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 C - Registers

[ CCH Note: Subdiv C heading will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1423, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J . The heading will read:

Subdivision C - Registrar must record certain particulars

]

SECTION 128J REGISTER OF APPROVED SMSF AUDITORS

View history reference

128J(1)
The Regulator must cause a Register of Approved SMSF Auditors to be kept for the purposes of this Act.

128J(2)
The Regulator must cause the entry in the Register of the following particulars relating to each person who is an approved SMSF auditor or suspended SMSF auditor:

(a) the person ' s name;

(b) the day the person ' s registration took effect;

(c) the address of the principal place where the person practises as an auditor of self managed superannuation funds;

(d) if the person practises as an auditor or a member of a firm, or under a name or style other than the person ' s own name - the name of the firm, or the name or style under which he or she so practises;

(e) particulars of any suspension of the person ' s registration.

The Regulator may cause the entry in the Register of such other particulars relating to the person as the Regulator considers appropriate.

128J(3)
If the person ceases to be an approved SMSF auditor (for a reason other than the person becoming a suspended SMSF auditor), the Regulator must cause to be removed from the Register the person ' s name and any other particulars relating to the person that are entered in the Register.

128J(4)
A person may inspect and make copies of, or take extracts from, the Register.

[ CCH Note: S 128J will be substituted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1423, effective 1 July 2026 or a day or days to be fixed by Proclamation. S 128J will read:

SECTION 128J PARTICULARS RELATING TO APPROVED SMSF AUDITORS ETC.

128J(1)
The Registrar must maintain records of particulars relating to the following persons:

(a) a person who is an approved SMSF auditor or suspended SMSF auditor;

(b) a person whose registration as an approved SMSF auditor has been cancelled under section 128E ;

(c) a person for whom an order disqualifying a person from being an approved SMSF auditor is in force under section 130F .

128J(2)
Maintaining the records may involve removing a record relating to a particular person.

No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 items 1465 - 1468 contain the following application and transitional provisions:

Part 3 - Application and transitional provisions

1465 Definitions

(1)
In this Part:
amending item
means:

(a) an item (other than item 103) of Part 2 of this Schedule that amends a provision of any of the following:

(i) the A New Tax System (Australian Business Number) Act 1999 ;

(ii) the A New Tax System (Goods and Services Tax) Act 1999 ;

(iii) the Australian Prudential Regulation Authority Act 1998 ;

(iv) the Income Tax Assessment Act 1997 ;

(v) the Superannuation Industry (Supervision) Act 1993 ;

(vi) the Taxation Administration Act 1953 ; or

(b) an item specified under subitem (2).

application day
, for an amendment made by an amending item, as applying in relation to a matter, means the day on and after which the amendment applies in relation to that matter because of item 1467.

commencement day
, for an amending item, means the day on which the item commences (taking into account Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022) .

interim period
means the period:

(a) starting at the start of 22 June 2022; and

(b) ending at the end of the day before the day on which Part 2 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences.
postponed item
means any of the following that commenced on 22 June 2022 (disregarding Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022) :

(a) an item of Part 2 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 ;

(b) an item of Part 3 of Schedule 1 to the Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021 ;

(c) an item of Part 4 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 .
Note:

Item 103 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 is not covered by paragraph (a) because that item commenced on 4 April 2021.

(2)
For the purposes of paragraph (b) of the definition of amending item in subitem (1), the Minister may, by legislative instrument, specify items that:

(a) are in a Schedule to any Act and amend a provision that:

(i) is a provision of an Act referred to in paragraph (a) of that definition; and

(ii) deals with a matter related to a government registry regime; and

(b) are to commence on a day after the end of the interim period but before 1 July 2026.

(3)
For the purposes of subparagraph 1467(1)(c)(i), the Minister may, by legislative instrument, specify a day for an item specified under subitem (2) of this item. The day must occur after the end of the interim period but before 1 July 2026.

