Corporate governance regulatory system

This page describes the corporate governance regulatory system, its objectives and our qualitative assessment of it. It also lists the main statutes and changes to regulation either planned or in progress.

System description and objectives

The corporate governance regulatory system is foundational, providing the legal infrastructure for businesses, not-for-profit entities and civil society organisations. It underpins crucial aspects of the New Zealand business environment and other regulatory systems, such as the financial markets conduct system.

Its purpose is to promote accountable, transparent and high-performing businesses and other types of entities by setting rules and incentives for how these entities are structured, governed and dissolved. In doing so, the system contributes to both business and investor confidence as key components of a prosperous New Zealand business environment.

The corporate governance regulatory system includes the rules, institutions and practices which govern the creation, operation and dissolution of various types of entities. These entities enable individuals to come together in pursuit of a common objective, whether social or commercial. Without the legislation within this regulatory system, these entities would have no legal basis.

The Companies Act 1993 is the core legislation within the system, as companies are the predominant form of entity.

The regulatory system governs the ‘lifecycle’ of entities, including:

  • how they are created (for example, through incorporation)
  • entity governance and administration, including:
    • the powers and duties of directors or officers
    • the rights and obligations of shareholders or members
  • business rehabilitation options, including amalgamations, compromises and voluntary administrations, and
  • liquidations, including rules for how any assets are to be distributed.

The corporate governance regulatory system includes other statutes that work to support the public confidence goals of the system. This includes legislation that relates to financial reporting, takeovers, personal property securities, fraudulent or reckless management of entities, and insolvency. There are also two occupational regulation statutes within the system.

The system also includes delivery of services to promote high-performing businesses. For example, business.govt.nz(external link) is a service MBIE delivers which focusses on helping small businesses with a range of tools and advice, including in relation to starting up, planning for growth, paying and managing staff, protecting intellectual property and more.

Ministerial portfolio and key statutes

Portfolio Key statutes

Commerce and Consumer Affairs(external link)

Entity-related legislation

  • Charitable Trusts Act 1957
  • Companies Act 1993
  • Co-operative Companies Act 1996
  • Incorporated Societies Act 1908
  • Limited Partnerships Act 2008
  • Partnership Act 1908
  • Trustee Companies Management Act 1975
  • Building Societies Act 1965
  • Friendly Societies and Credit Unions Act 1982
  • Industrial and Provident Societies Act 1908

Cross-cutting legislation

  • Corporations (Investigation and Management) Act 1989
  • Financial Reporting Act 2013
  • New Zealand Business Number Act 2016
  • Personal Property Securities Act 1999
  • Takeovers Act 1993

Insolvency legislation

  • Companies Act – Parts 14-16
  • Insolvency (Cross-border) Act 2006
  • Receiverships Act 1993

Occupational regulation

  • Auditor Regulation Act 2011
  • New Zealand Institute of Chartered Accountants Act 1996

Regulatory agencies and their roles

Agencies responsible for corporate governance system strategy and policy

Agency Role

MBIE

MBIE has the strategy and policy functions in relation to the corporate governance regulatory system. These functions are carried out by the Commerce, Consumers and Communications Branch.

Department of Internal Affairs (DIA)

DIA has the policy function in relation to registered charities.

Ministry of Justice

The Ministry of Justice has the policy function in relation to trusts.

Financial reporting system regulators

Agency Role

External Reporting Board (XRB)

Defines generally accepted accounting practice in New Zealand by issuing conceptual frameworks and accounting standards under the Financial Reporting Act

Contributes to the system for regulating auditors by issuing auditing, assurance and ethical standards.

Financial Markets Authority (FMA)

Responsible, under the Auditor Regulation Act, for:

  • accrediting professional bodies to carry out the frontline regulation of auditors and audit firms of financial statements prepared by FMC reporting entities
  • monitoring and reporting on the adequacy and effectiveness of accredited bodies regulatory systems and processes
  • setting the minimum standards for obtaining licence from an accredited professional body to be an auditor of FMC reporting entities.

Registration and operational policy and design

Agency Role

MBIE

  • Operates registers of entities regulated within the corporate governance system
  • Sets operational policy and designs services in relation to registration, ongoing obligations, and de-registration of companies and other entities

DIA Charities Services

Determines eligibility for registration under the Charities Act .

