The Investment Advisers (Disclosure) Act 1996 is repealed. Client disclosure requirements for investment advisers and brokers will instead be set out in Part 4 of the Securities Markets Act.

The new disclosure laws require more information to be given to clients, especially about fees and remuneration.

Full disclosure must be made up-front by investment advisers before investment advice is given to members of the public and by investment brokers before receiving investment money or investment property from members of the public.

The disclosure is mandatory. It must be made in a disclosure statement, and provided without the client having to ask for it.

The new rules are intended to make sure clients receive information they need about their investment advisers. In particular clients must be given more information about fees, commissions and other remuneration. This will extend to any benefits to be received by the adviser, whether from the client or another source, and include "soft” commissions and indirect benefits relevant to the advice being given to the client.

Investment advisers’ disclosure must include:

• their experience and qualifications;
• criminal convictions;
• the nature and level of fees charged;
• other interests and relationships (including all remuneration); and
• types of securities the adviser advises on.

Investment brokers’ disclosure must include:

• criminal convictions; and
• procedures for dealing with investment money and investment property.

Disclosure statements must be kept up-to-date and must not be deceptive, misleading or confusing.

The new law also regulates advertisements made by investment advisers and brokers. The term "advertisement” is broadly defined. Any form of communication can be an advertisement (as is the case under the Securities Act). There are three types of advertisement:

• advice advertisement – prepared by or for an investment adviser, and either:
  • contains or refers to investment advice; or
  • could induce people to seek investment advice:
• product advertisement – prepared by or for an investment adviser, and either:
  • contains or refers to an offer of securities to the public; or
  • could induce people to subscribe for an offer of securities,

but does not include anything that is an advertisement under the Securities Act:

broker advertisement – prepared by or for an investment broker, and either refers to the broker or could induce people to seek the services of an investment broker.

Advertisements are likely to include newsletters, seminar presentations, paid advertising in newspapers, tv, or radio, and radio and tv broadcasts containing investment advice or promoting securities.

Advertising must not be deceptive, misleading, or confusing. Any advertisement for an adviser’s or broker’s services must say that a disclosure statement is available, on request and free of charge.

Misleading disclosure statements or misleading advertising will attract criminal penalties of up to $300,000. Further penalties of up to $10,000 per day can be imposed where offending continues.

Advisers and brokers must not recommend illegal offers of securities or receive investment money in respect of illegal offers of securities. A breach of this requirement is a criminal offence if the adviser or broker knows or ought to know that the offer is illegal.

The Commission will have the power to enforce the new requirements and make prohibition orders, corrective orders, disclosure orders and temporary banning orders. The Courts will be able to make orders banning people from acting as investment advisers for up to 10 years.

Failure to comply with the disclosure obligations is an offence with fines of up to $300,000. Civil penalties of up to $1,000,000 can be imposed by the Court.

Timing

We expect regulations to be made and the law to come into effect around the middle of the year. The Commission is preparing a handbook on the new law which will be available when the regulations are finalised. If you would like to receive a copy ring
04 472 9830 or email
seccom@sec-com.govt.nz.

Website

The Commission has set up a website, www.newsecuritieslaw.govt.nz to help market participants and people who give investment advice to members of the public understand their obligations under the new law.