.

  (4) No information received by the FMA under section 18A shall be admissible as evidence in any proceedings against the administration manager, investment manager, actuary, or auditor concerned.

  (5) Nothing in subsection (4) shall limit the admissibility of any information obtained in any other way.

  Compare: 1989 No 11 s 15; 1989 No 157 s 98

  Section 18B: inserted, on 2 September 1996, by section 3 of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 18B(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 18B(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 18B(4): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

19 Cancellation of registration

• (1) The FMA may cancel the registration of a superannuation scheme—

  • (a) if a scheme that is not constituted under an Act of Parliament ceases to have a trustee who is a New Zealand resident; or

  • (b) if the FMA is satisfied on reasonable grounds that the scheme is no longer a superannuation scheme within the meaning of section 2 and the FMA has given not less than 28 days' notice in writing to the trustees.

  (2) The FMA must cancel the registration of a superannuation scheme on receipt of an application by the trustees if the FMA is satisfied that the members and other beneficiaries of the scheme have been advised of the consequences of the scheme ceasing to be registered.

  (3) Where the registration of a scheme is cancelled, each provision set out in sections 8 to 10 continues to be implied in the trust deed of the scheme unless—

  • (a) evidence has been produced to the FMA to its satisfaction that all of the members and other beneficiaries of the scheme have consented to the provision no longer applying; or

  • (b) in any other case, the FMA has notified the trustees in writing that it is satisfied that the provision is no longer necessary.

  Section 19: substituted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

20 Powers of FMA in event of scheme operating in contravention of this Act, etc

• (1) If, in respect of any registered superannuation scheme, the FMA has reasonable cause to believe that—

  • (a) the scheme is not operating in accordance with this Act, and any regulations made under this Act, or fails to meet any requirements of this Act or any such regulations; or

  • (b) the financial position of the scheme, or the security of benefits, or the management of the scheme, is inadequate,—

  the FMA may direct the trustees to supply all members of the scheme with such information as the FMA may specify, and may, upon giving 28 days' notice in writing to the trustees,—

  • (c) cancel the registration of the scheme; or

  • (d) direct the trustees or the administration manager or the investment manager, as the case may be, to operate the scheme in a specified manner; or

  • (e) order that the scheme be wound up.

  (2) The FMA must not give a direction under subsection (1)(d) if the operation of the scheme in accordance with the direction would be contrary to the provisions of the trust deed or, in relation to a superannuation scheme constituted under an Act of the Parliament of New Zealand, the provisions of the documents governing the scheme.

  (3) If the FMA has reasonable cause to believe that any registered superannuation scheme has no members or other beneficiaries, the FMA may, upon giving 28 days' notice in writing to the trustees,—

  • (a) cancel the registration of the scheme; or

  • (b) order that the scheme be wound up.

  Section 20 heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 20(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 20(2): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 20(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

20A Receiver or liquidator to designate or appoint independent trustee if required

• (1) This section applies if a receiver has been appointed in respect of property of an employer or if a liquidator has been appointed for the employer and either—

  • (a) the receiver or liquidator is designated or appointed as a trustee of a relevant superannuation scheme; or

  • (b) before the appointment of the receiver or liquidator, the employer had the power to appoint a trustee of a relevant superannuation scheme.

  (1A) The receiver or liquidator must be satisfied that, at all times, at least 1 of the trustees of the relevant superannuation scheme is an independent person and, if the receiver or liquidator is not so satisfied, designate or appoint an independent person as trustee of the scheme.

  (1B) For the purposes of this section, a relevant superannuation scheme is one—

  • (a) to which the employer has contributed in respect of the employees of the employer who are members of the scheme; or

  • (b) for which the employer has paid any of the administration costs in respect of the employees of the employer who are members of the scheme.

  (2) For the purposes of this section, an independent person is a person who—

  • (a) has no interest in the assets of the employer or of the scheme, otherwise than as a trustee of the scheme; and

  • (b) is not associated with, or employed by, the employer, the receiver, or the liquidator.

  (3) Any independent person designated or appointed under this section as a trustee of the scheme—

  • (a) shall hold office as if he or she was designated or appointed under the trust deed of the scheme; and

  • (b) is entitled to be paid out of the assets of the scheme, reasonable remuneration for, and any expenses reasonably incurred by that person in, acting in his or her capacity as a trustee of the scheme.

