Financial Sector Legislation Amendment (Prudential Refinements and Other Measures) Act 2010 (82 of 2010)

Schedule 1   Amendment of the Banking Act 1959

Part 1   Amendments

38   At the end of Division 2A of Part II

Add:

16D Appointed auditor must notify APRA of attempts to unduly influence etc. the appointed auditor

(1) If an appointed auditor of an ADI or authorised NOHC is aware of circumstances that amount to:

(a) an attempt by any person to unduly influence, coerce, manipulate or mislead the appointed auditor in connection with the performance of the appointed auditor's functions or duties; or

(b) an attempt by any person to otherwise interfere with the performance of the appointed auditor's functions or duties;

the appointed auditor must notify APRA in writing of those circumstances as soon as practicable, and in any case within 28 days, after the appointed auditor becomes aware of those circumstances.

(2) An appointed auditor commits an offence if the appointed auditor contravenes subsection (1).

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

16E Giving false or misleading information to auditor

Offence - person knows the information is false or misleading etc.

(1) A person commits an offence if:

(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and

(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and

(c) the information relates to the affairs of the body corporate; and

(d) the person knows that the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 5 years or 200 penalty units, or both.

Offence - person fails to ensure the information is not false or misleading etc.

(2) A person commits an offence if:

(a) the person is an employee or officer of a body corporate that is an ADI or authorised NOHC; and

(b) the person gives information, or allows information to be given, to an auditor of the body corporate; and

(c) the information relates to the affairs of the body corporate; and

(d) the information:

(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect; and

(e) the person did not take reasonable steps to ensure that the information:

(i) was not false or misleading in a material particular; or

(ii) was not missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 2 years or 100 penalty units, or both.

Determining whether information is false or misleading

(3) If information is given to the appointed auditor in response to a question asked by the appointed auditor, the information and the question must be considered together in determining whether the information is false or misleading.