Others

The Takeovers Panel, XRB, FMA, Reserve Bank and Inland Revenue Department (IRD) set operational policies and programmes in relation to delivery of their own functions.

Education and information

Agency Role

MBIE

Provides information to:

  • users of Companies Office registries via website content, call centre services and a web-based query system

  • small and medium businesses via business.govt.nz website, newsletters and online tools.

DIA Charities Services

Promotes good governance in the charities sector by providing information to users via website content, newsletters and face-to-face interactions.

Others

Provide information to their own regulated communities regarding the delivery of their own functions – Takeovers Panel, XRB, FMA, Reserve Bank and IRD.

Delivery of services

Agency Role

MBIE Companies Office

Registers and deregisters companies and other entities and administers the registers

DIA Charities Services

Registers and deregisters charities and operates the charities register.

Takeovers Panel

Regulates mergers and acquisitions of code companies under the Takeovers Act.

FMA

Oversees the regulation of licensed auditors by accredited bodies.

CA ANZ and CPA Australia

The two frontline regulators of auditors and audit firms under the Auditor Regulation Act.

MBIE Insolvency and Trustee Service

Undertakes some company liquidations.

Private sector insolvency advisers and practitioners

Provide professional advice on insolvency law and carry out insolvencies of companies and other entities (liquidations, voluntary administrations, receiverships and compromises).

Compliance and enforcement

Agency Role

MBIE Companies Office

Monitors and enforces the criminal provisions of the Companies Act and other corporate governance system legislation.

DIA Charities Services

Registers and deregisters charities and administers the charities register.

Police and Serious Fraud Office

Take enforcement action in relation to possible criminal activity (eg fraud and false accounting).

Others

The Takeovers Panel, FMA, Reserve Bank and IRD enforce their own regimes.

Collaboration and information-sharing between regulatory agencies

Multilateral collaboration

The Companies Office (the trading name for Business Registries, a business unit of MBIE’s Business Integrity Services Branch) periodically hosts a meeting of the core regulators of the Corporate Governance regulatory system. The inaugural meeting was held in April 2019, and the second in September 2019.

The meetings:

  • coordinate the roles each regulator plays in the system. A draft system charter has been refined and is due for adoption in late 2019.
  • evaluate our changing environment and consider responses needed
  • identify opportunities to strengthen the operation of the system to make it more effective
  • consider the best methods for ongoing engagement between regulators, both strategically and operationally, and for regulators to engage with other stakeholders.

Regulators invited to the meeting are:

  • Financial Markets Authority
  • Department of Internal Affairs
  • Ministry of Justice
  • Inland Revenue Department
  • Serious Fraud Office
  • Takeovers Panel
  • External Reporting Board.

The Companies Office is involved in global collaboration through the Corporate Registers Forum(external link). The aim of the Corporate Registers Forum is to provide members with the opportunity to review the latest developments in corporate business registers internationally and exchange experiences and information on the present and future operation of corporate business registration systems.

MBIE’s business.govt.nz team also collaborates across government and with private sector entities to create content, tools and resources to help small businesses more easily comply with their government requirements and to succeed in their business enterprise.

Bilateral collaboration

The Companies Office and other regulators, domestically and internationally, collaborate on investigation and enforcement action as corporate entities are frequently of interest to multiple agencies. This allows all regulatory matters to be dealt with in a more timely, efficient and effective way through deploying the appropriate powers of the regulators in a coordinated way. Collaboration includes on-the-ground activity such as site visits, sharing information, and regular liaison meetings.

Other formalised collaboration is set out in the following table.

Who we collaborate with What we collaborate on

Regular meetings of the Companies Office and the Financial Markets Authority

These quarterly meetings update both parties on policy and operational developments, identify trends and responses, explore and resolve operational problems, and coordinate stakeholder engagement.

This relationship is supported through a memorandum of understanding whereby we share information from six of our registers with the Authority.

The memorandum of understanding defines the information to be exchanged, operational requirements, and privacy and confidentiality safeguards.

Regular meetings of the Companies Office and the Reserve Bank

These are twice yearly meetings to update one another on matters of mutual interest – policy development and implementation, operations, and developing issues.