  Compare: Pensions Act 1995 ss 23, 25 (UK)

  Section 20A: inserted, on 2 September 1996, by section 4 of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 20A(1): substituted, on 15 April 2004, by section 6(1) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 20A(1A): inserted, on 15 April 2004, by section 6(1) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 20A(1B): inserted, on 15 April 2004, by section 6(1) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 20A(2): amended, on 15 April 2004, by section 6(2) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

21 Winding up of registered schemes

• (1) Where a registered superannuation scheme is wound up, the trustees—

  • (a) shall, within 14 days after a winding up resolution is made, lodge a copy of that resolution with the FMA:

  • (b) must, within 5 months of the date on which the winding up takes effect, ensure that final accounts of the scheme, showing the financial position of the scheme as at the date on which the winding up takes effect, are prepared:

  • (c) must, within 5 months of the date on which the winding up takes effect, ensure that those final accounts are audited or, in an appropriate case, that the requisite certificates in respect of those accounts are provided in accordance with section 13(2):

  • (d) must, within 28 days after the final accounts have been audited or those certificates have been provided,—

    • (i) send a copy of those accounts to the FMA and to every person who was a member of the scheme immediately before it was wound up; and

    • (ii) advise the FMA and the members in writing as to the manner in which the assets of the scheme are to be distributed:

  • (e) shall inform the FMA of the date on which the distribution of the assets is completed.

  (1A) The FMA may, by notice in writing to the trustees, extend the time period within which the trustees must comply with any of the requirements set out in subsection (1)(b) to (d).

  (2) Each person who was a member of a registered superannuation scheme immediately before its winding up shall continue to have the right, upon request,—

  • (a) to look at, at any reasonable time, a copy of the trust deed, or a copy of any report of an actuarial examination required under section 15:

  • (b) to receive, upon payment of a reasonable fee, a copy of the trust deed or of any such report:

  • (c) to receive a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the value of the assets and liabilities of the scheme for the purposes of an actuarial examination required under section 15:

  • (d) to receive a statement of the specific interest, mortality, and other assumptions and bases of calculation applied in determining the person's benefits.

  (3) Where a scheme is wound up, the registration shall be deemed to be cancelled as soon as the distribution of assets has been completed.

  Section 21(1)(a): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 21(1)(b): amended, on 15 April 2004, by section 7(1) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 21(1)(c): amended, on 15 April 2004, by section 7(2) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 21(1)(d): amended, on 15 April 2004, by section 7(3) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 21(1)(d)(i): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 21(1)(d)(ii): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 21(1)(e): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 21(1A): inserted, on 15 April 2004, by section 7(4) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 21(1A): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 21(2)(c): added, on 2 September 1996, by section 5 of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

  Section 21(2)(d): added, on 2 September 1996, by section 5 of the Superannuation Schemes Amendment Act (No 2) 1996 (1996 No 147).

22 Consent to reversion of assets to employer

• (1) The FMA must not give consent to the reversion of any assets of a superannuation scheme to any employer unless satisfied—

  • (a) that sufficient assets would remain to support the accrued benefits of all members and other beneficiaries; and

  • (b) that the reversion is fair and equitable to the members and other beneficiaries, taking into account the manner in which the scheme acquired those assets.

  (2) For the purposes of subsection (1), accrued benefits means the benefits, whether vested, contingent, or discretionary, which the FMA considers to be attributable to membership of the scheme up to the date of the reversion.

  Section 22(1): amended, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 22(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

23 Right of appeal against certain decisions of FMA

• (1) A person affected by a decision of the FMA under any of the following provisions may appeal against the decision to the High Court:

  • (a) section 19 (cancellation of registration):

  • (b) section 20 (powers of FMA if scheme is operating in contravention of this Act):

  • (c) section 34 (approval of scheme as complying superannuation fund):

  • (d) section 36 (revocation of approval of scheme as complying superannuation fund):

  • (e) section EY 11 of the Income Tax Act 2007 (certain superannuation schemes exempted from being treated as schemes providing life insurance).

  (2) A decision against which an appeal is lodged under this section continues in force unless the High Court orders otherwise.

