Superannuation Industry (Supervision) Act 1993

PART 16 - ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES

Division 1A - Approved SMSF auditors

History

Div 1A inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. No 158 of 2012, s 3 and Sch 2 items 70 - 76 contain the following application provisions:

Part 3 - Application and transitional provisions
Approved auditors of self managed superannuation funds
70(1)
If, immediately before 31 January 2013, a person was an approved auditor of a self managed superannuation fund, the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule applies in relation to the person as if the person became an approved SMSF auditor on 31 January 2013.

70(2)
Subitem (1) does not prevent the person applying, under section 128A of that Act as so amended, for registration as an approved SMSF auditor.

70(3)
This item continues to apply to the person until:

(a) registration of the person as an approved SMSF auditor under section 128B of that Act as so amended takes effect; or

(b) the end of 30 June 2013;
whichever happens earlier.

70(4)
While this item applies to the person, section 128J of that Act as so amended does not require particulars relating to the person to be entered in the Register of Approved SMSF Auditors.
Applications before 1 July 2013 for registration as an approved SMSF auditor
71(1)
A person who, before 1 July 2013, applies for registration as an approved SMSF auditor is taken, in the circumstances prescribed by a regulation, to have met the one or more requirements of paragraph 128B(1)(a) of the Superannuation Industry (Supervision) Act 1993 , as amended by this Schedule, prescribed by that regulation.

71(2)
This item does not affect the operation of subsection 128B(2) of that Act as so amended.
Approved auditors of superannuation entities that are not self managed superannuation funds
72(1)
The amendment made by item 5 of this Schedule does not affect the continuity of any regulations made for the purposes of the definition of approved auditor in subsection 10(1) of the Superannuation Industry (Supervision) Act 1993 that are in force immediately before this item commences.

72(2)
However, this item does not apply to the extent that those regulations apply to an auditor of a self managed superannuation fund.
Auditors previously disqualified under section 131
73(1)
If:

(a) immediately before 31 January 2013, a person was a person in respect of whom an order (a section 131 order ) is in force under section 131 of the Superannuation Industry (Supervision) Act 1993 ; and

(b) immediately before the order came into force, the person was an approved auditor within the meaning of that Act;
on and after that day, the person is taken, for the purposes of that Act as amended by this Schedule, to be a person for whom an order (a section 130F order ) disqualifying a person from being an approved SMSF auditor is in force under section 130F .

73(2)
If:

(a) before 31 January 2013, an application was made, as mentioned in subsection 131(6) of the Superannuation Industry (Supervision) Act 1993 , for the revocation of the section 131 order; and

(b) a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, as mentioned in subsection 130F(9) of that Act as so amended, for the revocation of the section 130F order.

73(3)
If:

(a) before 31 January 2013, a request was made, under subsection 344(1) of the Superannuation Industry (Supervision) Act 1993 , for reconsideration of a decision refusing to revoke the section 131 order; and

(b) a decision on the request was not made before that day;
on and after that day, a request is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(1) of that Act as so amended, for reconsideration of a decision refusing to revoke the section 130F order.

73(4)
If:

(a) before 31 January 2013, an application was made, under subsection 344(8) of the Superannuation Industry (Supervision) Act 1993 , for review of a decision under subsection 344(4) of that Act relating to the section 131 order; and

(b) a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(8) of that Act as so amended, for review of a corresponding decision relating to the section 130F order.

Enforcement of undertakings
74
If:

(a) before 31 January 2013, the Commissioner of Taxation accepted an undertaking, under subsection 262A(1) of the Superannuation Industry (Supervision) Act 1993 , given by an approved auditor; and

(b) the undertaking was still in force immediately before that day;
on and after that day, the undertaking is taken, for the purposes of that Act as amended by this Schedule, to have been accepted by ASIC under that subsection of that Act as so amended.
Inspectors
75
If a person was an inspector immediately before 31 January 2013, the person ' s appointment as an inspector continues after that day as if it were an appointment for the purposes of the conduct of investigations, under Division 4 of Part 25 of the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule, in relation to:

(a) the affairs of superannuation entities and approved SMSF auditors; and

(b) the conduct of audits of self managed superannuation funds. Regulations
76
The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Part to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.

Subdivision A - Registration of approved SMSF auditors

View history note

SECTION 128B REGISTRATION AS AN APPROVED SMSF AUDITOR

View history reference

Obligation to register

128B(1)
The Regulator must grant an application under section 128A and register the applicant as an approved SMSF auditor if:

(a) the applicant:

(i) has the qualifications prescribed by the regulations; and

(ii) has the practical experience prescribed by the regulations; and

(iii) has passed a competency examination in accordance with section 128C ; and

(b) the Regulator is satisfied that the applicant:

(i) is capable of performing the duties of an approved SMSF auditor; and

(ii) is unlikely to contravene the obligations of an approved SMSF auditor under Subdivision B ; and

(iii) is otherwise a fit and proper person to be an approved SMSF auditor.

Discretion to register

128B(2)
If the applicant does not meet one or more of the requirements of paragraph (1)(a), the Regulator may grant the application if the applicant meets the requirements of paragraph (1)(b).

Refusal of applications

128B(3)
If the applicant does not meet the requirements of paragraph (1)(b), the Regulator must refuse the application.

128B(4)
Despite subsections (1) and (2), the Regulator must refuse the application if the applicant is:

(a) a person for whom a disqualification order or a suspension order is in force under section 130F ; or

(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D .

128B(5)
If the Regulator refuses the application, the Regulator must, not later than 14 days after the decision, give to the applicant a notice in writing setting out the decision and the reasons for it.

Certificate of registration

128B(6)
If the Regulator grants the application, the Regulator must, not later than 14 days after granting the application, issue to the applicant a certificate:

(a) stating that the applicant has been registered as an approved SMSF auditor; and

(b) stating the applicant ' s SMSF auditor number; and

(c) specifying the day the application was granted.

128B(7)
A failure to comply with subsection (6) does not affect the validity of the decision.

Duration of registration

128B(8)
A registration under this section takes effect at the beginning of the day specified in the certificate as the day the application is granted and remains in force (except while the registration is suspended) until:

(a) the Regulator cancels the registration under section 128E ; or

(b) an order disqualifying the person who is registered from being an approved SMSF auditor comes into force under section 130F ; or

(c) an order disqualifying the person who is registered from being or acting as an auditor of all superannuation entities comes into force under section 130D ; or

(d) the person who is registered dies.

View history note

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