Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008 (25 of 2008)

Schedule 1   Court power of disqualification etc.

Part 1   Amendments commencing on Royal Assent

Retirement Savings Accounts Act 1997

38   Section 67

Repeal the section, substitute:

67 Court power of disqualification

(1) 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

(b) that the disqualification is justified.

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

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

67A Court power to revoke or vary a disqualification etc.

(1) A person who is disqualified under section 67, or APRA, may apply to the Federal Court of Australia for a variation or a revocation of an order made under that section.

(2) At least 21 days before commencing the proceedings, written notice of the application must be lodged:

(a) if the person who is disqualified makes the application - by the person with APRA; or

(b) if APRA makes the application - by APRA with the person who is disqualified.

67B Disqualified persons not to be auditor of RSA provider

(1) A person commits an offence if:

(a) the person is, or acts as, an auditor of an RSA provider for the purposes of this Act; and

(b) the person is disqualified under section 67 from being or acting as an auditor of that RSA provider; and

(c) the person knows that he or she is so disqualified.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person is, or acts as, an auditor of an RSA provider for the purposes of this Act; and

(b) the person is disqualified under section 67 from being or acting as an auditor of that RSA provider; and

(c) the person knows that he or she is so disqualified.

Penalty: 60 penalty units.

(3) Subsection (2) is an offence of strict liability.

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