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New Zealand Securities Commission |
Last Updated: 17 November 2014
Offering securities in New Zealand and Australia under mutual
recognition
March 2011
About this guide
This is a guide for New Zealand and Australian issuers offering securities or
interests in managed or collective investment schemes
in both countries. It
explains what issuers have to do under the trans-Tasman mutual recognition
scheme for offers of securities.
This is a joint guide published by the Australian Securities and Investments Commission
(ASIC) and the New Zealand Securities Commission (NZSC).
Document history
This version was issued on 17 March 2011 and is based on legislation and regulations as at
17 March 2011.
Previous versions:
• Offering securities in New Zealand and Australia under mutual recognition, issued
13 June 2008, reissued 21 January 2009.
Disclaimer
This guide does not constitute legal advice. We encourage you to seek your
own professional advice to find out how the Australian
Corporations Act 2001
or the New Zealand Securities Act 1978 and other applicable laws
apply to you, as it is your responsibility to determine your
obligations.
Examples in this guide are purely for illustration; they are not exhaustive
and are not intended to impose or imply particular rules
or
requirements.
SECURITIES COMMISSION
Level 8, Unisys House
56 The Terrace
PO Box 1179
WELLINGTON
Ph 64-4-472 9830
Fax 64-4-472 8076
E mail seccom@seccom.govt.nz
ISBN 978-0-478-36518-4 (pdf)
TABLE OF CONTENTS
A. OVERVIEW ....................................................................................................... 1
The mutual recognition scheme .......................................................................................... 1
Requirements for issuers ..................................................................................................... 2
Role of
regulators .......................................................................................................
3
B. WHAT MUST NEW ZEALAND ISSUERS DO? ......................................................... 4
Before making an offer (entry requirements)...................................................................... 4
While the offer is open (ongoing requirements) ................................................................. 6
Complying with the dispute resolution condition (ongoing requirements) ........................ 7
Ongoing notification requirements (New Zealand issuers) ................................................ 8
What happens if an offering condition is breached? ......................................................... 10
What other Australian securities laws apply to a recognised offer?
................................. 10
C. WHAT MUST AUSTRALIAN ISSUERS DO?........................................................... 11
Before making an offer (entry requirements).................................................................... 11
While the offer is open (ongoing requirements) ............................................................... 14
Availability of dispute resolution in New Zealand (ongoing requirements)..................... 15
Ongoing notification requirements (Australian issuers) ................................................... 15
What happens if an offering condition is breached? ......................................................... 16
What other New Zealand securities laws apply to a regulated offer?
............................... 17
D. HOW WILL ASIC, THE NZCO AND NZSC WORK TOGETHER? ..................... 18
KEY TERMS ..................................................................................................... 19
RELATED INFORMATION................................................................................................ 20
A. OVERVIEW
Key points
1. The trans-Tasman mutual recognition scheme allows an issuer to
offer securities or interests in collective or managed investment
schemes in
Australia and New Zealand using one disclosure document prepared under
regulation in its home country.
2. Issuers who wish to operate under the scheme will be able to
comply with minimal entry and ongoing requirements agreed
to between the two
countries and prescribed in each country’s law.
3. The Australian Securities and Investments Commission (ASIC), the
New Zealand Companies Office (NZCO) and the New Zealand
Securities
Commission(NZSC) have established processes for cooperation between the
authorities in administering the mutual recognition
scheme
The mutual recognition scheme
4. The trans-Tasman mutual recognition scheme for offers of
securities promotes investment between Australia and
New Zealand. It allows an
issuer to offer securities or interests in managed or collective investment
schemes in both countries using
one disclosure document prepared under the
fundraising laws in its home country.
5. The aim of the scheme is to remove unnecessary
regulatory barriers to trans-Tasman securities offerings
and reduce costs of
capital raising in both Australia and New Zealand. At the same time the scheme
maintains investor protection
through appropriate disclosure and supervision of
offerings.
6. The mutual recognition scheme is contained in the following law:
(a) for New Zealand issuers wishing to extend an offer into the
Australian market (a ‘recognised offer’)—Ch
8 of the
Corporations Act 2001 (Australian Corporations Act) and the Corporations
Regulations 2001 (Australian corporations regulations) (collectively, the
Australian securities law); and
(b) for Australian issuers wishing to extend an offer into the New
Zealand market (a ‘regulated offer’)—Part
5 of the
Securities Act 1978 (NZ Securities Act), and the Securities Regulations
2009 (NZ regulations 2009)(collectively, on NZ securities law), and the
Securities (Mutual Recognition of Securities Offerings—Australia)
Regulations 2008 (NZ mutual recognition regulations).