  Section 23: substituted, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

24 Power of Government Actuary to require information

• [Repealed]

  Section 24: repealed, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

25 Offences

• (1) Every person commits an offence against this Act, and is liable on conviction to a fine not exceeding $500, who refuses or fails—

  • (a) to deliver any document or statement or report or copy or certificate; or

  • (ab) to allow a person to look at a document or report or copy; or

  • (b) to supply any return or to give any certificate or information,—

  as and when required by this Act or any regulations made under this Act.

  (1A) For the purposes of sections 15A, 16, 17, and 21(2),—

  • (a) requests must be made to the trustees of the registered superannuation scheme to which the request relates; and

  • (b) if a person has a right to look at a document, report, or copy, the trustees of the registered superannuation scheme to which the document, report, or copy relates have a duty to ensure that the person is allowed to look at, at any reasonable time, that document, report, or copy; and

  • (c) if a person has a right to receive a document, statement, report, copy, certificate, or information, the trustees of the registered superannuation scheme to which the document, statement, report, copy, certificate, or information relates have a duty to ensure that the document, statement, report, copy, certificate, or information is delivered or supplied to the person; and

  • (d) if a person has a right to be advised of certain information, the trustees of the registered superannuation scheme to which the information relates have a duty to ensure that the information is supplied to the person.

  (2) Every person commits an offence, and is liable on summary conviction to a fine not exceeding $1,000, who—

  • (a) refuses or fails to carry out any direction or order of the FMA made under section 20; or

  • (ab) fails to designate or appoint an independent trustee, if required to do so under section 20A(1A), within 28 days of failing to be satisfied of the matters set out in that subsection; or

  • (b) makes any statement or supplies any report or certificate required by this Act knowing that it is false or misleading; or

  • (c) advertises or otherwise promotes, or describes in a written form, a registered superannuation scheme as a unit trust.

  (3) Where any company commits an offence against this Act, every officer of the company who knowingly authorises or permits the offence also commits an offence against this Act.

  Section 25(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

  Section 25(1)(ab): inserted, on 15 April 2004, by section 8(1) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 25(1A): inserted, on 15 April 2004, by section 8(2) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

  Section 25(2)(a): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 25(2)(ab): inserted, on 15 April 2004, by section 8(3) of the Superannuation Schemes Amendment Act 2004 (2004 No 33).

26 Secrecy

• [Repealed]

  Section 26: repealed, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

27 Personal liability

• [Repealed]

  Section 27: repealed, on 1 May 2011, by section 82 of the Financial Markets Authority Act 2011 (2011 No 5).

28 Annual report by FMA

• (1) The FMA must, within 3 months after the end of every financial year, report to the responsible Minister on the principal matters transacted under this Act during that year.

  (2) Every report must be presented to the House of Representatives by the responsible Minister as soon as practicable after it has been received by that Minister.

  (3) In this section, responsible Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act.

  Section 28: substituted, on 3 June 1998, by section 2 of the Superannuation Schemes Amendment Act 1998 (1998 No 62).

  Section 28 heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 28(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

29 Fees

• Where any fee is payable in accordance with any regulations made under this Act, the FMA may decline to take any action in respect of the matter for which the fee is payable, or decline to accept the document to which the fee relates, unless the fee, or an estimate of the fee, has been paid.

  Section 29: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

30 Regulations

• The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

  • (a) prescribing the fees payable, or the rate at which fees are to be calculated, for applications for registration of schemes, for the lodging of amendments to schemes, for applications under section EY 11 of the Income Tax Act 2007, and for the making of statements, requests, returns, certificates, reports, applications and the giving of notices required under this Act, or any regulations made under this Act:

  • (b) providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and the full administration thereof.

  Section 30(a): amended, on 1 April 2008 (effective for 2008–09 income year and later income years, except when the context requires otherwise), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

  Section 30(a): amended, on 1 August 1990, by section 3 of the Superannuation Amendment Act 1990 (1990 No 67).

31 Consequential amendments

• (1) The enactments specified in Schedule 3 are hereby consequentially amended in the manner indicated in that schedule.

  (2) The Reserve Bank of New Zealand Amendment Act 1975 is hereby consequentially repealed.

32 Repeals, revocations, and consequential amendments taking effect on 1 April 1990

• (1) The following enactments are hereby repealed as from the commencement of 1 April 1990:

  • (a) the Superannuation Schemes Act 1976:

  • (b) the Superannuation Schemes Amendment Act 1982:

  • (c) the Superannuation Schemes Amendment Act (No 2) 1982:

  • (d) the Superannuation Schemes Amendment Act 1987.

