Financial adviser

Anyone giving advice to retail clients must comply with a new Code of Professional Conduct for financial advice services. This outlines the standards of ethical behaviour, conduct, client care, competence, knowledge, and skill you need to meet when giving regulated financial advice to retail clients in New Zealand. The Minister of Commerce and Consumer Affairs approved the Code of Professional Conduct in May 2019. It took effect from the start of the new regime on Monday 15 March 2021.

A person who gives financial advice must:

Part 1: Ethical behaviour, conduct and client care

1. Treat clients fairly
2. Act with integrity
3. Give financial advice that is suitable
4. Ensure that the client understands the financial advice
5. Protect client information

Part 2: Competence, knowledge and skill

6. Have general competence, knowledge and skill
7. Have particular competence, knowledge, and skill for designing an investment plan
8. Have particular competence, knowledge and skill for product advice
9. Keep competence, knowledge, and skill up-to-date

If you were an Authorised Financial Adviser (AFA) immediately before 15 March 2021, the new Code provides ways in which you may use your AFA authorisation to demonstrate your competence, knowledge, and skill (as set out in Part 2 of the Code). We encourage you to check your authorisation against the new Code to make sure you meet the particular competency requirements for the advice you intend to give.

Visit the Code of Professional Conduct for financial advice services website.

If you give financial advice to retail clients, you must:

• Take reasonable steps to ensure your clients understand the nature and scope of the advice being provided, including any limitations about that. For example, you must explain if you’re only able to give advice about certain products.
• Where there’s a conflict of interest you must give priority to your client’s interests.
• At all times exercise care, diligence and skill.
• Comply with the new Code of Professional Conduct for Financial Advice Services requirements for ethical behaviour, conduct and client care and meet the competence, knowledge and skill requirements.
• Only recommend financial products to clients that are offered in compliance with the FMC Act and its regulations.
• Ensure you follow the new disclosure regulations and that any information you make available to clients is not false, misleading or incomplete.

Under the transitional arrangements in the Act, there is a "Competency safe harbour" built into the transitional period at the start of the new regime. 

You can rely on the competency safe harbour until 16 March 2023, if you do not already meet the competence, knowledge and skill standards set out in Part 2 of the Code, if:

• You were registered on the FSPR as an Authorised Financial Adviser (AFA)/Registered Financial Adviser (RFA) before 15 March 2021; and
• You are now registered as a financial adviser; and
• You are engaged by a financial advice provider (or authorised body) operating under a transitional or full licence.

This competency safe harbour applies to you, personally, while you work towards meeting those standards: it allows you to continue, for the first two years of the regime, to give the financial advice that you were legally permitted to provide as an AFA/RFA, even if you move to work for a different financial advice provider. After two years (on 16 March 2023), the competency safe harbour expires, and you will need to meet the standards of competence, knowledge and skill outlined in Part 2 of the Code.   

Note that if you were a QFE Adviser before 15 March 2021 and became registered on the FSPR after 15 March 2021 you may be able to rely on the competency safe harbour.

You cannot rely on the competency safe harbour if:

• You are newly registered on the FSPR as a financial adviser on or from 16 March 2021.

In this case, you must meet the full competence, knowledge and skill standards set out in Part 2 of the Code, in order to give regulated financial advice to retail clients. This applies whether the financial advice provider you’re engaged by has a transitional licence or a full licence.

Visit the Code of Professional Conduct for financial advice services website.

As a part of the financial advice regime introduced in March 2021, there are new disclosure obligations for those providing regulated financial advice to retail clients.

These are detailed in regulations 229A to 229J of the Financial Markets Conduct Regulations 2014.

Publicly available information

• If a Financial Advice Provider has an internet site, it must make certain information publicly available in order to help retail clients find a provider that meets their needs (see regulation 229C).
• We suggest that Financial Advice Providers with an internet site review its content to ensure that any references to the older Financial Advisers Act 2008 (for example, calling yourself an AFA) are removed.

Disclosures relating to advice

Certain other information must be given to retail clients when:

• the nature and scope of the advice becomes apparent in order to enable clients to make an informed decision about whether to seek, obtain, or act on the advice (see regulation 229D); and
• the advice is given (if not before) in order to help clients make an informed decision about whether to act on the advice (see regulation 229E).

