Implementation dates for the remaining provisions of the Companies Amendment Act 2014 (Amendment Act) have now been given under the Companies Amendment Act 2014 Commencement Order 2014. In addition, the Companies Act 1993 Amendment Regulations (No 2) 2014 (the regulations) have been enacted to address various changes required for the full implementation of the Amendment Act.
New ‘resident director’ requirements
One of the key changes introduced by the Amendment Act is the requirement for all New Zealand incorporated companies to have:
- a director who lives in New Zealand, or
- a director who lives in, and who is also a director of a company incorporated in, an “enforcement country”.
Under the Commencement Order this requirement comes into force on 1 May 2015. Those companies incorporated before that date have a further 180 days to comply with this new requirement (that is, all existing New Zealand companies as at 1 May 2015 must comply with the new resident director requirements by 28 October 2015).
The regulations prescribe Australia as an “enforcement country” for the purposes of meeting this requirement. This means if a New Zealand company has a director who lives in Australia and is also a director of an Australian company (provided that company is not operating as an overseas company in Australia), then the New Zealand company will comply with the resident director requirement.
At this stage, no other country has been prescribed as an “enforcement country”.
Staggered enforcement dates for other provisions of the Amendment Act
The other remaining provisions of the Amendment Act will come into force as follows:
- On 1 September 2014, the amendments to section 151 of the Companies Act (Qualifications of directors) which are consequential to the amendments to the Limited Partnerships Act 2008 come into force. These amendments will disqualify a person who has been prohibited from being a general partner of a New Zealand or an overseas limited partnership from being a director of a New Zealand registered company;
- On 11 September 2014, the various amendments relating to offence provisions for failures to comply with auditor provisions, financial reporting matters and ultimate holding company information under the Companies Act come into force; and
- On 1 May 2015, the remaining amendments in Part 2 and Part 4 of the Companies Amendment Act come into force. These relate to the measures introduced to ensure New Zealand companies are not used for overseas criminal purposes (such as, the requirement to provide details of directors’ date and place of birth information and ultimate holding company information) as well as the new powers given to the Registrar of Companies to ensure compliance with the new measures and to meet New Zealand’s obligations under the FATF Recommendations (the internationally endorsed global standards against money laundering and terrorist financing as adopted by FATF in 2012).
As noted in the previous issue of Corporate Reporter, the amendments relating to the new criminal offences for directors and the changes to the amalgamation provisions in Parts 13 and 15 were brought into force last month after the Act received its Royal assent.
For more information on the changes introduced by the Companies Amendment Act see our June client update: New rules for companies and limited partnerships in operation soon.
Changes introduced by the regulations
The regulations amend the Companies Act 1993 Regulations 1994 to:
- prescribe a fee for registering financial statements and auditors’ reports (which comes into force on 11 September 2014); and
- revise various prescribed forms under the Companies Act, namely:
- Form 1 (Application for registration of company) and Form 10 (Notice of change of directors and particulars of directors) to require the dates and places of birth of directors and to require additional information for directors who reside in Australia;
- Form 1 and Form 12 (Annual Return) to require certain information on a company’s ultimate holding company;
- Form 2 (Consent and certificate of director or directors of proposed company), Form 9 (Consent and certificate of director), and Form 13 (Consent and certificate of director or directors of amalgamated or proposed company) to update the notes that explain who is disqualified from being a director; and
- provide a new Form 24 (Notice of change of ultimate holding company) for giving notice of a change of a company’s ultimate holding company.
The changes to Forms 2, 9 and 13 come into force on 1 September 2014. The other remaining changes (including one further amendment to Forms 2, 9 and 13) come into force on 1 May 2015.