  (2) The following regulations are hereby revoked as from the commencement of 1 April 1990:

  • (a) the Superannuation Schemes Regulations 1983 (SR 1983/34):

  • (b) the Superannuation Schemes Regulations 1983, Amendment No 1 (SR 1984/65):

  • (c) the Superannuation Schemes Regulations 1983, Amendment No 2 (SR 1987/59).

  (3) The enactments specified in Schedule 4 are hereby consequentially amended in the manner indicated in that schedule as from the commencement of 1 April 1990.

33 Savings

• Notwithstanding the repeal of the Superannuation Schemes Act 1976 (as amended by the Superannuation Schemes Amendment Act 1987) by section 32 of this Act, all superannuation annuities, superannuation allowances, annuities, amounts, expenses, and refunds that are payable out of the Consolidated Account under sections 5A(2), 6(4), and 7(6) of that Act (which relate to certain payments out of the Consolidated Account as a result of the dissolution of the New Zealand Superannuation Corporation and the New Zealand Superannuation Scheme) shall continue to be so payable as if those sections and section 5A(3) of that Act had not been repealed.

34 Complying superannuation funds

• (1) A person may apply to the FMA for approval of a registered scheme as a complying superannuation fund for the purposes of the Income Tax Act 2004.

  (2) The application must be accompanied by all information necessary to satisfy the FMA of the matters referred to in section 35.

  (3) The application must include a copy of any participation agreements that have been ratified by employers of employees in the scheme as applicable to the registered scheme.

  Section 34: inserted, on 18 December 2006, by section 237 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).

  Section 34(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 34(2): substituted (with effect on 1 April 2007), on 19 December 2007, by section 108(1) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 34(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 34(3): added, on 19 December 2007, by section 108(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

35 Dealing with applications for complying superannuation funds

• (1) The FMA must complete consideration of whether or not the relevant registered scheme is approved as a complying superannuation fund, within 28 days after receiving an application from a person under section 34 and the relevant information required to accompany the application. The FMA must approve a registered scheme if—

  • (a) the registered scheme and any relevant participation agreement contain rules that subject the following to complying fund rules:

    • (i) relevant contributions:

    • (ii) returns on relevant contributions:

    • (iii) relevant benefits; and

  • (b) [Repealed]

  • (c) the registered scheme has at least 20 members, treating all interests in the registered scheme or account held by persons associated under section OD 8(3) of the Income Tax Act 2004 as being held by 1 person; and

  • (d) the registered scheme is registered on or before 1 July 2007; and

  • (e) any relevant participation agreement is—

    • (i) an agreement entered into on or before 1 July 2007:

    • (ii) an agreement (the successor participation agreement) entered into after 1 July 2007, if it succeeds and replaces a participation agreement (the prior agreement) entered into on or before 1 July 2007 or entered into after 1 July 2007 as a successor participation agreement for an earlier prior agreement.

  (2) The FMA must notify the person whether or not the relevant registered scheme is approved as a complying superannuation fund for the purposes of the Income Tax Act 2004 as soon as practicable after completing consideration under subsection (1).

  (3) If the relevant registered scheme is approved as a complying superannuation fund for the purposes of the Income Tax Act 2004, the FMA must notify the Commissioner of Inland Revenue of that approval, at the same time as giving notice under subsection (2).

  (4) Approval notified under subsections (2) and (3) is effective on and after the date the FMA must complete consideration under subsection (1), or earlier, if consideration is completed earlier. The notices must contain the date on and after which approval is effective, under this subsection.

  (5) For the purposes of subsection (1)(e),—

  • (a) participation agreement includes a trust deed:

  • (b) a participation agreement (agreement A) succeeds and replaces another participation agreement if—

    • (i) agreement A succeeds and replaces the other participation agreement due to the merger or acquisition of a party to the other participation agreement; or

    • (ii) all relevant members of a scheme covered by agreement A transfer by virtue of section 9BAA of the Superannuation Schemes Act 1989 to a scheme covered by the other participation agreement.

  Section 35: inserted, on 18 December 2006, by section 237 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).

  Section 35(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 35(1)(a): substituted, on 21 May 2007, by section 71(1) of the Taxation (KiwiSaver and Company Tax Rate Amendments) Act 2007 (2007 No 19).

