FMA's busy first year keeping industry clean

Sean Hughes. Photo / Mark Mitchell

When Sean Hughes arrived back in New Zealand 16 months ago all he heard about was the collapse of the finance company industry.

The ex-pat Kiwi was brought back home to head up new regulator the Financial Markets Authority in a bid by the Government to help overhaul the industry and restore confidence to "mum and dad" investors.

On May 1, the FMA will celebrate its first birthday. Hughes says he is pleased with the progress the organisation has made but: "It's been no picnic."

The FMA took over the Securities Commission as well as services monitored by the Government Actuary and part of the work carried out by the Ministry of Economic Development.

It was given stronger powers including the right to take civil action on behalf of investors, prevent products from being structured to avoid supervision, enhanced warning powers on low-ball offers and the ability to undertake real-time surveillance of activity on the New Zealand sharemarket.

Hughes says he came into the job faced with an instant call to action.

"There was a big cry for something to be done in the wake of the finance company collapses and the perception that the last model didn't work."

There were 23 investigations open when the FMA was set up but Hughes says he wasn't handed well-advanced court cases.

"People thought we had inherited 23 ready-to-go court cases. There were one or two quite well advanced investigations and a long-list of other potentials. To some extent we started from scratch."

But before he could even start making traction on the cases Hughes had to build up the organisation underneath him.

The FMA set up a new office in Auckland, meeting the call from industry to have a stronger presence in New Zealand's main business hub.

By June 30 it will have 125 staff across two offices almost double the 65 staff it inherited when it took over the Securities Commission. Around 60 per cent will be Auckland-based and many have come from the corporate sector.

Hughes has also formed a new leadership team which is split between the Wellington and Auckland offices.

He has done it on a budget which is not much more than what the Securities Commission had. In its last year the commission had around $16 million to play with. The FMA has been given $23 million to $26 million each year over the first three years. But some of that is transitional funding which includes money for a new IT system and other one-off set up costs.

Hughes admits that by the end of the third year in May 2014 he will be running a "very tight ship".

He is concerned there could be a budget blow-out for litigation costs which are an unknown factor.

He says his options could potentially include saving costs from other parts of the organisation, delaying court action or going back to the Government for a hand-out, none of which are favourable options.

"At the moment our funding is adequate for what we need to do."

It has been a successful year for the FMA in terms of the litigation it has taken.

"So far we have won every case. But I don't think for a moment we will win every case in the future."

While burned investors might be eagerly waiting to see what punishment is meted out to failed finance company directors Hughes sees it as past baggage for the FMA.

"If you put the enforcement stuff to one side - that for me is very much backward looking."

Hughes has set his sights on being a top-of-the-cliff regulator through setting new standards across the finance industry.

First off the mark was the licensing of financial advisers in July last year. There are now around 2000 authorised financial advisers. Hughes says the FMA is now on its third or fourth round of monitoring to check advisers are meeting the new standards and it is about to toughen up on its stance.

Advisers who have up until now been told what they need to do to get up to scratch and given time to do so will face a harder line.

Next will be the licensing of auditors by July 1 followed by trustees by September 1.

The FMA began using its new powers almost from the day it started, putting a stop order on a fund raising by Geneva Finance and issuing a warning to those being targeted by low-ball offers made by Bernard Whimp. But rather than stamping out low-ball offers two new companies have since launched into the market - Stock and Share trading company and Share Buyers.

Hughes says there is little it can do to stop the offers.

"It is a frustration for us. Each time we need to contact the company and insist they include a warning. But short of holding the hands of investors there is nothing we can do."

He has been very clear that the regulator is not here to provide capital guarantees or protect investors from the risks involved with investing.

He is keen to make it easier for investors to do that and the FMA has already begun to give guidance to those who want to raise money from the public.

"Where I think we are making a difference is we have been very keen to get guidance out there."

It's a move which has been applauded by the industry but has not been without hiccups.

A guidance note on disclosure in investment statements and prospectuses created an out-cry from the industry which felt the FMA was being too prescriptive and possibly setting new legal standards ahead of a re-write of the securities law, which is due to be completed by the end of this year. More than 60 parties submitted to the consultation document resulting in a second round of consultation.

Hughes says he also wants the FMA to spend more time looking forward at preventative measures.

So far the FMA has yet to show any major moves in stopping the next potential disaster to hit investors but it still has a relatively new team. A new head of enforcement and head of strategic intelligence only started in January.

The FMA was also charged with helping to broaden New Zealand's capital markets.

The biggest boost to the sharemarket will kick-off later this year with partial asset sales of the state-owned enterprises. First off the blocks is Mighty River Power which is expected to float around September.

The floats are expected to be widely supported by "mum and dad" investors but questions are being raised about how small-time investors are to get advice.

Advisers say an unintended consequence of the new legislation means they must spend more time assessing their clients' personal financial situations and dealing with paperwork making small-time investors, including those in KiwiSaver, uneconomical.

The cost of giving advice now means there is a gap at the bottom end of the market - an area where people potentially most need advice.

Hughes says he has dealt with the issue before at Australian regulator ASIC because of the large number of low-income earners compulsorily enrolled in the superannuation scheme.

"It leads to the fees versus commission debate. It's probably most acute around KiwiSaver. There are some options there where there could be a rebate of commission to investors which would give no disadvantage in seeking advice."

He said the FMA was keen to work with the Commission for Financial Literacy and Retirement Income and default KiwiSaver providers on the issue.

"There should be some form of low-cost generic advice available to them so at least people have a realistic choice."

Hughes said one of the best lessons people could give themselves was to get hold of the annual or half-yearly statement and see how the performance of the investment was generated.

"I don't think there is a single answer. But what we want to do is not leave them out in the cold."

He also sees New Zealand's future in having fewer regulators. Presently the financial industry is overseen by the Reserve Bank, the FMA, the Serious Fraud Office, and the stock exchange. Hughes believes it is too many for the size of the market.

On a personal level Hughes would also like to see closer ties to Australia to allow investors greater access to products not presently offered in New Zealand.

"We just don't have the same range of product choices which is inevitable from the size of the market and the money there to invest in it.

"We in New Zealand need to put the foot on the floor with a single market. A lot has been done in the 29 years since closer economic relations was set up with Australia.

"If we want to increase the range of product offerings we need to speed up opening the barriers with Australia."

FMA's wins

September 2011: Three Nathans Finance directors found guilty of making untrue statements in a prospectus and investment statement.

October 2011: Bridgecorp chairman Bruce Davidson gets nine months home detention after being found guilty of misleading investors in offer documents.

December 2011: National Finance boss Trevor Allan Ludlow pleads guilty to misleading investors. He has nine months added to a five year seven month prison term for a case taken against him by the SFO.

February 2012: Four Lombard Finance directors, including former ministers of justice Doug Graham and Bill Jeffries, found guilty on four out of five charges relating to making untrue statements in a 2007 prospectus, investment statement and advertising material.

April 2012: Bridgecorp director Rod Petricevic found guilty on 18 charges for misleading investors and of knowingly making false statements that Bridgecorp had never missed a payment of interest or principal. Yesterday he was sentenced to 6 1/2 years in jail.