Crowd funding is a type of financial market service covered by the Financial Markets Conduct Act 2013 (FMC Act). An equity-based crowd funding service licence holder acts as an intermediary between companies issuing shares and investors purchasing shares. The licence holder provides a facility where offers of shares can be made to the investing public.
What type of crowd funding is covered by a licence
The FMC Act covers equity-based crowd funding. Equity crowd funding is where companies raise money from the public by issuing shares. The FMC Act does not cover rewards-based crowd funding, where companies only offer a reward (for example, tickets, goods, credits on a website) to people who are providing money. It is not a crowd funding service under the FMC Act if the service is only used for charitable or philanthropic fundraising where donors don't receive shares.
The FMC Act enables companies to raise up to $2 million in any rolling 12 month period, without having to issue a product disclosure statement.
Licensing and registration
Why get a licence
Equity crowd funding must be done through a licensed crowd funding service provider if the issuer of shares wants to take advantage of the lighter disclosure obligations that apply to crowd funded share offers.
With a licence, a service provider can help companies who want to offer shares without having to prepare and supply a product disclosure statement. By using the licensed service, these companies can rely on an exemption in the FMC Act that exempts them from providing product disclosure statements, although they must still meet all their other legal obligations.
Applying for a licence
To ensure the licence application runs as efficiently as possible, please follow the steps outlined below:
Review the licensing guides below as they contain all the information that is needed to complete and submit your application.
Licensing Guide Part A contains information about the licensing process and includes many answers to FAQs and explains how to use the online application form.
Licensing Guide Part B contains all the specific questions that will be asked and the minimum standards that need to be met in order to obtain a crowd funding licence. It also provides details of the information and supporting documents that will need to be provided when submitting the licence application.
The fee payable to the FMA when applying for a new FMC Act licence for crowd funding services is $6,238.75 (incl. GST). The fee includes 40 assessment hours.
We may charge an additional fee at the FMA staff hourly rate where the assessment of an application exceeds 40 assessment hours. If it appears that an additional fee may be charged for your application, the FMA will inform the applicant in advance and provide them with a reason for this. We may also invoice for any costs of external advice or assistance.
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.
All licensed trustees have a number of obligations, in addition to the minimum standards and standard conditions set out in their licence. These obligations include meeting the relevant professional standard of care; monitoring your compliance; identifying material changes of circumstances; meeting reporting obligations and notifying the FMA of certain events and providing us with information. A list of your obligations can be viewed below.
The fair dealing provisions of the FMC Act prohibit misleading or deceptive conduct, false, misleading or unsubstantiated representations, and offers of financial products in the course of an unsolicited meeting.
The FMA has issued a guide to fair dealing in advertising and communications specific to crowd funding and peer-to-peer lending service licence. The purpose of this guidance document is to ensure licensed crowd funding and peer-to-peer lending service providers understand their obligations when advertising or communicating with customers.
Crowdfunding issuers fair dealing
Under exemptions in financial markets law, crowdfunding issuers don't need to prepare a product disclosure statement if you are using a licensed crowdfunding service provider. Instead, you will provide more limited information about your business when you make offers.
false or misleading representations, for example, you must be honest about who you are and what you're going to use the money for
unsubstantiated representations, for example, you must ensure you have a reasonable grounds for any financial projections provided to potential investors.
Other laws will also apply. For example, you will need to provide financial information to your shareholders under the Companies Act. And, where you have 50 or more shareholders those shareholders may have to comply with the Takeovers Code when buying shares.
Anti-money laundering and countering financing of terrorism
You must provide a written risk assessment of the money laundering and financing of terrorism activity you could expect in the course of running your business.
You are required to implement an anti-money laundering and countering financing of terrorism programme that includes procedures to detect, deter, manage and mitigate money laundering and the financing of terrorism.
You are required to appoint a compliance officer to administer and maintain your programme.
You are required to perform due diligence processes on your customers. This includes customer identification and verification of identity.
You are required to report suspicious transactions.
Every licensed crowd funding provider is required to complete and submit an annual regulatory return which is a series of questions about your business and how your licensed service is used. The information you provide us through the annual return helps us to:
better understand your business and the services you offer;
ensure the information we have on your business is current; and
focus our monitoring activities more effectively.
All licensees will need to submit their return to us by 31 August for the 12 months to 30 June.
Please contact the FMA to request the regulatory form to be submitted for the year ended 30 June 2021.
Notifying the FMA
Licensee obligations include notifying the FMA of certain events and providing us with information. All notifications should be emailed to firstname.lastname@example.org, noting the relevant obligation in the subject line of your email.
Forms to be completed if there are changes to directors or senior managers
It is a standard condition of licensing for independent trustees (corporates) to notify the FMA of changes to directors or senior managers of a licensee and/or key personnel of an authorised body. To notify us of a change to your key people and managers as required by the licensing standard conditions, please send an email to email@example.com outlining what the changes are and the qualifications and experience of the new or replacing personnel, e.g. attach their c.v.