7. To help Australian and New Zealand issuers who wish to participate
in the scheme, the NZSC and ASIC have issued this joint
regulatory guide
highlighting the key features of each country’s securities offering regime
and key requirements under the
scheme.
Note: For the purposes of this regulatory guide, we have used the term ‘issuer’ throughout to describe all offerors or issuers that may be entitled to participate in the mutual recognition scheme. Despite the use of the term ‘issuer’ this guidance is intended to apply to offers for sale that are covered by the mutual recognition scheme.
Requirements for issuers
8. Under the mutual recognition scheme, issuers are not required to
comply with most of the requirements of the other country’s
fundraising
laws. Instead, issuers who wish to operate under the scheme are be able to
comply with some minimal entry and ongoing
requirements: see Table 1 and Section
B (for New Zealand issuers) and Section C (for Australian
issuers).
Table 1:Requirements for issuers under the mutual recognition
scheme
|
New Zealand issuers
|
Australian issuers
|
Entry requirements (before making an offer)
|
The offer must require disclosure under Part 2 of the NZ Securities Act
(Australian corporations regulations, reg
8.2.01).
|
The offer must require disclosure under the Australian Corporations Act (NZ
mutual recognition regulations, reg 4).
|
The issuer must be incorporated under the law of New Zealand and not be
disqualified or banned.
|
The issuer must be incorporated by/under the law of Australia, or be a
registered foreign company under the Australian Corporations Act, and not be
disqualified or banned.
|
|
The offer can apply to shares, debentures and interests in managed
investment schemes, and certain rights, interests and options in
these financial
products under s1200A of the Australian Corporations Act.
|
The offer can apply to equity or debt securities, interests in collective
investment schemes, and any interest in, or option to acquire,
these securities
under reg 4 of the NZ mutual recognition regulations.
|
|
The issuer must lodge with ASIC a written notice of the intention to make
the offer, including an offer document that is accompanied
by a warning
statement (Australian Corporations Act, s1200C(5)). The issuer must also notify
the NZCO (NZ mutual recognition regulations, reg 15).
See also paragraphs 20–24.
|
The issuer must lodge with the NZCO a written notice of the intention to
make the offer, including an offer document that is accompanied
by a warning
statement (NZ mutual recognition regulations, reg 11). The issuer must also
notify ASIC (Australian Corporations Act, s1200S).
See also paragraphs 42–46.
|
|
Ongoing requirements (while the offer is open
from commencement of the offer)
|
Issuers must comply with specific ongoing conditions, which include
ensuring that the offer remains open to investors in the home
jurisdiction and
notifying the relevant regulator in the country in which the foreign offer of
securities is being made of certain
circumstances: see Table 2–Table 3
(for New Zealand issuers) and Table 4–Table 5 (for Australian
issuers).
|
Role of regulators
9. In Australia, ASIC is the regulator for offers of securities, and
investigates suspected contraventions of Australian law.
10. In New Zealand, there are two regulators for securities
offers. The NZSC is responsible for market conduct
and has enforcement
powers to require offer documents and advertisements to comply with New
Zealand law. The NZCO is responsible
for the registration of corporate bodies
and corporate documents, which includes registration of prospectuses for offers
of securities
in New Zealand.
11. Under the mutual recognition scheme, ASIC, the NZSC and the NZCO will exercise their usual powers for offers of securities. ASIC, the NZSC and the NZCO have also established arrangements for cooperation and information sharing in administering the mutual recognition scheme: see Section D.
B. WHAT MUST NEW ZEALAND ISSUERS DO?
Key points
12. A New Zealand issuer who wants to offer securities to Australian
investors under the mutual recognition scheme must:
(a) be entitled under the NZ securities law to offer the securities (i.e. the offer must require disclosure under Part 2 of the NZ Securities Act); and
(b) comply with all applicable New Zealand laws.
13. The issuer must also comply with specified requirements for
offering securities into Australia, including lodging a notice
with ASIC and
ensuring that the offer document is accompanied by a warning statement.