Sharing information with IRD

Information pertaining to the corporate governance regulatory system is shared extensively with the Inland Revenue Department within appropriate privacy and confidentiality settings. The multiple current arrangements governing this exchange are being brought together and extended through an Approved Information Sharing Agreement, which is being developed.

The Agreement will enhance protections for privacy and provide more clarity and visibility of the use and sharing of the information.

The Privacy Commissioner is currently being consulted on the draft Agreement. We plan to put the resulting draft Agreement to Government in 2019.

Collaboration with the Australian Securities and Investments Commission

The Companies Office has a programme of technical cooperation with the Commission. We have mutual recognition of banned Directors and a facility for searching across our business registers. The Australian Securities and Investments Commission and the New Zealand Companies Office jointly designed and built an automated information-sharing capability that electronically exchanges information on companies registered in both jurisdictions that the companies would otherwise have to submit twice with two fees.

Cooperation is supported by an annual meeting reviewing policy and technical developments in both jurisdictions for opportunity to enhance effectiveness.

 

Regulated parties and main stakeholders

The regulated parties are:

  • entities:
    • registered under corporate governance regulatory system legislation (600,000 companies and 25,000 other entities)
    • that operate under the Partnership Act
    • directors or officers, and owners or members of those entities
  • all other entities with a New Zealand Business Number (NZBN)(external link)
  • code companies under the Takeovers Act
  • chartered accountants under the New Zealand Institute of Chartered Accountants Act
  • licensed auditors under the Auditor Regulation Act
  • parties to security interests registered on the Personal Property Securities Register (PPSR)(external link).

Main private sector stakeholders include:

  • NZX
  • Chartered Accountants Australia and New Zealand (CA ANZ)
  • the Recovery, Insolvency and Turnaround Association of New Zealand (RITANZ),
  • Institute of Directors and
  • Business NZ.

Processes for engagement with regulated parties and stakeholders

As policy is being developed, engagement takes place through standard policy development and legislative processes, including:

  • through meetings with the key stakeholders and other issue-specific stakeholders, where relevant
  • by releasing issues papers and discussion documents, consulting on these and seeking feedback
  • by releasing exposure drafts of bills and regulations and seeking feedback.

Parliamentary processes for consulting on bills also provide for public engagement.

In addition, MBIE’s business.govt.nz team is establishing and building relationships across the private sector as part of their objective to help small businesses more easily comply with their government requirements. This engagement aims is to help connect small businesses with the wider eco-system of support that is available to them.

In terms of system agencies’ delivery of services, most of this is enabled through call centres and online functionality, for example:

  • provision of information on websites
  • electronic filing of annual returns
  • online registration of security interests on the PPSR.

Other engagement takes place as necessary, for example where MBIE staff members are communicating with individuals in relation to registration or enforcement issues.

System’s fitness for purpose

Effectiveness

System performing well against criteria

System objectives are being achieved. New Zealand was ranked the top country in the world for doing business in the World Bank's Ease of Doing Business reports of 2017, 2018 and 2019. Aspects of the system not covered by the World Bank’s report are well-regarded internationally and domestically as evidenced by the regulatory system assessment completed in 2016.

The healthy state of the system reflects the ongoing focus on system maintenance, at both the policy and operational levels. Significant system stewardship work is currently underway on insolvency issues, director identification, beneficial ownership and modernising the governance structures for Incorporated Societies. On the operational side of the system, additional funding has been provided to increase enforcement capacity and cover the increased demand for registry services.

To maintain the overall effectiveness of the system, ongoing consideration will need to be given to whether New Zealand has developed and maintains the right balance right between the ease of doing business and appropriate levels of accountability.

Efficiency

System performing well against criteria

The 2016 regulatory system assessment found a well- functioning system which is effective and achieves overall outcomes for New Zealand. Key regulators were found to be operating efficiently and there is a strong embedded practice of reaching out to customers to understand and meet their needs.

The Companies Office has recently entered into an MOU with Inland Revenue regarding provision of information in relation to serious offending under the Companies Act and work is underway on an information sharing arrangement which will better enable companies with financial reporting obligations to be identified.

