Retirement Savings Accounts Act 1997

PART 6 - RECORDS, AUDITS AND AUDITORS

SECTION 67 COURT POWER OF DISQUALIFICATION

67(1) [ Court power]

On application by APRA, the Federal Court of Australia may, by order, disqualify a person from holding any appointment as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied:

(a) as mentioned in subsection (3); and

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(b) that the disqualification is justified.

Note:

For offences relating to persons disqualified under this section, see section 67B .

67(2) [ Relevant auditors]

For the purposes of subsection (1), the Court may disqualify a person from being or acting as an auditor of:

(a) a particular RSA provider; or

(b) a class of RSA providers; or

(c) any RSA provider.

67(3) [ Basis for disqualification]

The Court may disqualify a person, in accordance with subsection (1), 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 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

(iii) any functions that an auditor 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 an approved auditor for the purposes of this Act.

67(4) [ Relevant matters]

In deciding whether it is satisfied as mentioned in subsection (3), 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.

67(5) [ Person ' s conduct]

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In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:

(a) the person ' s conduct in relation to the functions or duties that the person is required to perform under this Act or the regulations; and

(b) any other matters the Court considers relevant.

67(6) [ Notice of decision]

As soon as practicable after the Court disqualifies a person under this section, APRA must cause particulars of the disqualification:

(a) if the person is, or is acting as, an auditor of an RSA provider - to be given to the RSA provider concerned; and

(b) to be published in the Gazette .

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History

S 67, 67A and 67B substituted for s 67 by No 25 of 2008, s 3 and Sch 1 item 38, effective 26 May 2008.

No 25 of 2008, s 3 and Sch 1 item 40, contains the following application and transitional provisions:

Application and transitional provisions
(1)
For the purposes of the Retirement Savings Accounts Act 1997 , a disqualification by APRA that is in force under section 67 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.

(2)
For the purposes of the Retirement Savings Accounts Act 1997 , a reference in column 1 of the table in the provision of the Retirement Savings Accounts Act 1997 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.

New references to court orders to include references to disqualifications by APRA

Item Column 1
Reference Column 2
Provision of the Retirement Savings Accounts Act Column 3
Reference taken to be included

1 a person disqualified under section 67 sections 67A and 67B a person disqualified under section 67 under a disqualification that is continued in force under subitem (1)

2 an order made under section 67 subsection 67A(1) a disqualification made under section 67 that is continued in force under subitem (1)

(3)
Section 67 of the Retirement Savings Accounts Act 1997 (as in force immediately after 26 May 2008) applies in relation to any conduct engaged in by a person, whether before or after 26 May 2008.

Waivers of disqualifications

(4)
If:

(a) a person applies to APRA under section 67 of the Retirement Savings Accounts Act 1997 for the revocation of a disqualification order under section 67 of that Act; and

(b) APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.

Note:

See subitem (5) for the treatment of a decision by APRA under section 67 of the Retirement Savings Accounts Act 1997 in respect of which review proceedings are on foot at commencement.

Review proceedings on foot at commencement

(5)
The amendments to the Retirement Savings Accounts Act 1997 made by this Schedule do not affect:

(a) any request, in relation to a decision made under section 67 of that Act, for a review that is pending under section 189 of that Act immediately before 26 May 2008; or

(b) any proceeding, in relation to a decision under section 67 of that Act that has been confirmed or varied under subsection 189(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or

(c) any appeal to a court in relation to a proceeding referred to in paragraph (b).

(6)
If a disqualification by APRA under section 67 of the Retirement Savings Accounts Act 1997 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (5), the disqualification is, for the purposes of subitem (1), taken to have been in force immediately before 26 May 2008.

S 67 formerly read:

SECTION 67 AUDITORS - DISQUALIFICATION ORDERS
67(1) Disqualification order.
APRA may make a written order (the disqualification order ) disqualifying a person from being an approved auditor for the purposes of this Act if:

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

(i) the duties of an auditor 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

(iii) any functions that an auditor 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 an approved auditor for the purposes of this Act.
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History

S 67(1) amended by No 121 of 2001, s 3 and Sch 2 item 88, by inserting " or the Financial Sector (Collection of Data) Act 2001 " after " regulations " in subpara (a)(iii), effective 1 July 2002. For application provision see history note under s 3(1).

S 67(1) amended by No 54 of 1998.

67(2) Date of effect.
The disqualification order takes effect on the day specified in the order. The specified day must be within the 28 day period beginning on the day on which the order was made.

67(3) Notification.
APRA must give a copy of the order to the person.
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History

S 67(3) amended by No 54 of 1998.

67(4) Gazettal.
APRA must cause to be published in the Gazette particulars of:

(a) the disqualification order; and

(b) any action taken under section 189 of this Act, or under the Administrative Appeals Tribunal Act 1975 , in relation to the decision to make the order.
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History

S 67(4) amended by No 54 of 1998.

67(5) Revocation.
APRA may revoke a disqualification order. APRA ' s power to revoke may be exercised:

(a) on APRA ' s own initiative; or

(b) on written application made by the disqualified person.
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History

S 67(5) amended by No 54 of 1998.

67(6) Revocation - decision on application.
If an application is made for the revocation of a disqualification order, APRA must decide to:

(a) revoke the order; or

(b) refuse to revoke the order.
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History

S 67(6) amended by No 54 of 1998.

67(7) Revocation - grounds.
APRA must not revoke a disqualification order unless APRA is satisfied that the person concerned:

(a) is likely to carry out and perform adequately and properly the duties of an auditor under this Act or the regulations; and

(b) is otherwise a fit and proper person to be an approved auditor for the purposes of this Act.
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History

S 67(7) amended by No 54 of 1998.

67(8) Revocation - date of effect.
A revocation of a disqualification order takes effect on the day the revocation is made.

67(9) Reasons for revocation.
If APRA decides to refuse an application for revocation of a disqualification order, APRA must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.
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History

S 67(9) amended by No 54 of 1998.

67(10) Gazettal.
APRA must cause to be published in the Gazette particulars of the revocation of a disqualification order.
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History

S 67(10) amended by No 54 of 1998.

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New references to court orders to include references to disqualifications by APRA
Item	Column 1 Reference	Column 2 Provision of the Retirement Savings Accounts Act	Column 3 Reference taken to be included
1	a person disqualified under section 67	sections 67A and 67B	a person disqualified under section 67 under a disqualification that is continued in force under subitem (1)
2	an order made under section 67	subsection 67A(1)	a disqualification made under section 67 that is continued in force under subitem (1)