14. While the offer remains open to Australian investors, the New
Zealand issuer must comply with the offering conditions, including
ensuring that
the offer remains open to New Zealand investors and notifying ASIC of certain
circumstances.
Before making an offer (entry requirements)
What is a ‘recognised offer’?
15. An offer of securities by a New Zealand issuer into the Australian market under the mutual recognition scheme is called a ‘recognised offer’. To be a recognised offer, the offer must require disclosure under Part 2 of the NZ Securities Act.
16. ASIC considers that an offer in respect of which the NZSC exempts
the person from compliance with Part 2 in its entirety,
as opposed to a partial
exemption, is not a recognised offer.
Who can make an offer?
17. The issuer must be incorporated under the law of New Zealand or be
a natural person resident in New Zealand or be a legal
person established under
the law in New Zealand. An entity that is registered as an overseas company
under New Zealand law will not
be able to opt into this scheme.
18. The New Zealand issuer or any person concerned in the management of the issuer must not be:
(a) disqualified from being concerned in the management of the issuer under New
Zealand law;
(b) disqualified from managing corporations under Part 2D.6 of the
Australian Corporations Act (e.g. as an undischarged bankrupt or having been
convicted of certain offences);
(c) banned by ASIC from providing financial services (e.g. because the
person has not complied with the law, become insolvent
or committed a fraud) or
disqualified by a court under the Australian Corporations Act; or
(d) previously banned by ASIC from making a recognised offer in the
future under s1200P of the Australian Corporations Act.
Note: See Australian Corporations Act, s1200G(6).
What securities can be offered in Australia?
19. The mutual recognition scheme applies to shares, debentures and
interests in managed investment schemes, and certain
rights, interests and
options in these financial products: Australian Corporations Act,
s1200A.
What must be lodged with the NZCO?
20. If a New Zealand issuer proposes to make an offer of securities in
Australia, the New Zealand issuer must lodge with the
NZCO written notice of its
intention to make the offer under the mutual recognition scheme. This
notification must be no later than
the time ASIC is notified of the New Zealand
issuer’s intention: see paragraphs 22–24.
Note: See notification forms are available on the NZCO website at www.business.govt.nz/companies/learn-about/other-entities/more-entities/overseas-
issuers/mrso/mrso-forms/.
Northern Business Centre
Private Bag 92061
Victoria Street West
Auckland 1142
NEW ZEALAND
What must be lodged with ASIC?
22. At least 14 days before the day on which the offer is first made in Australia, and no later than the time the NZCO is notified, the New Zealand issuer must lodge with ASIC a written notice of the intention to make the offer, together with:
(a) any offer document required by the NZ securities law (e.g. a
prospectus and an investment statement);
(b) the constituent documents of the New Zealand issuer or the scheme constitution;
(c) details of any exemption from the NZ securities law that applies to the offer;
including:
(i) details of any general exemption that applies to the offer or to the
offeror in relation to the offer; and
(ii) a copy of any specific exemption that applies to the offer or to
the offeror; and
(d) an address for service in Australia.
Note: See Australian Corporations Act, s1200D. As at the date of this guide,
there is no prescribed form for the purposes of s1200C(5) of the Australian
Corporations Act. Unless a form is prescribed, the written notice can be
provided in a covering letter accompanying the documents required under
s1200D.
23. The offer document must be accompanied by a prescribed warning statement that the offer is regulated under the NZ securities law and that Australian law does not apply to the offer, along with certain prescribed warnings about tax differences and any currency risk: Australian Corporations Act, s1200E and Australian corporations regulations, regs 8.2.02–8.2.03.
Australian Securities and Investments Commission
GPO Box 9827
Sydney NSW 2001
AUSTRALIA
ASIC's power to declare an offer a 'recognised offer'
25. If a New Zealand issuer's offer would be a recognised offer except
for a failure to meet the conditions in s1200C(5) and
1200C(6) of the Australian
Corporations Act and ASIC is satisfied that the failure is minor or technical,
ASIC may declare in writing that the offer is a recognised offer: Australian
Corporations Act, s1200B(3). ASIC does not have a general exemption or
modification power in respect of Ch.8 of the Australian Corporations
Act.
Note: See ASIC’s Regulatory Guide 51 Applications for relief
(RG 51) for information relating to applying to ASIC for relief including
declarations under s1200B(3) of the Australian Corporations Act.
