Treasury questions beefed up trustee powers for Securities Commission

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The Treasury has questioned a proposal to beef up powers that will give the Securities Commission power to direct trustees in how they respond to breaches of trust deeds.

Thursday, March 4th 2010, 12:02AM 1 Comment

by Paul McBeth

In its Regulatory Impact Statement on the Securities Trustees and Statutory Supervisors Bill, the government department says its supports the proposed legislation "except for the requirements for trustees to report breaches in trust deeds in real-time and for the commission to have the power to direct trustees to take a particular course of action to remedy breaches."

It fears the power to direct trustee how to act will "blur the clarity between trustees and the Securities Commission" and says it does not fit will with the proposal to give the regulator the ability to take legal action against trustees, which would likely be exercised at the same time.

The Treasury paper also says the proposed power is "inconsistent with the RBNZ's powers as prudential regulator of non-bank deposit takers," and that it is "unclear why this power is necessary here when it is not considered necessary to ensure appropriate prudential oversight of NBDTs."

The requirement for trustees to inform the regulator of breaches in real-time could lead to "significant compliance costs that are likely to be borne by firms seeking to raise capital."

Commerce Minister Simon Power included trustees in his review of the Securities Act after a report by Companies Registrar Neville Harris in March last year slammed finance companies for acting like "Ponzi schemes" and raised concerns about trustee diligence and accountability.

The bill is yet to have its first reading in Parliament, and will introduce a licensing regime for trustees that will be run by the Securities Commission. It will also remove the automatic right for the six statutorily approved trustees to supervise issuers of debt and some investment schemes.

The new regime is expected to cost $600,000 in the first year, rising to $640,000 in the second year and $660,000 in the third year and beyond, and should be covered by third party fees and levies.

Paul is a staff writer for Good Returns based in Wellington.

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