A financial product market is a facility where financial products are bought or sold, or where offers or invitations to buy or sell financial products are made. S309 of the Financial Markets Conduct Act (the Act) sets out what is considered a financial product market and what is not.
Who needs to comply
Anyone operating a financial product market needs to be licenced unless the market is exempt. A financial product market is a facility where financial products are bought or sold, or where offers or invitations to buy or sell financial products are made.
See s309 of the FMC Act (Act) for the definition of what is, and what is not, considered a facility, and s312 for more on exemptions from the licensing requirements.
Licensing and registration
The Minister of Commerce and Consumer Affairs issues financial product market licences, with advice from the FMA. The Minister and the FMA must consider the following before issuing a licence to a financial product market operator:
the nature of the activities proposed
the market’s proposed size
the nature of the financial products dealt with
the likely participants (either directly or by using the services of participants) and
the technology used in operating the market.
The Minister must also be satisfied that an applicant will be able to meet the general obligations of licensed market operators, found in s314 of the Act, and is a body corporate registered on the FSPR.
How to apply
To ensure your application runs as smoothly as possible, make sure you understand what is required:
A person who wants a licence to operate a financial product market should apply to the FMA in writing. We will assess your application and ensure you have provided all relevant information, before giving the Minister advice about the application, which we must do within a reasonable time. The information included with your application should clearly demonstrate:
How the proposed market will meet all of the general obligations set out in s314 of the Act.
How the proposed market will meet the criteria in s316 of the Act.
Whether you have the skills, expertise, procedures and capacity to satisfy each of the obligations on a continuing basis.
That you are a body corporate and have registered under the Financial Service Providers (Registration and Dispute Resolution) Act 2008.
A market operator must not operate markets that are not specified in a licence, but a licence may cover more than one financial product market. The standard conditions for a licence include:
The financial product market covered by the licence.
The clearing and settlement arrangements for the market.
The arrangements for enforcing the rules of the market.
The Minister may also place other conditions on the licence. The market operator can subsequently request changes to the conditions of its licence, or the Minister may vary the conditions on his or her own initiative.
Any application for a financial product market licence needs to include the proposed rules for the market. It also needs a description of any consultation that has been carried out about the rules (public or targeted); details of any relevant international best practice; and evidence that the rules meet what’s required under s328 of the Act. For more information on the approval of market rules, download s327 to 336 of the Act.
The application fee for a licence to operate a financial product market, vary an existing licence, or approve a market rule change is based on the amount of time spent on the application. This is charged at the FMA hourly rate.
The FMA receives funding from the Crown and a proportion of our costs is recouped from industry through levies.
A financial markets participant falls within one or more levy ’class’, depending on what financial services they provide.
A levy must be paid for every levy class the financial markets participant falls within. Levies are payable on the relevant leviable event as described in column 3 of Schedule 2 in the Regulations.
Some levy classes have been split in order to recognise the variations in size and nature of different financial market participants.
Most levies are paid when making an annual confirmation to the Registrar of Financial Service Providers (the Registrar).
Most levies are payable to the Registrar, via the (FSPR). However, some levies are payable directly to the FMA. This is set out in column 4 of Schedule 2 in the Regulations.
The following levy classes are invoiced directly by the FMA:
Levy Class 8, Levy Class 8A, Levy Class 10, Levy Class 10A and Levy Class 13.
The table below (see levy class description) provides a high-level description of each levy class. For the full description of levy classes, see Schedule 2 in the Regulations.
Levy Class description
The table below provides a high-level description of each levy class. For the full description of levy classes, see Schedule 2 in the Regulations.
Persons making an application for registration on the Financial Service Providers Register
Registered banks and licensed non-bank deposit takers
Licensed supervisors of debt securities and managed investment products in registered schemes
Managers (of registered schemes)
Persons who undertook trading activities on licensed markets, contributory mortgage brokers, trading financial products or foreign exchange on behalf of other persons (other than persons included in class 6A, 6B, 6C or 6D, authorised bodies that only provide the service under a market services licence held by a person in class 6A or 6D and DIMS wholesale providers) or licensed derivatives issuers
Licensed discretionary investment management service (DIMS) retail providers
Providers of a regulated client money or property service (as defined in section 6(1) of the FMC Act) other than persons included in class 6(a) or 6C
Custodians and persons providing custodial services
Crowdfunding service providers and peer-to-peer lending service providers
Licensed financial benchmark administrators
Licensed financial advice providers
All other financial service providers that are not included in any of classes 2 – 6H
Listed issuers (other than persons included in class 8A)
Small listed issuers
Lodgement of a product disclosure statement (PDS)
Licensed market operators
Licensed market operators that operate growth markets (other than persons included in class 10)
FMC reporting entities that lodge financial statements (or group financial statements) and auditor’s reports
Licensed overseas auditors
Persons that apply for registration or incorporation under the Building Societies Act 1965; the Companies Act 1993; the Friendly Societies and Credit Unions Act 1982; or the Limited Partnerships Act 2008
Persons that are registered or incorporated and required to make annual returns under the Building Societies Act 1965; the Companies Act 1993; the Friendly Societies and Credit Unions Act 1982; or the Limited Partnerships Act 2008
It is the responsibility of each financial service provider to ensure they are registered for the service(s) they provide and have paid the appropriate levies. As part of their online annual confirmation to the Registrar, they must select all of the applicable classes to determine the levies payable and confirm the information they have provided is true, correct and complete.
