PART 16
-
ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES
Division 2
-
Obligations of actuaries and auditors
History
Div 2 heading inserted by No 25 of 2008, s 3 and Sch 1 item 60, effective 26 May 2008.
SECTION 129
OBLIGATIONS OF ACTUARIES AND AUDITORS
-
COMPLIANCE
129(1)
When section applies.
This section applies to a person in relation to a superannuation entity if:
(aa)
the person is an individual; and
(a)
the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:
(i)
this Act, the regulations or the prudential standards;
(ii)
if the entity is a registrable superannuation entity
-
the
Financial Sector (Collection of Data) Act 2001
or the
Financial Accountability Regime Act 2023
;
(iii)
if the entity is a registrable superannuation entity
-
a provision of the
Corporations Act 2001
listed in a subparagraph of paragraph (b) of the definition of
regulatory provision
in section
38A
of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and
(b)
the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the
Financial Sector (Collection of Data) Act 2001
in relation to the entity.
History
S 129(1) amended by No 68 of 2023, s 3 and Sch 1 item 88, by inserting
"
or the
Financial Accountability Regime Act 2023
"
in para (a)(ii), effective 15 September 2023.
S 129(1) amended by No 29 of 2023, s 3 and Sch 6 item 230, by inserting para (aa), effective 1 July 2023.
S 129(1) amended by No 61 of 2013, s 3 and Sch 1 items 78 and 79, by substituting
"
, the regulations or the prudential standards
"
for
"
or the regulations
"
in para (a)(i) and substituting
"
, the regulations, the prudential standards
"
for
"
or the regulations
"
in para (b), effective 1 July 2013.
S 129(1) amended by No 154 of 2007, s 3 and Sch 3 item 10, by substituting para (a), effective 24 September 2007. Para (a) formerly read:
(a)
the person forms the opinion that it is likely that a contravention of this Act or the regulations or the
Financial Sector (Collection of Data) Act 2001
may have occurred, may be occurring, or may occur, in relation to the entity; and
S 129(1) amended by No 121 of 2001, s 3 and Sch 2 item 136, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
after
"
regulations
"
in paras (a) and (b), effective 1 July 2002. For application provision see history note under s 36(1).
S 129(1) amended by No 144 of 1995.
129(2)
Section does not apply if the person believes that his or her opinion is not relevant to the performance of actuarial or audit functions.
This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.
History
S 129(2) amended by No 144 of 1995.
129(3)
Trustee and Regulator to be told about the matter.
Subject to subsection
(3A)
, the person must, immediately after forming the opinion mentioned in paragraph
(1)(a)
:
(a)
tell a trustee of the entity about the matter in writing; and
(b)
if the superannuation entity is not a self managed superannuation fund and the contravention about which the person has formed the opinion mentioned in paragraph
(1)(a)
is of such a nature that it may affect the interests of members or beneficiaries of the entity
-
tell the Regulator about the matter in writing; and
(c)
if the superannuation entity is a self managed superannuation fund and the matter is specified in the approved form
-
tell the Regulator about the matter in the approved form.
Note:
For specification by class, see subsection
33(3AB)
of the
Acts Interpretation Act 1901
.
History
S 129(3) amended by No 46 of 2011, s 3 and Sch 2 item 1094, by substituting
"
subsection 33(3AB)
"
for
"
subsection 46(3)
"
in the note at the end of para (c), effective 27 December 2011. For saving and transitional provisions see note under s
15B(3)
.
S 129(3) amended by No 154 of 2007, s 3 and Sch 1 Pt 2 item 242, by substituting
"
immediately
"
for
"
as soon as practicable
"
, effective 1 January 2008.
S 129(3) amended by No 9 of 2007, s 3 and Sch 5 items 20 to 22, by substituting
"
if the superannuation entity is not a self managed superannuation fund and the
"
for
"
if the
"
, substituting
"
writing; and
"
for
"
writing.
"
and inserting para (c), applicable to the 2007-2008 income year and later years.
S 129(3) substituted by No 53 of 2004, s 3 and Sch 3 item 6, effective 1 July 2004. No 53 of 2004, s 3 and Sch 3 item 11 contains the following transitional provision:
Transitional provision
11(2)
On and after the commencement of this Part:
(a)
the amendments made by this Part do not apply in relation to a matter that was told to the trustee of a superannuation entity, under section
129
or
130
of the
Superannuation Industry (Supervision) Act 1993
, before that commencement; and
(b)
section
129
or
130
(as the case requires) of that Act, as in force immediately before that commencement, continues to apply in relation to that matter.
S 129(3) formerly read:
129(3)
Trustee to be told about the contravention.