While the offer is open (ongoing requirements)
26. At all times while the offer remains open to Australian investors, the New Zealand issuer must comply with the offering conditions (see Table 2), which include ensuring that the offer remains open to New Zealand investors and notifying ASIC of certain circumstances (see Table 3).
Table 2: Offering conditions for New Zealand
issuers
The offer
|
At all times while the offer is open to Australian investors, the offer
must:
remain a recognised offer in New Zealand (Australian corporations
regulations, reg 8.2.01);
comply with the NZ securities law (Australian Corporations Act,
s1200G(5)); and
be open to acceptance by persons in New Zealand (Australian
|
The issuer
|
At all times while the offer is open to Australian investors, the New
Zealand issuer must:
give a prospective investor, on request and free of charge, copies
of the constitution of the issuer (Australian Corporations Act,
s1200G(8));
comply with the notification requirements (Australian
Corporations
Act, s1200G(9))—see Table 3;
maintain an address for service in Australia (Australian
Corporations
Act, s1200H); and
ensure that the following persons are not concerned in the
management of the issuer (Australian Corporations Act, s1200G(6)):
anyone who is disqualified from managing corporations, or from
being concerned in the management of the issuer, in New Zealand
or Australia;
or
anyone who is subject to a banning order under s920A or a court
order under s921A(2)(a) of the Australian Corporations Act.
If the offer is an offer of interests in a managed investment scheme and
the issuer’s records indicate that interests are held
by someone who
resides in Australia, the issue must comply with the dispute resolution
condition under s1200J of the Australian Corporations Act: see paragraphs
27-28.
|
Note: A New Zealand issuer may be required to comply with the requirements in
s1200H and 1200J of the Australian Corporations Act after the offer has closed
in Australia.
Complying with the dispute resolution condition (ongoing
requirements)
27. Where a New Zealand issuer’s offer relates to interests in a managed investment scheme, the New Zealand issuer must have a dispute resolution process that complies with s1017G(2) of the Australian Corporations Act: Australian Corporations Act, s1200J.
28. This dispute resolution system must consist of:
(a) an internal dispute resolution procedure that:
(i) complies with the standards and requirements made or approved by
ASIC; and
(ii) covers complaints made by retail clients in relation to the financial
services provided; and
(b) membership of one or more ASIC-approved external dispute
resolution schemes that cover complaints made by retail
clients in relation to
the financial services provided.
29. The New Zealand issuer must maintain the dispute resolution processes in Australia for as long as the issuer’s records show that an Australian resident holds securities in the class of securities that was the subject of the offer.
Note: See ASIC’s Regulatory Guide 165 Licensing: Internal and
external dispute resolution (RG 165) and Regulatory Guide 139 Approval
and oversight of external dispute resolution schemes (RG 139) for
information relating to Australian dispute resolution requirements.
Ongoing notification requirements (New Zealand issuers)
30. The New Zealand issuer must notify ASIC of certain circumstances set out in Table 3.
Table 3: Notification requirements for New Zealand issuers (s1200G(9) of the
Australian Corporations Act)
If ...
|
You must lodge with ASIC
...
|
By this time ...
|
A change is made to an offer document, or any other document, required by
the NZ securities law
|
A copy of the document as changed.
|
No later than 7 days after the day on which the issuer notified (or should
have notified) the NZCO of the change.
|
A change is made to the warning statement that is included with the offer
document in Australia
|
A copy of the warning statement as changed.
|
|
A supplementary or replacement offer document is required by the NZ
securities law
|
A copy of the supplementary or replacement offer document.
|
|
A change is made to the constitution or constituent document of the entity
whose securities are being offered
|
A copy of the constitution or constituent document as changed.
|
|
The NZSC makes, changes
or revokes an exemption that applies exclusively to the offer or the
issuer under the NZ securities law
|
A copy of the exemption, the exemption as changed, or notice in the
prescribed form (if any) of the details of the revocation.
|
No later than 7 days after the making, change or
revocation of the exemption occurs.
|
The NZSC or the NZCO makes, changes or revokes an exemption that applies,
but not exclusively, to the offer or the issuer under the NZ securities
law
|
Written notice in the prescribed form (if any) of the details of the
exemption, change or revocation.
|
No later than 14 days after the making, change or revocation of the
exemption occurs.
|
The NZSC or the NZCO begins enforcement action, or exercises a power it has
under law, in relation to the issuer or offer
|
Written notice in the prescribed form (if any) of the details of the action
taken or power exercised.
|
No later than 7 days after the action is taken or the power
is exercised.
|
What happens if an offering condition is breached?