Under the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (the FSP Act) it is an offence to:
provide services you are not registered for or state you are registered for a particular financial service when you are not
make a representation relating to any document or information required by the FSP Act or its regulations knowing that it is false or misleading, or omit any matter knowing such omission is false or misleading.
These offences could result in a fine of up to $100,000 and/or imprisonment for individuals, and a fine of up to $300,000 for businesses.
It is also an offence under the FSP Act to fail to notify the Registrar if any of the details contained on the FSPR are no longer correct. Failure to notify could result in a fine of up to $10,000.
We have discretionary power to waive a levy (in whole or part).
We will only do so if we are satisfied that the circumstances or characteristics of the financial markets participant are exceptional when compared with the circumstances or characteristics of others in the same class, so that it would make it inequitable for the person to pay the levy. The threshold is deliberately high.
The waiver power is not intended to be used to revisit settled policy positions.
Once we receive a waiver application and the fee, we will assess it. If we decide to grant the waiver, we must notify our decision in the Gazette, and publish the decision and reasons for it on our website.
How to apply for a levy to be waived
You will need to email the following information to email@example.com with the subject line ‘Levy waiver application’.
Name of person or entity applying for the waiver.
Contact person for correspondence concerning the application including address, phone number and email.
Indicate the persons/entity who will receive the benefit of any waiver granted.
Specify which class(es) you seek a waiver from and whether a waiver is sought from the full levy or part and the amount thereof.
Let us know your preferred date for any waiver to take effect.
Explain why the waiver should be granted and why your circumstances are exceptional when compared with others in the same class.
Provide all relevant facts in support of your application.
Explain any regulatory benefit of FMA granting the waiver.
Give details of any previous contact with officials (including their names) at FMA or MBIE (including the Companies Office) on the matter.
How to pay your waiver application fee
You can pay by electronic deposit or internet banking. Payment can be made by applicants or law firms making applications on behalf of their clients.
The person paying the application fee must be the person who pays the subsequent fees and costs. For example, if a law firm pays the application fee, that law firm must also pay any additional fees and costs.
We recommend if law firms apply for waivers on behalf of their clients, the parties discuss and agree who will be responsible for paying the FMA’s fees before submitting a waiver application.
How to pay
Electronic deposit or internet banking
Where bill pay is available please select ‘Financial Markets Authority - Other' Otherwise, our bank details are: Bank: Westpac Account name: Financial Markets Authority Account number: 03-0584-0198005-000
To ensure we process your payment correctly please provide the following information: Particulars: Payer’s name* Code: Waiver Reference: Applicant’s name You do not need to forward a hard copy of your application if paying electronically
* This is the name of the person paying the application fee. This person will be invoiced for any subsequent fees and costs. Payment by credit card is not available for this application process.
What are the fees
A payment of $1,265 should accompany each application.
This covers the application fee of $115 set out in the Financial Markets Authority (Fees) Regulations 2011 and an advance of $1,150 (including GST) for fees and costs to be incurred.
These regulations set out charging rates of $230 (including GST) per hour for time spent by FMA Board members and $178.25 (including GST) per hour for time spent by FMA staff.
These regulations are set by MBIE.
How long does it take
Once we have been provided with all relevant information, it generally takes around six weeks to process an application.
This may be longer if any policy questions arise.
If your application is urgent, please provide the date you need the decision by.
You must also provide reasons for requesting urgent consideration.
As a market operator, you must make sure your licensed markets operate in a fair, orderly and transparent way (s314), and have arrangements in place for the following:
handling conflicts between your commercial interests and fair, orderly and transparent markets
making market disclosures available
monitoring conduct on the markets
enforcing your market rules.
You must also ensure you have the resources required to operate your markets properly, and you are able to continue to meet any conditions of your licence.
As a market operator you are required to provide the FMA with a periodic self-assessment on how well you have complied with your obligations during that period (s337).
We must also carry out periodic reviews of your compliance and publish our findings in a report. If we find that you are not meeting your general obligations, we can ask you to put an action plan in place.
As a market operator you are obliged to notify us of certain events, such as when you take disciplinary action for breaches of your market rules, or when you suspect someone may have breached the legislation. You must also give us information and assistance when we need them to carry out our regulatory role.