Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.3 - CORPORATE GOVERNANCE OF CCIVs  

Division 4 - Compliance plan for retail CCIVs  

Subdivision B - Auditing the compliance plan  

SECTION 1226H   CONTRAVENTIONS BY AUDITOR  

Contravention by individual auditor

1226H(1)    
An individual auditor conducting an audit of a compliance plan contravenes this subsection if:

(a)    the auditor is aware of circumstances that:

(i) the auditor has reasonable grounds to suspect amount to a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (7) ); or

(iii) amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

(b)    if subparagraph (a)(i) applies:

(i) the contravention is a significant one; or

(ii) the contravention is not a significant one and the auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor ' s report or bringing it to the attention of the directors; and

(c)    the auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.

Contravention by audit company

1226H(2)    
An audit company conducting an audit of a compliance plan contravenes this subsection if:

(a)    the lead auditor for the audit is aware of circumstances that:

(i) the lead auditor has reasonable grounds to suspect amount to a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (7) ); or

(iii) amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

(b)    if subparagraph (a)(i) applies:

(i) the contravention is a significant one; or

(ii) the contravention is not a significant one and the lead auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor ' s report or bringing it to the attention of the directors; and

(c)    the lead auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.

Contravention by lead auditor

1226H(3)    
A person contravenes this subsection if:

(a)    the person is the lead auditor for an audit of a compliance plan; and

(b)    the person is aware of circumstances that:

(i) the person has reasonable grounds to suspect amount to a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (7) ); or

(iii) amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

(c)    if subparagraph (b)(i) applies:

(i) the contravention is a significant one; or

(ii) the contravention is not a significant one and the person believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor ' s report or bringing it to the attention of the directors; and

(d)    the person does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.

Significant contraventions

1226H(4)    
In determining for the purposes of this section whether a contravention of this Act is a significant one, have regard to:

(a)    the level of penalty provided for in relation to the contravention; and

(b)    the effect that the contravention has, or may have, on:

(i) the overall financial position of a sub-fund of the CCIV; or

(ii) the adequacy of the information available about the overall financial position of a sub-fund of the CCIV; and

(c)    any other relevant matter.

1226H(5)    
Without limiting paragraph (4)(a) , a penalty provided for in relation to a contravention of a provision of Part 2M.2 or 2M.3 includes a penalty for failing to take reasonable steps to comply with, or to secure compliance with, that provision imposed on each of the following:

(a)    the corporate director, because of the operation of sections 344 and 1232T ;

(b)    a director of the corporate director, because of the operation of sections 344 and 1232T .

Fault-based offence

1226H(6)    
A person commits an offence if the person contravenes subsection (1) , (2) or (3) .

Person involved in audit

1226H(7)    
In this section:

person involved in the conduct of an audit
means:

(a) the auditor; or

(b) the lead auditor for the audit; or

(c) the review auditor for the audit; or

(d) a professional member of the audit team for the audit; or

(e) any other person involved in the conduct of the audit.