Application date
The new rules will apply from 1 July 2010 or the date of enactment of the legislation, whichever is later.
Key features
To provide certainty and clarity, the bill creates a new set of rules in section 35 of the KiwiSaver Act to prescribe how those aged under 18 can enrol in KiwiSaver. The proposed new rules are:
- Children under 16 years old may only be enrolled by their legal guardian(s), and may not enrol themselves in KiwiSaver.
- Children aged 16 to 17, with a legal guardian, must co-sign with their legal guardian(s) in order to enrol in KiwiSaver. They may not enrol themselves, and a legal guardian will not be able to enrol a child aged 16 to 17 in KiwiSaver without the child’s consent.
- Children aged 16 to 17 without a legal guardian may opt into KiwiSaver by contracting directly with a scheme provider. This means that children aged 16 to 17 who are married, in a civil union, or living with a de facto partner, will not need to co-sign in order to opt into KiwiSaver.
A contract properly entered into on behalf of an under 18-year-old will be treated as if the child is 18 – that is, the contract will be binding. The proposed amendments will mean that a purported enrolment will be invalid if, for example, an under 16-year-old is enrolled by someone other than their legal guardian, or if a 16 to 17-year-old with a legal guardian is not a co-signatory.
If an under 18-year-old has more than one legal guardian, all guardians must act jointly in order to enrol the child in KiwiSaver. This is consistent with the rules around the exercise of guardianship in the Care of Children Act 2004.
Background
The KiwiSaver Act 2006 provides that children under 18 years old are not subject to automatic enrolment, and can only opt into KiwiSaver by contracting directly with a provider. The KiwiSaver Act does not prescribe who can contract with a scheme provider on behalf of a child under 18 years old. It is at the discretion of the provider whether an application is accepted.
The lack of clarity about who can enrol children in KiwiSaver has led to complaints and disputes from parents and guardians, as well as from children who have been enrolled without their consent. Children and their parents can currently contest an enrolment on the grounds that the contract was non-binding.