Superannuation Industry (Supervision) Act 1993

PART 16 - ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES  

Division 3 - Disqualifying and removing actuaries and auditors  

SECTION 131AA   APRA MAY DIRECT REMOVAL OF AUDITOR OR ACTUARY  

131AA(1)    

APRA may, if satisfied there is a ground under subsection (2) , give a written direction to the trustee or trustees of a superannuation entity that is not a self managed superannuation fund to end the appointment of a person as:

(a)    

the auditor of the superannuation entity; or

(b)    the actuary of the superannuation entity.

Note:

See also subsection (11) .

131AA(2)    
The grounds for giving a direction to end a person ' s appointment are:

(a)    

the person is disqualified under section 130D , 130EA or 131 from being, or acting as, an auditor or actuary of the superannuation entity; or

(aa)    

if the person is a firm or company - the lead auditor for an audit of a registrable superannuation entity that is or was conducted by the person:

(i) is disqualified under section 130D ; or

(ii) did not meet the relevant eligibility criteria set out in the prudential standards; or

(iii) is not a fit and proper person to be a lead auditor; or

(b)    

if the person is an individual - the person is not a fit and proper person to hold the appointment; or

(ba)    

the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or

(c)    

the person has failed to perform adequately and properly the duties or functions of the appointment under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 .

131AA(2A)    

In deciding, for the purposes of paragraph (2)(b) , whether a person is a fit and proper person to hold an appointment, APRA may take into account any criteria for fitness and propriety that are relevant to the appointment set out in the prudential standards.

131AA(3)    
Before directing a trustee or trustees to end a person ' s appointment, APRA must:

(a)    give written notice to:

(i) the trustee or trustees; and

(ii) the person; and

(b)    give the trustee or trustees and the person a reasonable opportunity to make submissions on the matter.

131AA(4)    
The notice must include a statement that any submissions in response to the notice may be discussed by APRA with other persons as mentioned in paragraph (5)(b) .

131AA(5)    
If a submission is made in response to the notice, APRA:

(a)    must have regard to the submission; and

(b)    may discuss any matter contained in the submission with any persons APRA considers appropriate for the purpose of assessing the truth of the matter.

131AA(6)    
A direction to end a person ' s appointment takes effect on the day specified in the direction, which must be at least 7 days after the direction is made.

131AA(6A)    

If APRA directs a trustee or trustees to end a person ' s appointment as an auditor of a registrable superannuation entity, APRA must:

(a)    notify ASIC of the direction; and

(b)    do so as soon as practicable after giving the direction.

131AA(7)    
If APRA directs a trustee or trustees to end a person ' s appointment, APRA must give the trustee or trustees and the person a copy of the direction.

131AA(8)    
A direction to end a person ' s appointment is not a legislative instrument.

131AA(9)    
A trustee commits an offence if:

(a)    the trustee does or fails to do an act; and

(b)    by doing or failing to do the act, the trustee fails to comply with a direction under this section.

Penalty: 60 penalty units.

131AA(10)    
Strict liability applies to subsection (9) .

Note:

For strict liability , see section 6.1 of the Criminal Code .

Firm

131AA(11)    

This section applies to a firm as if it were a person.