Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008 (25 of 2008)

Schedule 1   Court power of disqualification etc.

Part 1   Amendments commencing on Royal Assent

Superannuation Industry (Supervision) Act 1993

61   After section 130C

Insert:

Division 3 - Disqualifying and removing actuaries and auditors

130D Court power of disqualification

(1) This section applies to the extent that the Regulator is APRA.

(2) On application by the Regulator, the Federal Court of Australia may, by order, disqualify a person from being or acting as a person referred to in subsection (3), for a period that the Court considers appropriate, if the Court is satisfied:

(a) as mentioned in subsection (4); and

(b) that the disqualification is justified.

Note: For offences relating to persons disqualified under this section, see section 131C.

(3) For the purposes of subsection (2), the Court may disqualify a person from being or acting as an approved auditor or actuary, for the purposes of this Act, of:

(a) a particular superannuation entity; or

(b) a class of superannuation entities; or

(c) any superannuation entity.

(4) The Court may disqualify a person, in accordance with subsection (2), if the Court is satisfied that:

(a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an auditor or actuary under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or actuary; or

(iii) any functions that an auditor or actuary is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or

(b) the person is otherwise not a fit and proper person to be a person referred to in subsection (3).

(5) In deciding whether it is satisfied as mentioned in subsection (4), the Court may take into account:

(a) any matters specified in the regulations for the purposes of this paragraph; and

(b) any other matters the Court considers relevant.

(6) In deciding whether the disqualification is justified as mentioned in paragraph (2)(b), the Court may have regard to:

(a) the person's conduct in relation to his or her duties under this Act and the regulations; and

(b) any other matters the Court considers relevant.

(7) As soon as practicable after the Court disqualifies a person under this section, the Regulator must cause particulars of the disqualification to which the notice relates to be published in the Gazette.

130E Court power to revoke or vary a disqualification etc.

(1) A person who is disqualified under section 130D, or the Regulator (to the extent that the Regulator is APRA), may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130D.

(2) At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the person who is disqualified makes the application - by the person with the Regulator; or

(b) if the Regulator makes the application - by the Regulator with the person who is disqualified.