Information on applying for a Code exemption
The Authority has the power to grant an exemption to an individual participant under section 11 of the Act. Some guidance about applying for an exemption is given below, together with an exemption application form.
- What is an exemption?
- What laws can the Authority give an exception from?
- Who can apply?
- When is an exemption appropriate?
- Do you need a lawyer to apply for an exemption?
- How do I apply for an exemption?
- What is required in an application for an exemption?
- How long does it take?
- What steps are involved?
- How do we find out the outcome of our application for exemption?
- Where can we get a copy of the notice?
An exemption is a temporary release from an obligation in the Code. It is intended, for example, to provide the participant time to become compliant with the Code, or to suggest a Code amendment.
You may apply to the Authority for an exemption from compliance with any provision of the Code. Exemptions can also be sought from the obligation to register as a participant, under section 10 of the Act, or from compliance with Part 3 of the Act, under section 90 of the Act. This page of our website only provides information about exemptions from compliance with provisions of the Code.
Exemptions are approved on a purely case by case basis. Approval of an exemption does not create a precedent for future applications.
Any participant can apply for an exemption. The Act sets out who is a participant.
The Authority does not generally offer advice on whether an exemption is potentially appropriate in a participant's circumstances; this is something that participants should identify for themselves.
The Authority asks for the applicant's reasons for making the application. This is to ensure that the Authority has a good understanding of all the practical consequences of granting the exemption. Once you make an application, Authority staff may discuss the circumstances with you, and may identify other options that are available to meet your compliance obligations.
Compliance with the Code involves issues about the interpretation and application of the law. Where these kinds of complexities arise, we recommend that you seek legal advice before making an application. The Authority expects that in most cases the reasons underlying an application will be practical ones. In those cases legal advice may not be necessary. If you do want to involve a lawyer you may do so in any case.
Your application should be in writing on the application form and addressed to the General Manager Market Services. This form should be emailed to firstname.lastname@example.org. If you prefer, you could send your application as a hard copy. A hard copy of your application may also be faxed. Our postal address and fax number are on our Contact Us page.
We will acknowledge receipt of your application. If you do not receive this acknowledgement, please contact us on 04 460 8860 or email@example.com.
The application form sets out the format for an exemption application. We recommend that you follow the format and provide as much information as possible to avoid delays that may be caused by an incomplete application and to ensure we have the appropriate information to assess your application.
The time it takes to process an application depends on whether any difficult questions arise. You need to let us have all the information promptly and allow us sufficient time to process the application. Processing time depends on the nature of the application and the resources available within the Authority when you apply. If your exemption is granted, time also has to be allowed for publishing it in the Gazette.
The table below sets out the deadlines for exemption applications and the earliest from which an exemption, if approved, can apply. We will use reasonable endeavors to process your application as soon as possible, but there is no guarantee that an application submitted close to the deadline will make the relevant Compliance Committee meeting, especially if there is incomplete information, the requested exemption may impact on other participants, or there are complex Code provisions to be assessed.
As exemptions cannot be backdated, nor can they excuse a breach of the Code, please ensure you make your application well before you need the exemption, and also ensure you have time to make alternative arrangements if your application is declined. All exemptions are assessed on a case by case basis. Submission of an application does not guarantee it will be approved by the Authority.
If your application is urgent, please provide a timeframe within which (a) a decision is requested, and (b) any exemption granted needs to be Gazetted. Please also provide your reasons for wanting us to consider your request urgently. There is no guarantee that urgent applications can be processed more quickly than the dates in the below table. Authority staff will use best endeavours to submit any exemption application for the first available Compliance Committee meeting after the relevant deadline. However, in some circumstances this may not be possible and the exemption paper may be deferred until the next meeting.
|2018 deadlines for receipt of application to market operations inbox||If decided by Compliance Committee (CC) and not subsequently referred to the Board||If CC considers the exemption significant and refers it to the Board for final decision|
|CC meeting date||Gazette date||Board meeting||Gazette date|
|3 January 2018||7 February 2018||13 February||5 April 2018||11 April|
|16 March 2018||2 May 2018||8 May||28 June 2018||5 July|
|11 May 2018||28 June 2018||5 July||1 August 2018||7 August|
|15 June 2018||1 August 2018||7 August||3 October 2018||9 October|
|17 August 2018||3 October 2018||9 October||4 December 2018||10 December|
|19 October 2018||4 December 2018||10 December||Early 2019||Early 2019|
- Application considered by staff
Your application is considered by Authority staff, who will prepare a recommendation for Members of the Authority to consider. You may be asked to provide further information at this stage. This process is sped up when the applicant provides quality information at the time of application, and responds to queries promptly.
- Consideration by Authority Members
When the recommendation is finalised, it is put to the Compliance Committee for its consideration. If the Compliance Committee considers the exemption application to be significant, it will refer it to the Authority Board for its consideration.
- Notice drafted by staff
If the application is approved, Authority staff prepare the exemption Gazette notice.
- Notification in the New Zealand Gazette
The Authority must give notice of the exemption in the Gazette, which is published each Thursday. If a notice is not ready in time to meet the midday Tuesday deadline for the Gazette, it may be possible to arrange for a supplementary Gazette to be published at your cost. A supplementary Gazette costs up to $700 including GST. An exemption does not come into force until at least the day after it has been notified in the Gazette.
The Authority will also publish the exemptions that have been approved on its website.
Authority staff will endeavour to advise you as soon as they know if your application for exemption has been granted or not. You should check the Gazette before seeking to rely on an exemption notice.
Gazette notices are available on-line from the Department of Internal Affairs. The website offers a searchable database of all Gazette notices from September 1993.
The Authority also publishes extracts of the gazette notice on its website as soon as practical after it is gazetted.
Exemption Policy Note
The contents of applications for exemption are subject to the Official Information Act 1982 and the Privacy Act 1993. If a request is received under those Acts for information contained in an application, the Authority is required to consider release of the application, in whole or in part, in terms of the criteria set out in these Acts. In providing your application, please advise if you have any objection to the release of any information contained in your application, and, if you do object, the parts of your application you would wish withheld, and the grounds for withholding. In addition, information in applications will be discussed with the market operation service providers as appropriate. In providing your application, please advise if you have any objections to the release of any information contained in your application to market operation service providers and the reasons for those objections.