31. A breach of an offering condition amounts to a breach of Australian
law, which ASIC can investigate: Australian Corporations Act, s1200Q. In
addition, under Ch 8 of the Australian Corporations Act, ASIC may:
(a) make a stop order under s1200N; or
(b) ban the issuer from making a recognised offer for a specified
period under s1200P.
What other Australian securities laws apply to a recognised
offer?
32. A recognised offer is exempt from many of the provisions of the Australian
Corporations Act, including:
(a) if the offer relates to debentures (Ch 2L) or to a managed investment scheme
(Ch 5C);
(b) the requirements for disclosure for the offer of securities (Ch 6D
except for the hawking provisions: see paragraph 33);
and
(c) the requirements to be licensed or authorised to provide financial
advice and to provide disclosure for financial products
(Parts 7.6, 7.7, 7.8 and
7.9 of Ch 7 except for the hawking and short selling provisions).
33. Other Australian laws apply to recognised offers. In Australia,
there is a broad-ranging prohibition in relation to dealing
in securities
(including offers of securities) in a manner that is likely to mislead or
deceive. There are also general content rules
for pre-offer advertising for
securities and for interests in managed investment schemes. In addition, a
person must not offer securities
for issue or sale in the course of, or because
of, an unsolicited meeting with another person or an unsolicited telephone call
to
another person (this is known as ‘hawking’).
34. Under Australian law, an issuer with at least 100 members must comply with continuous disclosure rules even if it is not listed on a financial market: see Australian Corporations Act, s111AC, 111AD, 111AF(2) and 1200K.. For example, the issuer must lodge with ASIC on an ongoing basis information that a reasonable person would expect to have a material effect on the price or value of the securities or undertake website-based disclosure in accordance with ASIC’s good practice guidance: see Regulatory Guide 198 Unlisted disclosing entities: Continuous disclosure obligations (RG 198). An issuer is also prohibited from short selling securities.
C. WHAT MUST AUSTRALIAN ISSUERS DO?
Key points
35. An Australian issuer who wants to offer securities to New Zealand investors under the mutual recognition scheme must:
(a) be entitled under the Australian securities law to offer the
securities (i.e. the offer of securities must require a disclosure
document or a
Product Disclosure Statement (PDS) under the Australian Corporations Act);
and
(b) comply with applicable Australian laws.
36. The issuer must also comply with specified requirements for an
offer of securities in New Zealand, including lodging a notice
with the NZCO and
ensuring that the offer document is accompanied by a warning statement.
37. While the offer remains open to New Zealand investors, the
Australian issuer must comply with the offering conditions, including
ensuring
that the offer remains open to Australian investors and notifying the NZCO of
certain circumstances.
Before making an offer (entry requirements)
What is a ‘regulated offer’?
38. An offer of securities by an Australian issuer into the New Zealand market under the mutual recognition scheme is a ‘regulated offer’. To be a regulated offer, the offer of securities must require a disclosure document or a Product Disclosure Statement (PDS) under the Australian Corporations Act. The Australian issuer must be entitled under Australian law to offer the securities. If the disclosure document or PDS is required to be lodged with ASIC under Australian law, then the issuer must lodge the disclosure document or PDS with ASIC and any exposure period must have expired.
Note: An offer can still be a regulated offer even if the PDS does not need
to be lodged with ASIC under s1015B of the Australian
Corporations Act. In this
situation, s1015D of the Australian Corporations Act will instead require the
Australian issuer to lodge an in-use notice with ASIC.
Who can make an offer?
39. The issuer must be incorporated under the law of Australia or be a
natural person resident in Australia or be a legal person
established under the
law of Australia or be a registered foreign company under the Australian
Corporations Act.
40. The issuer or any person concerned in the management of the issuer must not be:
(a) prohibited by, or under a power exercised under, Australian law from being concerned in the management of a company in Australia (NZ mutual recognition regulations, reg 13(2)(b));
(b) prohibited by, or under power exercised under, New Zealand law from
being concerned in the management of a company in New
Zealand (NZ mutual
recognition regulations, reg 13(2)(b)); or
(c) previously banned by the NZSC from making a regulated offer (NZ
mutual recognition regulations, reg 13(4)).