  Section 35(1)(a): amended (with effect on 1 July 2007), on 19 December 2007, by section 109(1) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 35(1)(b): repealed, on 21 May 2007, by section 71(1) of the Taxation (KiwiSaver and Company Tax Rate Amendments) Act 2007 (2007 No 19).

  Section 35(1)(e): substituted (with effect on 1 July 2007), on 19 December 2007, by section 109(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 35(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 35(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 35(4): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 35(5): added (with effect on 1 July 2007), on 19 December 2007, by section 109(3) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

36 Revocation of approval

• (1) If the FMA has reasonable cause to believe that a registered scheme that is approved as a complying superannuation fund no longer meets the requirements in section 35(1)(a) to (c), or has failed to specify in an annual report the information required by schedule 2, item (o), the FMA may revoke that approval immediately.

  (2) The FMA must, as soon as practicable after revoking approval under subsection (1), notify that revocation to—

  • (a) the registered scheme; and

  • (b) the person that originally applied for approval under section 34; and

  • (c) the Commissioner of Inland Revenue.

  (3) Revocation notified under subsection (2) is effective on and after the date the FMA revokes approval under subsection (1). The notices must contain the date on and after which approval is revoked, under this subsection.

  (4) A registered scheme that is notified that approval is revoked must immediately notify that revocation to each member who may be affected, and to their employers. At the same time, the registered scheme must notify the Commissioner of each member who may be affected, and of their employers.

  Section 36: inserted, on 18 December 2006, by section 237 of the Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 (2006 No 81).

  Section 36(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 36(2): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 36(3): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

37 Duty to notify changes about complying superannuation funds to FMA

• (1) The trustees of a complying superannuation fund must give notice to the FMA of any changes to—

  • (a) any of the information referred to in section 161(1B) of the KiwiSaver Act 2006; or

  • (b) any information required to be contained in the register under section 161(2) of that Act.

  (2) This section does not apply if the change has been notified in an annual report sent or delivered under section 14 before the notice is required to be given under this section.

  Compare: 2006 No 40 s 164

  Section 37: inserted, on 1 April 2008, by section 110(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 37 heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 37(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

38 Form of notice under section 37

• (1) A notice under section 37 must—

  • (a) be in the prescribed form (if any); and

  • (b) contain, or be accompanied by, any other prescribed information or documentation; and

  • (c) specify the effective date of the change; and

  • (d) be given to the FMA within 3 months of the later of—

    • (i) the effective date of the change; or

    • (ii) the trustees of the complying superannuation fund first becoming aware of the change.

  (2) References in this section to a prescribed form, or to prescribed information or documentation, are references—

  • (a) to matters prescribed under section 30(b); or

  • (b) if the matter is not prescribed under that section, to the equivalent matter prescribed under section 228(b) of the KiwiSaver Act 2006 in respect of notices under section 164 of that Act, with all necessary modifications.

  Compare: 2006 No 40 s 165

  Section 38: inserted, on 1 April 2008, by section 110(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 38(1)(d): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

39 Duty to give notice to FMA about fee increases

• Any person referred to in clause 2 of the KiwiSaver scheme rules who increases a fee to which that clause applies in relation to a complying superannuation fund must give notice of the increase to the FMA as soon as reasonably practicable after the increase takes effect.

  Section 39: inserted, on 1 April 2008, by section 110(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 39 heading: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 39: amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

40 Powers of High Court in relation to unreasonable fees

• (1) If the High Court is satisfied, on the application of a member or the FMA, that any of the persons referred to in section 39 have charged a fee in relation to a complying superannuation fund that is unreasonable, it may order that the fee be annulled or reduced.

  (2) The High Court may make any other order it thinks fit for the purpose of giving effect to an order under subsection (1).

  (3) An application for an order may be made within 1 year of the day that the fee is imposed or debited.

  (4) In determining whether a fee is unreasonable for the purposes of this section, the High Court—

  • (a) must have regard to any prescribed matter under the KiwiSaver Act 2006; and

  • (b) may, to the extent it thinks fit, have regard to any guidelines published by the FMA under section 127 of that Act; and

  • (c) may have regard to any other matter it thinks fit.