Subject to subsection (3A), the person must tell the trustee of the entity about the matter in writing.
S 129(3) substituted by No 144 of 1995.
129(3AA)
(Repealed by No 46 of 2011)
History
S 129(3AA) repealed by No 46 of 2011, s 3 and Sch 2 item 1095, effective 27 December 2011. For saving and transitional provisions see note under s
15B(3)
. S 129(3AA) formerly read:
129(3AA)
To avoid doubt, for the purposes of paragraph (3)(c), the approved form may specify matters by reference to a class or classes of matters.
S 129(3AA) inserted by No 9 of 2007, s 3 and Sch 5 item 23, applicable to the 2007-2008 income year and later years.
129(3A)
The person may not have to tell a trustee or the Regulator about the matter.
The person does not have to:
(a)
tell a trustee of the entity about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person; or
(b)
tell the Regulator about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(3A) formerly read:
129(3A)
The person may not have to tell the trustee about the contravention.
The person does not have to tell the trustee of the entity about the matter if:
(a)
the person has been told by another person who is subject to section
129
that:
(i)
that other person has already told the trustee about the matter; and
(ii)
that other person has also told the Regulator about the matter or has given the trustee a written notice under subsection
129(5)
; and
(b)
the first-mentioned person has no reason to disbelieve that other person.
S 129(3A) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 129(3A) amended by No 54 of 1998 and inserted by No 144 of 1995.
129(3B)
Penalties for misinformation.
A person (the
first person
) commits an offence if:
(a)
this section applies to the first person; and
(b)
the first person is aware of a matter that must, under this section, be told to a trustee; and
(c)
the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and
(d)
the first person has not done what the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(3B) formerly read:
129(3B)
Penalty for misleading information.
If:
(a)
this section applies to a person; and
(b)
that person is aware of a matter that must, under this section, be told to the trustee; and
(c)
the person tells another person that he or she has taken the action described in subparagraphs (3A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
S 129(3B) amended by No 31 of 2001, s 3 and Sch 1 item 181, by omitting
"
knowingly
"
after
"
the person
"
(first occurring) in para (c), effective 15 December 2001.
S 129(3B) inserted by No 144 of 1995.
129(3C)
A person (the
first person
) commits an offence if:
(a)
this section applies to the first person; and
(b)
the first person is aware of a matter that must, under this section, be told to the Regulator; and
(c)
the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and
(d)
the first person has not done what the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3).
129(4)
No civil liability for telling about a matter.
A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(4) formerly read:
129(4)
The Regulator may be told.
The person may tell the Regulator about the matter. The person is not liable in a civil action or civil proceeding in relation to the telling.
S 129(4) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 129(4) amended by No 54 of 1998 and No 144 of 1995.
129(5)
Offences.
A person commits an offence if the person contravenes subsection
(3)
.
Penalty: 50 penalty units.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(5) formerly read:
129(5)
Trustee
'
s report.
If a person:
(a)
tells the trustee about the matter; and
(b)
does not tell the Regulator about the matter;
the person must, as soon as practicable, give the trustee a written notice requesting the trustee to give the person, before the end of the period specified in the notice, a written report about the action (if any) the trustee has taken, or proposes to take, to deal with the matter. The period specified in the notice must be reasonable. The trustee must comply with the request.
S 129(5) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 129(5) amended by No 54 of 1998 and No 144 of 1995.
129(6)
A person commits an offence if the person contravenes subsection
(3)
. This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1:
For
strict liability
, see section
6.1
of the
Criminal Code
.
Note 2:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(6) formerly read:
129(6)
Report to the Regulator.
If:
(a)
a person makes such a request; and
(b)
either:
(i)
the trustee does not comply with the request; or
(ii)
the trustee complies with the request, but the person is dissatisfied with:
(A)
the action taken, or proposed to be taken, by the trustee to deal with the matter concerned; or
(B)
the inaction of the trustee in relation to the matter concerned;
the person must give the Regulator a written report about the matter as soon as practicable after:
(c)
if subparagraph (b)(i) applies
-
the expiry of the deadline for the receipt of the report; or
(d)
if subparagraph (b)(ii) applies
-
the person becomes dissatisfied as mentioned in that subparagraph.
S 129(6) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 129(6) amended by No 54 of 1998 and No 144 of 1995.
129(7)
(Repealed by No 53 of 2004)
History
S 129(3A), (3B), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(7) formerly read:
129(7)
Offence.
A person who intentionally or recklessly contravenes subsection (3), (5) or (6) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
S 129(7) amended by No 31 of 2001, s 3 and Sch 1 item 182, by inserting the note at the end, effective 15 December 2001.
View history note
Hide history note