1466 Validation of acts or things done during interim period
Object

(1)
The object of this item is to treat all situations during the interim period in every respect as if:

(a) the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and

(b) the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.

Validation of acts and things done in interim period

(2)
An act or thing that was done at any time during the interim period is as valid, and is taken always to have been as valid, as it would have been if:

(a) the amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 had been made at the start of 21 June 2022; and

(b) in particular, the amendments made by the postponed items had not been made at the start of 22 June 2022 and had had no effect during the interim period.

Continuation of delegations

(3)
Without limiting subitem (2), if:

(a) a function or power conferred by any of the following Acts was delegated to a person:

(i) the A New Tax System (Australian Business Number) Act 1999 ;

(ii) the A New Tax System (Goods and Services Tax) Act 1999 ;

(iii) the Australian Prudential Regulation Authority Act 1998 ;

(iv) the Commonwealth Registers Act 2020 ;

(v) the Income Tax Assessment Act 1997 ;

(vi) the Superannuation Industry (Supervision) Act 1993 ;

(vii) the Taxation Administration Act 1953 ; and

(b) the delegation was in force immediately before 22 June 2022; and

(c) but for this subitem, the delegation would have ceased to have effect at the start of 22 June 2022 because of any of the amendments made by the postponed items;
then:

(d) an act or thing done by the delegate in the interim period is, and is taken always to have been, as valid a performance or exercise of the function or power as it would have been if the delegation had continued in force throughout the interim period; and

(e) the delegation has effect, on and after the day section 1 of the Treasury Laws Amendment (2022 Measures No. 1) Act 2022 commences, as if it had been made at the time that section commences.

Acts and things to which this item applies

(4)
This item applies to an act or thing, regardless of the basis on which, or capacity in which, the act or thing was done or purported to be done.

1467 Application of amendments

(1)
An amendment of a provision of an Act that is made by an amending item applies, in relation to a matter (the relevant matter ), on and after the earliest of the following days:

(a) if the amending item is covered by a notifiable instrument in force under paragraph (2)(a) of this item - the day the instrument specifies for the item;

(b) if the amending item is covered by a notifiable instrument in force under paragraph (2)(b) of this item that specifies matters for the item that include the relevant matter - the day the instrument specifies for the item in relation to those matters;

(c) whichever of the following is applicable:

(i) if a day is specified for the amending item under subitem 1465(3) - that day;

(ii) otherwise - 1 July 2026.

Note:

The provision, as in force immediately before the commencement day for the amending item, will continue to apply in relation to the relevant matter until the day that applies under this subitem.

(2)
The Minister:

(a) may by notifiable instrument specify days for amending items for the purposes of paragraph (1)(a); and

(b) may by notifiable instrument specify days and matters for amending items for the purposes of paragraph (1)(b).
Note:

For specification by class, see subsection 13(3) of the Legislation Act 2003 .

(3)
A day specified for an amending item in a notifiable instrument made under subitem (2) must be:

(a) on or after the day that the instrument is made; and

(b) on or after the commencement day for the amending item.

(4)
Without limiting subsection 13(3) of the Legislation Act 2003 , an instrument made under subitem (2) of this item may specify all amending items as a class of amending items.

1468 Things started but not finished by ASIC
1468
If:

(a) an amending item amends a provision of an Act; and

(b) before the application day for the amendment made by the amending item, as applying in relation to a matter, ASIC started doing a thing that relates to that matter under the provision as in force immediately before the commencement day for the amending item; and

(c) immediately before that application day, ASIC had not finished doing that thing; and

(d) on and after that application day, doing that thing is within the powers or functions of the Registrar;
then, on and after that application day:

(e) ASIC may finish doing that thing as if that thing were being done by the Registrar in performing or exercising the Registrar ' s functions or powers; and

(f) to the extent that ASIC does not finish doing that thing under paragraph (e), the Registrar may finish doing that thing in performing and exercising the Registrar ' s functions and powers.

]

View history note

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