  (5) This section does not limit section 20 and, to avoid doubt, a breach of clause 2 of the KiwiSaver scheme rules as applied by the complying fund rules is a breach of this Act.

  Section 40: inserted, on 1 April 2008, by section 110(2) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

  Section 40(1): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

  Section 40(4)(b): amended, on 1 May 2011, by section 85(1) of the Financial Markets Authority Act 2011 (2011 No 5).

41 Transitional provision relating to lodging of participation agreements

• The trustees of every scheme that has been approved as a complying superannuation fund before the date of commencement of this section must send to the Government Actuary, within 28 days after that commencement date, a copy of any participation agreements that have been ratified by employers of employees in the scheme as applicable to the complying superannuation fund.

  Section 41: inserted, on 19 December 2007, by section 110(1) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

42 Uniform reduction in existing pensions may be regarded as equitable

[Repealed]

• [Repealed]

  Section 42: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

43 Uniform reduction in existing and future pensions may be regarded as equitable

• [Repealed]

  Section 43: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

44 Notification of amendments made in accordance with this Part

• [Repealed]

  Section 44: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

45 Amendment to become valid on date made

• [Repealed]

  Section 45: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

45A Reduction of benefits where employer obliged to provide defined benefit

• [Repealed]

  Section 45A: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

46 Amendment to provide for variations as result of later taxation changes

• [Repealed]

  Section 46: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

47 No reductions to be made except to make benefits secure

• [Repealed]

  Section 47: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

48 Closing date for applications for approval

• [Repealed]

  Section 48: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

49 Registration of approved schemes

• [Repealed]

  Section 49: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

50 Effect of cancellation of approval

• [Repealed]

  Section 50: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

51 Application to cancel approval of scheme that is not to become registered

• [Repealed]

  Section 51: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

52 Cancellation of approval of certain overseas schemes

• [Repealed]

  Section 52: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

53 Position of schemes that are still approved as at 31 March 1990

• [Repealed]

  Section 53: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

54 Position where 2 or more approved schemes share trust deed

• [Repealed]

  Section 54: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

55 Certain provisions in trust deed obsolete

• (1) This section applies to a registered superannuation scheme which before its registration was an approved New Zealand scheme.

  (2) Where the trust deed of a scheme to which this section applies contains a provision to the effect that—

  • (a) no amendment of the trust deed shall be made until the Government Actuary has notified the trustees that the amendment will not affect the approval of the scheme; or

  • (b) no amendment of the scheme shall take effect until the Government Actuary has approved the amendment,—

  that provision shall be of no effect and shall be deemed to have been omitted from the trust deed.

56 Certain references to approved schemes deemed to include references to registered schemes

• Any provision in a trust deed of a superannuation scheme, or, in relation to a superannuation scheme constituted under an Act of the Parliament of New Zealand, in the documents governing the scheme, that provides for the transfer of any amount to another approved superannuation scheme shall be read and construed as if it also provided for the transfer of that amount to any registered superannuation scheme.

57 Effect of new withholding tax on contributions to Class A funds

• [Repealed]

  Section 57: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

58 Interpretation

• [Repealed]

  Section 58: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

59 Reduction of annuities granted before 1 April 1990

• [Repealed]

  Section 59: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

60 Approval of Government Actuary needed if reduction in net benefits

• [Repealed]

  Section 60: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

61 Other powers to reduce benefits not affected

• [Repealed]

  Section 61: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

62 Non-commutable and non-assignable annuities

• [Repealed]

  Section 62: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

63 Objections and appeals against decisions of Government Actuary

• [Repealed]

  Section 63: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

64 Power of Government Actuary to require information

• [Repealed]

  Section 64: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

65 Personal liability

• [Repealed]

  Section 65: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

66 Fees

• [Repealed]

  Section 66: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

67 Regulations

• [Repealed]

  Section 67: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

68 Application for approval of transfer of superannuation business

• [Repealed]

  Section 68: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

69 Approval of transfer arrangement by Government Actuary

• [Repealed]

  Section 69: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

70 Transfer of property pursuant to approved arrangement

• [Repealed]

  Section 70: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).

71 Liability to stamp duty, goods and services tax, and income tax in respect of transfer of property

• [Repealed]

  Section 71: repealed (with effect on 1 October 1992), on 18 December 1992, by section 3(1) of the Superannuation Schemes Amendment Act 1992 (1992 No 131).