What securities can be offered in New Zealand?
41. The mutual recognition scheme applies to equity or debt
securities, interests in collective investment schemes,
and any interest
in, or option to acquire, these securities: NZ mutual recognition
regulations, reg 4.
What must be lodged with ASIC?
42. If an Australian issuer proposes to make an offer of securities in New Zealand, the Australian issuer must lodge with ASIC written notice of its intention to make the offer under the mutual recognition scheme: see Australian Corporations Act, s1200S. An Australian issuer may provide written notice of its intention to offer under the mutual recognition scheme by selecting the option that confirms the offer will be made available in a recognised jurisdiction (e.g. New Zealand) under the foreign recognition scheme when completing either the ASIC OFFERlist form or PDS in-use notice and submitting it to ASIC in the usual way. This notification must be no later than the time the NZCO is notified of the Australian issuer’s intention: see 44–46.
Australian Securities and Investments Commission
GPO Box 9827
Sydney NSW 2001
AUSTRALIA
What must be lodged with the NZCO?
44. Before making the offer in New Zealand, an Australian issuer must lodge with the NZCO a written notice of its intention to make the offer under the NZ mutual recognition regulations: NZ Securities Act, s73(1)(c) and NZ mutual recognition regulations, reg 11 (Issuers will receive confirmation from the NZCO that their offer documents have been accepted, and should await this notice before making the offer). The notice must:
(a) state that the issuer intends to make an offer according to the NZ mutual recognition regulations;
(b) specify the securities to be offered;
(c) specify the proposed offer period for each of:
(i) the offer of the securities in New Zealand; and
(ii) the offer of the securities in Australia;
(d) give the name and address of a person who is authorised to accept service in
New Zealand;
(e) state that the Australian issuer submits to the jurisdiction of the courts of New
Zealand;
(f) state the Australian issuer’s New Zealand overseas issuer registration number
(if any);
(g) be signed by a person who is authorised to act on the issuer’s
behalf; and
(h) be accompanied by the following documents:
(i) an offer document required by Australian law (e.g. a prospectus or, if the offer relates to a managed investment scheme, a PDS);
(ii) details of any exemption or declaration under the
Australian Corporations Act that is relevant to the offer (whether applying
specifically to the issuer or the offer, or generally); and
(iii) the constitution of the company or scheme.
Note: Notification forms are available on the NZCO website at www.business.govt.nz/companies/learn-about/other-entities/more-entities/overseas-
issuers/mrso/mrso-forms/.
45. The offer document must be accompanied by the prescribed warning statement required under regs 13(1)(d)–13(1)(g) of the NZ mutual recognition regulations that the offer is principally regulated under Australian rather than New Zealand law, along with disclosure of any dispute resolution process or other tax differences and currency risks.
Northern Business Centre
Private Bag 92061
Victoria Street West
Auckland 1142
NEW ZEALAND
The NZSC's power to declare a failure to meet a requirement as
non-material
47. If an Australian issuer's offer of securities would be exempt
except for a failure to meet a requirement contained in regs
11 and 12 of the NZ
mutual recognition regulations and the NZSC is satisfied that the failure is
minor or technical only, the NZSC
may declare in writing that it is a
non-material breach: NZ mutual recognition regulations, reg 8(3). The effect of
a declaration
of a non-material breach is that the requirement in question is
deemed to have been complied with: NZ mutual recognition regulations,
reg
8(4).
While the offer is open (ongoing requirements)
48. At all times while the offer remains open to New Zealand investors,
the Australian issuer must comply with the offering
conditions (see Table 4),
which include ensuring that the offer remains open to Australian investors and
notifying the NZCO of certain
circumstances (see Table 5).
Table 4: Offering conditions for Australian issuers
The offer
|
At all times while the offer is open to New Zealand investors, the offer
must:
remain a regulated offer in Australia (NZ mutual recognition
regulations, reg 13 (1)(a));
comply with Australian securities law (NZ mutual recognition
regulations, reg 13(1)(b));
be open to acceptance by persons in Australia (NZ mutual
recognition regulations, reg 13(1)(c)); and
ensure that an offer document given to a person is accompanied
by
the prescribed warning statement (NZ mutual recognition regulations, regs
13(1)(d)–13(1)(g)).
