Corporations Act 2001
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Hide history noteCCH note - modifying legislative instruments: The application of Division 3 is affected by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Externally-Administered Bodies) Instrument 2015/251.
For legislative instruments or class orders before 1 January 2022 that affect the application of Division 3, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
Note: This Division applies to sub-funds of retail CCIVs in a modified form: see section 1232G .
CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.
Contravention by individual auditor
307C(1)
If an individual auditor conducts: (a) an audit or review of the financial report for a financial year; or (b) an audit or review of the financial report for a half-year; or (ba) an audit of the sustainability report for the financial year;
the individual auditor must give the directors of the company, registered scheme, registrable superannuation entity or disclosing entity:
(c) a written declaration that, to the best of the individual auditor ' s knowledge and belief, there have been:
(i) no contraventions of the auditor independence requirements of this Act in relation to the audit or review; and
(d) a written declaration that, to the best of the individual auditor ' s knowledge and belief, the only contraventions of:
(ii) no contraventions of any applicable code of professional conduct in relation to the audit or review; or
(i) the auditor independence requirements of this Act in relation to the audit or review; or
are those contraventions details of which are set out in the declaration.
(ii) any applicable code of professional conduct in relation to the audit or review;
307C(2)
An offence based on subsection (1) is an offence of strict liability.
Note: For strict liability see section 6.1 of the Criminal Code .
Contravention by lead auditor
307C(3)
If an audit firm or audit company conducts: (a) an audit or review of the financial report for a financial year; or (b) an audit or review of the financial report for a half-year; or (ba) an audit of the sustainability report for the financial year;
the lead auditor for the audit must give the directors of the company, registered scheme, registrable superannuation entity or disclosing entity:
(c) a written declaration that, to the best of the lead auditor ' s knowledge and belief, there have been:
(i) no contraventions of the auditor independence requirements of this Act in relation to the audit or review; and
(d) a written declaration that, to the best of the lead auditor ' s knowledge and belief, the only contraventions of:
(ii) no contraventions of any applicable code of professional conduct in relation to the audit or review; or
(i) the auditor independence requirements of this Act in relation to the audit or review; or
are those contraventions details of which are set out in the declaration.
(ii) any applicable code of professional conduct in relation to the audit or review;
307C(4)
An offence based on subsection (3) is an offence of strict liability.
Note: For strict liability see section 6.1 of the Criminal Code .
307C(5)
The declaration under subsection (1) or (3) : (a) either:
(i) must be given when the auditor ' s report is given to the directors of the company, registered scheme, registrable superannuation entity or disclosing entity; or
(b) must be signed by the person making the declaration.
(ii) must satisfy the conditions in subsection (5A) ; and
[ CCH Note: Act No 101 of 2007, Sch 1, Pt 6 [ 233] contained the following application provision (which was effective 28 June 2007):
Application of items 34, 35, 38 to 41 and 169
(1) The amendments made by items 34, 35, 38 to 41 and 169 of this Schedule apply to a report for a financial year that ends on or after the day on which those items commence. (2) A company, registered scheme or disclosing entity must notify each member of the company, scheme or entity for the purposes of subsection 314(1AB) of the Corporations Act 2001 (as inserted by item 38 of this Schedule) after that item commences. (3) However, subitem (2) of this item does not apply in respect of a member of a company, registered scheme or disclosing entity if the member has previously requested, under section 316 of the Corporations Act 2001, the company, scheme or entity not to send him or her the material required by section 314 of that Act.]
307C(5A)
A declaration under subsection (1) or (3) in relation to a financial report for a financial year or half-year, or in relation to a sustainability report for a financial year, satisfies the conditions in this subsection if: (a) the declaration is given to the directors of the company, registered scheme, registrable superannuation entity or disclosing entity before the directors pass a resolution under subsection 298(2) or 306(3) (as the case requires) in relation to the directors ' report for the financial year or half-year; and (b) a director signs the directors ' report within 7 days after the declaration is given to the directors; and (c) the auditor ' s report on the financial report or sustainability report is made within 7 days after the directors ' report is signed; and (d) the auditor ' s report includes either of the following statements:
(i) a statement to the effect that the declaration would be in the same terms if it had been given to the directors at the time the auditor ' s report was made;
(ii) a statement to the effect that circumstances have changed since the declaration was given to the directors, and setting out how the declaration would differ if it had been given to the directors at the time the auditor ' s report was made.
[ CCH Note: Act No 101 of 2007, Sch 1, Pt 6 [ 233] contained the following application provision (which was effective 28 June 2007):
]Application of items 34, 35, 38 to 41 and 169
(1) The amendments made by items 34, 35, 38 to 41 and 169 of this Schedule apply to a report for a financial year that ends on or after the day on which those items commence. (2) A company, registered scheme or disclosing entity must notify each member of the company, scheme or entity for the purposes of subsection 314(1AB) of the Corporations Act 2001 (as inserted by item 38 of this Schedule) after that item commences. (3) However, subitem (2) of this item does not apply in respect of a member of a company, registered scheme or disclosing entity if the member has previously requested, under section 316 of the Corporations Act 2001, the company, scheme or entity not to send him or her the material required by section 314 of that Act.
307C(5B)
An individual auditor or a lead auditor is not required to give a declaration under subsection (1) or (3) in respect of a contravention if: (a) the contravention was a contravention by a person of subsection 324CE(2) , 324CF(2) or 324CG(2) ; and (b) the person does not commit an offence because of subsection 324CE(4) , 324CF(4) or 324CG(4) .
[ CCH Note: Act No 101 of 2007, Sch 1, Pt 6 [ 233] contained the following application provision (which was effective 28 June 2007):
]Application of items 34, 35, 38 to 41 and 169
(1) The amendments made by items 34, 35, 38 to 41 and 169 of this Schedule apply to a report for a financial year that ends on or after the day on which those items commence. (2) A company, registered scheme or disclosing entity must notify each member of the company, scheme or entity for the purposes of subsection 314(1AB) of the Corporations Act 2001 (as inserted by item 38 of this Schedule) after that item commences. (3) However, subitem (2) of this item does not apply in respect of a member of a company, registered scheme or disclosing entity if the member has previously requested, under section 316 of the Corporations Act 2001, the company, scheme or entity not to send him or her the material required by section 314 of that Act.
Self-incrimination
307C(6)
An individual is not excused from giving a declaration under subsection (1) or (3) on the ground that giving the declaration might tend to incriminate the individual or expose the individual to a penalty.
Use/derivative use indemnity
307C(7)
However, neither: (a) the information included in the declaration; nor (b) any information, document or thing obtained as a direct or indirect consequence of including the information in the declaration;
is admissible in evidence against the individual in any criminal proceedings, or in any proceedings that would expose the person to a penalty, other than:
(c) proceedings for an offence against section 1308 or 1309 in relation to the declaration; or (d) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the declaration.CCH Note - modifying legislative instruments: Section 307C is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Externally-Administered Bodies) Instrument 2015/251.
For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
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