Complaints information

• If a complaint is made, the person making the complaint must be given information about the complaints and dispute resolution process (see regulation 229F)

More details about the information required to be disclosed can be found in Schedule 21A of the regulations here.

Requirements for form and manner of disclosure

The regulations include general requirements for the form and manner of disclosure (see regulation 229H).

All disclosures must be

• presented in a clear, concise, and effective manner;
• given prominence if presented with other information;
• in a format, font, and type size that are easily readable if given in writing; and
• free of charge.

You can also make information available or give information in the form and manner you reasonably consider appropriate, having regard to any stated purpose of the relevant regulation (see regulation 229H(3)).

For example, provided all other requirements are met, including a way to allow a recipient to readily store disclosure information in a permanent and legible form, disclosure of information through an email with a prominent hyperlink may be appropriate.

In this context, prominence may require a suitable warning as to the nature and importance of the information.

This information is based on the law as at 15 March 2021.  If the law in Australian or New Zealand changes then our approach to recognising Australian qualifications may be amended¹. Terms and expressions in this section have the same meaning as they are given in the Corporations Act.

New Zealand competency standards

Under the FMC Act, all regulated financial advice must be given by or on behalf of a FAP.  A person must not give regulated financial advice to retail clients unless they meet the standards of competence, knowledge and skill required by the Code. FAPs must take all reasonable steps to ensure that anyone they engage to give regulated advice to a retail client on their behalf complies with this requirement.

Standards 6 to 8 of the Code require capabilities equivalent to qualification outcomes of the New Zealand Certificate in Financial Services (Level 5) version 2. The Code lists certain ways that a person who gives financial advice may demonstrate the required standard (e.g., hold version 1 or 2 of the New Zealand Certificate in Financial Services (Level 5) or be an Authorised Financial Adviser immediately before the commencement of the Code). 

The Code provides a flexible framework for a person to demonstrate their competence, knowledge, and skill. A person may demonstrate competence, knowledge, and skill in a way that is different from those listed in the Code. If this is done by reference to an alternative qualification or experience then it should be done in an objective, measurable and independently verifiable manner.

Australian professional standards¹

We recognise that the qualifications and training under the Australian education and training standards for relevant providers listed below² collectively meet the standards of competence, knowledge and skill required by standards 6 to 8 of the Code, provided additional training has been completed on the requirements for qualification outcome 4 of the New Zealand Certificate in Financial Services (Level 5) version 2. 

1. Completion of a degree or other qualification listed in the Corporations (Relevant Providers Degrees, Qualifications and Courses Standard) Determination 2020 (Australia) or completion of one or more courses that have been determined by the Financial Adviser Standards and Ethics Authority Ltd, as the standards body, to give an existing provider equivalent qualifications;
2. Passing the exam approved in the Corporations (Relevant Providers Exams Standard) Determination 2019 (Australia); and
3. Completion of the work and training professional year set by the Corporations (Work and Training Professional Year Standard) Determination 2018 (Australia)³.

Other overseas qualifications or experience may provide pathway

As noted above, the Code does not limit how you may demonstrate that you meet the required standards of competence, knowledge, and skill.  If you have Australian qualifications that meet the former training standards under the Australian Securities & Investments Commission’s Regulatory Guide RG146 for financial advisers who provide personal financial product advice to retail clients on Tier 1 products or you have other relevant overseas qualifications  or experience they may still provide an individual pathway for you towards meeting some or all of the competence, knowledge and skill standards in the Code. Your FAP can help you work out whether your overseas qualifications or experience mean you demonstrate some or all of the standards of competence, knowledge, and skill in the Code. There is also an alternative pathway to demonstrating competence, knowledge and skill available through The Skills Organisation. You can find all the information and apply for this through the Skills website.   

Continuing professional development

Any person who gives financial advice (including those with overseas qualifications or experience) must also comply with the continuing professional development requirements in standard 9 of the Code.  Individuals must, at least annually, plan for and progressively complete learning activities designed to ensure they maintain the competence, knowledge and skill for the financial advice they give as well as (to the extent relevant to that financial advice) an up-to-date understanding of the regulatory framework for financial advice in New Zealand. 

Notes:

1. Terms and expressions in this section have the same meaning as they are given in the Corporations Act 2001 (Australia) unless the context otherwise requires.
2. See s921B (2) to (4) and s1546B(1) of the Corporations Act 2001.
3. Completion of the professional year is not required for existing providers.