Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007 (154 of 2007)

Schedule 1   Streamlining prudential regulation

Part 2   Amendments commencing 1 January 2008

Superannuation Industry (Supervision) Act 1993

244   After section 131

Insert:

131AA APRA may direct removal of auditor or actuary

(1) APRA may, if satisfied there is a ground under subsection (2), give a written direction to the trustee or trustees of a superannuation entity to end the appointment of a person as:

(a) the approved auditor of the superannuation entity; or

(b) the actuary of the superannuation entity.

(2) The grounds for giving a direction to end a person’s appointment are:

(a) if the person is the approved auditor of the superannuation entity - the person is disqualified under section 131; or

(b) the person is not a fit and proper person to hold the appointment; or

(c) the person has failed to perform adequately and properly the duties or functions of the appointment under this Act, the regulations or the Financial Sector (Collection of Data) Act 2001.

(3) Before directing a trustee or trustees to end a person’s appointment, APRA must:

(a) give written notice to:

(i) the trustee or trustees; and

(ii) the person; and

(b) give the trustee or trustees and the person a reasonable opportunity to make submissions on the matter.

(4) The notice must include a statement that any submissions in response to the notice may be discussed by APRA with other persons as mentioned in paragraph (5)(b).

(5) If a submission is made in response to the notice, APRA:

(a) must have regard to the submission; and

(b) may discuss any matter contained in the submission with any persons APRA considers appropriate for the purpose of assessing the truth of the matter.

(6) A direction to end a person’s appointment takes effect on the day specified in the direction, which must be at least 7 days after the direction is made.

(7) If APRA directs a trustee or trustees to end a person’s appointment, APRA must give the trustee or trustees and the person a copy of the direction.

(8) A direction to end a person’s appointment is not a legislative instrument.

(9) A trustee commits an offence if:

(a) the trustee does or fails to do an act; and

(b) by doing or failing to do the act, the trustee fails to comply with a direction under this section.

Penalty: 60 penalty units.

(10) Strict liability applies to subsection (9).

Note: For strict liability , see section 6.1 of the Criminal Code.