|
The issuer
|
At all times while the offer is open to New Zealand investors, the
Australian issuer must:
give a prospective investor, on request and free of charge,
copies of the constitution of the company or scheme (NZ mutual
recognition
regulations, reg 13(2)(a));
comply with the notification requirements (NZ mutual recognition
regulations, reg 13(3))—see Table 5;
maintain an address for service in New Zealand (NZ mutual
recognition regulations, reg 13(2)(c)); and
ensure that anyone who is prohibited by, or under a power
exercised under, Australian or New Zealand law from being concerned
in the
management of a company in Australia or New Zealand is not concerned in
the management of the issuer (NZ mutual recognition regulations, reg
13(2)(b)).
|
Availability of dispute resolution in New Zealand (ongoing
requirements)
49. Where an Australian issuer’s offer relates to interests in a collective investment scheme and any dispute resolution process described in the offer document is not available in New Zealand, reg 13(1)(g) of the NZ mutual recognition regulations provides that the offer document must be accompanied by the following additional warning statement:
The dispute resolution process described in this offer document is only available in
Australia and is not available in New Zealand
Ongoing notification requirements (Australian issuers)
50. The Australian issuer must notify the NZCO of certain circumstances set out in
Table 5.
Table 5: Notification requirements for Australian issuers (including regs 13(3), 16 and
17 of the NZ mutual recognition regulations)
If ...
|
You must lodge with the
NZCO ...
|
By this time ...
|
A change is made to an offer document, or any other document, required by
the Australian securities law
|
Notice of change to the offer document stating the date on which the
Australian issuer notified (or should have notified) ASIC of
the change and a
copy of the document as changed with the changes marked.
|
No later than 5 working days after the day on which the issuer notified (or
should have notified) ASIC of the change.
|
A supplementary or replacement offer document is required by the Australian
securities law
|
Notice of supplementary or replacement offer document stating the date on
which the Australian issuer filed (or should have filed)
the supplementary or
replacement document and a copy of the supplementary or replacement offer
document.
|
As soon as practicable after and no later than 5 working days after the day
on which the issuer filed (or should have filed) the supplementary
or
replacement offer document with ASIC.
|
The issuer’s address for service changes
|
Notice of change of address for service containing the new address for
service and the
date on which the change takes effect.
|
At least 5 working days before the change takes effect.
|
If ...
|
You must lodge with the
NZCO ...
|
By this time ...
|
A change is made to the constitutional document of the entity whose
securities are being offered
|
Notice of change to constitutional document stating the date on which the
Australian issuer notified (or should have notified) ASIC
of the change and a
copy of the constitutional document as
changed with changes marked.
|
No later than 5 working days after the day on which the issuer notified (or
should have notified) ASIC of the change.
|
ASIC makes, changes or revokes a general exemption relevant to the
offer
|
Notice of grant of, amendment to, or revocation of, general exemption
specifying the general exemption, stating whether it has been
granted, amended
or revoked and the date of its grant, amendment
or revocation.
|
No later than 10 working days after the day ASIC made, changed or revoked
the exemption or modification.
|
ASIC makes, changes or revokes an exemption or modification relevant to the
offer that is specific to the offer or the issuer
|
Notice of grant of, amendment to, or revocation of, specific exemption
specifying the specific exemption and, if the exemption has
been granted or
amended, a copy of the exemption or amended exemption (with changes marked), and
the date the exemption was granted,
amended or revoked.
|
No later than 5 working days after the day ASIC made, changed or revoked
the exemption or modification.
|
ASIC begins enforcement action, or exercises a power it has under law, in
relation to the issuer or offer
|
Notice of enforcement action taken or power exercised stating the date on
which the enforcement action began or the power was exercised
and giving details
of the nature of the enforcement action or the exercise of the power.
|
No later than 5 working days after the day on which ASIC took the action or
exercised the power.
|
What happens if an offering condition is breached?
51. A breach of a term or condition that must be complied with under the mutual recognition scheme is an offence under New Zealand law: NZ Securities Act, s76. In addition, the NZSC may:
(a) make an order prohibiting the distribution of the Australian offer
document (NZ mutual recognition regulations, reg 6(3)
and NZ Securities Act,
s38B); and
(b) ban the issuer from making an offer under the NZ mutual
recognition regulations (NZ mutual recognition regulations,
reg
13(4)).
What other New Zealand securities laws apply to a regulated
offer?
