Superannuation Industry (Supervision) Act 1993

PART 16 - ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES  

Division 2 - Obligations of actuaries and auditors  

SECTION 130CA   LEAD AUDITORS - FAILURE TO IMPLEMENT ACTUARIAL RECOMMENDATIONS  

Contravention by RSE audit company

130CA(1)    
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a)    the entity is a defined benefit fund; and

(b)    the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(c)    the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d)    the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion 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.

Contravention by member of RSE audit firm

130CA(2)    
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a)    the entity is a defined benefit fund; and

(b)    the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(c)    the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d)    the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion 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.

130CA(3)    
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a)    does not know at that time of the circumstances that constitute the contravention of subsection (2) ; or

(b)    does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .

Contravention by lead auditor

130CA(4)    
A person contravenes this subsection if:

(a)    the person is the lead auditor for an audit of a registrable superannuation entity; and

(b)    the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:

(i) a report of an actuary obtained under the regulations or the prudential standards; or

(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or

(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and

(c)    the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d)    the person does not, immediately after the person forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the person has formed the opinion 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.

No civil liability for telling about a matter

130CA(5)    
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1) , (2) or (4) .

Offences - RSE audit company

130CA(6)    
A company commits an offence if the company contravenes subsection (1) .

Penalty: 250 penalty units.

130CA(7)    
A company commits an offence if the company contravenes subsection (1) .

Penalty: 125 penalty units.

130CA(8)    
An offence against subsection (7) is an offence of strict liability.

Offences - lead auditor and member of RSE audit firm

130CA(9)    
A person commits an offence if the person contravenes subsection (2) or (4) .

Penalty: 50 penalty units.

130CA(10)    
A person commits an offence if the person contravenes subsection (2) or (4) .

Penalty: 25 penalty units.

130CA(11)    
An offence against subsection (10) is an offence of strict liability.