Resilience

System performing well against criteria

The embedded focus on maintenance and stewardship has meant the system has responded well to challenges as they have emerged. Looking forward, the main challenges facing the system are developing a commonly-understood set of system objectives amongst key system players, and maintaining ongoing robust regulatory stewardship in the face of inevitable concerns around the prominent issues of the day. These are not easy tasks given the breadth of the system and number of agencies involved. The development of a regulatory charter as part of the system owner’s response to the 2016 system assessment is likely to have significant positive impact.

Fairness and accountability

System performing well against criteria

Enforcement action for serious breaches of system legal frameworks is generally via the High Court which provides an independent and transparent process with significant appeal rights. However, there is room for improvement in the transparency and communication of the compliance and enforcement strategies of some key system regulators such as the Companies Office.

Information about the system is widely disseminated through a variety of our and other agency channels. Web based registries are subject to ongoing improvement processes flowing from the embedded focus on the needs of customers. This customer focus supports the overall fairness of the system. 

Planned regulatory changes

The timeframes for improvements noted in this section are indicative and may change. We will review this information at least quarterly and update timeframes as required.

Matter name Policy implementation Planned consultation Status

Regulations associated with the Insolvency Practitioners Regulation Act 2019 and the Insolvency Practitioners Regulation (Amendments) Act 2019

Matter type: legislative instruments

The Acts respond to concerns that there are a number of incompetent and/or unethical practitioners, and that practitioners are generally not held to sufficiently high professional standards given their statutory and fiduciary duties.

We will consult with the public, RITANZ and CA ANZ as appropriate on draft regulations that will need to be made before the Acts come into force. The regulations will relate mainly to licensing standards, disclosures by practitioners in interests statements and initial, progress and final reports on individual insolvency administrations.

The Act received Royal Assent on 17 June 2019.

Associated regulations for the licensing scheme and other changes in the Acts are being developed and consulted on.

The licensing scheme and other changes will be brought into force 12 months after the Royal Assent.

Corporate Governance (Transparency and Integrity) Amendment Bill

Matter type: Bill

The objective is to support the integrity of the corporate governance system by (a) requiring companies and limited partnerships to identify their beneficial owners, and (b) introducing a unique identification number for company directors.

An exposure draft of the Bill will be released in Q2 2020.

A discussion document was released in 2018 and MBIE has analysed submissions. Cabinet decisions on the content of the Bill will be sought later in 2019.

Incorporated Societies Bill

Matter type: Bill

Response to Law Commission report on incorporated societies to improve the quality of society governance by modernising the law and making it comprehensive, clear, accessible and enforceable.

Consultation has been completed.

The next step is to seek Cabinet policy decisions. Timing is to be confirmed.

Regulatory Systems (Economic Development) Amendment (No 2) Bill

Matter type: Bill

The Bill proposes minor, technical amendments to the Building Societies Act, Companies Act, Financial Reporting Act, Insolvency Act, Limited Partnerships Act, Personal Property Securities Act and the Takeovers Act.

The Economic Development, Science and Innovation Committee has called for submissions by 28 April 2019.

The Bill has been referred to select committee. It is due to be reported back to the House by 21 August 2019.

Regulatory Systems Amendment Bill 3

Matter type: Bill

The Bill will make minor, technical changes to a number of Acts in this regulatory system.

No consultation is planned prior to the Bill being introduced.

Cabinet decisions on the content of the Bill will be sought in mid-2019.

Insolvency Amendment Bill

Matter type: Bill

The Bill will make a number of amendments to the Companies Act to implement policy arising from the Insolvency Working Group report no. 2 relating to voidable transactions preferential claims and other matters.

There will be public consultation on an exposure draft of the Bill before it is introduced into the House. Subject to changes in priorities, that consultation will take place in the first half of 2020.

Cabinet decisions on the content of the Bill will be sought in mid-2019. The legislation will then be drafted.

Approved Information Sharing Agreement between MBIE and IRD

Matter type: Legislative instrument

Enhance protections for privacy and provide more clarity and visibility of the use and sharing of the information between MBIE’s Companies Office and Insolvency and Trustee Service and IRD

MBIE will consult publicly on the draft agreement once Cabinet has made policy decisions.