(a) prohibition of door-to-door sales (NZ Securities Act, s35);
(b) all Australian offer documents are advertisements under the NZ
Securities Act, and while pre-offer advertising is permitted
in certain
circumstances (NZ mutual recognition regulations, reg 6(3)), the NZSC has broad
powers to prohibit the distribution
of any advertisements that are
likely to deceive, mislead or confuse in a material regard (NZ Securities Act,
s38B); and
(c) criminal liability for untrue or misleading statements or omissions in offer documents (NZ Securities Act, s58).
D. HOW WILL ASIC, THE NZCO AND THE NZSC WORK TOGETHER?
Key points
ASIC, the NZCO and the NZSC have established arrangements for
cooperation and information sharing in administering the
mutual recognition
scheme.
53. ASIC and the NZCO have entered into a Memorandum of Understanding
(MOU) for the exchange of data and information relating
to companies carrying on
business on both sides of the Tasman and for mutual assistance. In addition to
this, ASIC the NZCO and the
NZSC have established protocols for cooperation
between the authorities in administering the mutual recognition scheme. These
protocols
describe how ASIC, the NZCO and the NZSC intend to cooperate and share
information under the mutual recognition scheme.
54. ASIC and the NZSC have also established arrangements for cooperation and information sharing in the administration of the mutual recognition scheme. For example, the arrangements deal with notification by one regulator to the other if it initiates enforcement action against an issuer, where a complaint is made against an issuer, or where changes are made to offer documents.
KEY TERMS
Term
|
Meaning in this document
|
ASIC
|
Australian Securities and Investments Commission
|
Australian Corporations
Act
|
Corporations Act 2001 (Cth) of Australia
|
Australian corporations regulations
|
Corporations Regulations 2001 (Cth) of Australia
|
Australian securities law
|
Corporations Act 2001 (Cth) of Australia and regulations made under
that Act
|
home jurisdiction
|
The country in which the issuer of the securities is domiciled
|
mutual recognition scheme
|
The trans-Tasman mutual recognition scheme for offers of securities as
contained in the law referred to in paragraph 6
|
NZCO
|
New Zealand Companies Office
|
NZ mutual recognition regulations
|
Securities (Mutual Recognition of Securities Offerings— Australia)
Regulations 2008 of New Zealand
|
NZSC
|
New Zealand Securities Commission
|
NZ regulations 2009
NZ Securities Act
|
Securities Regulations 2009 of New Zealand
Securities Act 1978 of New Zealand
|
NZ securities law
|
Securities Act 1978 of New Zealand and regulations made under that
Act
|
PDS
|
A Product Disclosure Statement under the Australian
|
recognised offer
|
An offer of securities by a New Zealand issuer into the
Australian market
|
regulated offer
|
An offer of securities by an Australian issuer into the New
Zealand market
|
RELATED INFORMATION
Headnotes
Securities, offerings, trans-Tasman, mutual recognition, New Zealand, offer
document, information sharing, managed investment schemes,
collective investment
schemes, disclosure document, recognised offer, regulated offer, fundraising,
issuers, entry requirements,
ongoing requirements, offering conditions,
notification requirements, Product Disclosure Statement (PDS)
Regulatory guides
RG 51: Applications for relief
RG 139: Approval and oversight of external dispute resolution
schemes
RG 165: Licensing: Internal and external dispute resolution
RG 198: Unlisted disclosing entities: Continuous disclosure
obligations
Legislation
Corporations Act 2001 (Cth) of Australia, s111AC, s111AD, s111AF(2), Part 2D.6, Chs 2L,
5C, 6D, Parts 7.6, 7.7, 7.8, 7.9, Ch 8, s920A, s921A(2)(a), 1015B, 1015D, 1017G, 1200A,
1200B, 1200C, 1200D, 1200E, 1200G, 1200H, 1200J, 1200K, 1200N, 1200P, 1200Q,
1200S; Corporations Regulations 2001 (Cth) of Australia, regs 8.2.01, 8.2.02,
8.2.03
Securities Act 1978 of New Zealand, Parts 2, 5, s35, 38B, 58, 73(1)(c), 76; Securities (Mutual
Recognition of Securities Offerings—Australia) Regulations 2008 of New Zealand, regs 3,4,
6(3), 8, 11, 12, 13(1), 13(2), 13(3), 13(4), 15, 16, 17
Securities Regulations 2009 of New Zealand
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