Privacy Commissioner is being consulted on draft agreement. Cabinet policy decisions on the draft will be sought in 2019.

Partnership Bill

Matter type: Bill

This is a revision Bill to update out-of-date language in the Partnership Act 1908 and there are no policy changes.

Consultation on the draft Bill has been completed.

Introduction into the House is planned for Q2 2019.

Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Bill

Matter type: Bill

This Bill will make amendments to specific insolvency/creditor provisions in the Corporations (Investigation and Management) Act, Companies Act and Personal Property Securities Act to give priority to derivative creditors.

Consultation on the policy and content of the Bill has been completed.

Cabinet agreement will be sought in early 2019 to introduce the Bill.

Regulations for consumer protection and business registers

Matter type: Legislative Instrument

Eight sets of regulations are to be amended to allow for the collection, inclusion and search of the New Zealand Business Number (NZBN) on registers administered by the Companies Office and consumer protection registers.

None.

Cabinet decisions seeking approval for regulations to be made will be sought in 2019.

Ponzi schemes

Matter type: to be determined

To consider whether Ponzi scheme distributions should continue to be made under the rules for company liquidations or whether to introduce a bespoke regime.

To be determined.

MBIE has analysed submissions on the discussion document released in 2018. However, the work is currently on hold given other priorities.

Climate-related financial disclosures

The Productivity Commission has recommended the introduction of mandatory (on a comply or explain basis) climate-related financial reporting – see R7.4 in Low-emissions Economy (August 2018)(external link)

Subject to Cabinet approval, the Ministry for the Environment and MBIE will jointly release a discussion document on a possible disclosure regime.

The Government response to Low-emissions economy is being finalised and will be published in due course.

Farm Debt Mediation

Matter type: Bill

The Government intends to introduce legislation later in 2019 that will require banks and other secured creditors to offer mediation to farmers before taking enforcement action in relation to a security interest over farmland and other farm assets.

A Farm Debt Mediation Bill will be introduced in Q32019.

The Bill is currently being drafted.

 

Planned service and operational changes

The timeframes for improvements noted in this section are indicative and may change. We will review this information at least quarterly and update timeframes as required.

Business.govt.nz

The major focus is a programme of work that will enable business.govt.nz to reach and understand small businesses so that we can personalise guidance and information to their particular needs and objectives, as well as by industry and region. As part of this we are also working to connect small businesses with the wider eco-system of support that is available to them across government and the private sector, to help improve productivity, wellbeing and sustainability. The products and services from this work programme will be delivered in 2019/20, and will be rolled out regionally. The vision is that small businesses in New Zealand are the best understood and supported in the world.

Business performance is also an area of focus and business.govt.nz is continuing to develop tools and resources to help small businesses improve management capabilities. The New Zealand Business Performance Panel launched in 2018 is now working with business.govt.nz to bring global best practice to New Zealand businesses.

 

The Companies Office

We have enhanced the Disclose Register in June 2019 to enable approved funds passport managers to register offers in New Zealand under the Asia Regional Funds Passport.  

We are working on the possible introduction of Director Identification Numbers and a Beneficial Ownership Register.

Recent new and upgraded online services include:

  • The Smart Investor(external link) online tool, which draws on information in the Disclose Register maintained by MBIE’s Companies Office.  This tool allows investors to search and compare different investment options.
  • Replacement registers for Incorporated Societies and Charitable Trusts.  These have been moved to the new Business Registries platform to join the Personal Property Securities and Limited Partnerships registers.  These new registers are providing improved registering and searching functions.  In the case of the Limited Partnerships Register, online filing of documents is enabled; all the tasks to incorporate and maintain a charitable trust board or an incorporated society can be done online; and reminders of filing dates have been automated. 
  • Improvements have been made to the way persons who alter the Companies Register on behalf of companies are confirmed that give greater security through better identity verification.
  • New Zealand Business Numbers have been incorporated into the Personal Property Securities Register (both for debtors and secured parties), the Limited Partnerships Register and Financial Service Providers Register.  This helps to create more certainty when registering or searching these registers.
  • Improvements have been made to the New Zealand Business Number website and interfaces that make them easier to use and more useful to businesses.
Last updated: 03 April 2019