Treasury Laws Amendment (2022 Measures No. 4) Act 2023 (29 of 2023)

Schedule 6   Financial reporting and auditing requirements for superannuation entities

Part 1   Amendment of the Corporations Act 2001

Corporations Act 2001

160   At the end of Part 2M.4

Add:

Division 8 - Appointment, removal and fees of auditors of registrable superannuation entities

Subdivision A - Appointment of registrable superannuation entity auditors

331AF Registrable superannuation entity auditor (initial appointment of auditor)

(1) If a registrable superannuation entity is registered under section 29M of the Superannuation Industry (Supervision) Act 1993 after the commencement of this section, the RSE licensee must appoint an auditor of the entity for the purposes of this Chapter within 1 month after the day on which the entity is registered under that section.

(2) If:

(a) a registrable superannuation entity was registered under section 29M of the Superannuation Industry (Supervision) Act 1993 immediately before the commencement of this section; and

(b) immediately before the commencement of this section, an individual held an appointment as an auditor of the entity for the purposes of the RSE licensee law;

then:

(c) the RSE licensee is taken to have appointed the individual as an auditor of the entity for the purposes of this Chapter; and

(d) that appointment takes effect at the commencement of this section.

(3) A director of the registrable superannuation entity must take all reasonable steps to secure compliance with subsection (1).

331AG Registrable superannuation entity auditor (appointment to fill vacancy)

(1) If a vacancy occurs in the office of auditor of a registrable superannuation entity, the RSE licensee for the entity must, within 1 month after the vacancy occurs, appoint an auditor to fill the vacancy.

(2) A director of the registrable superannuation entity must take all reasonable steps to secure compliance with subsection (1).

331AH Registrable superannuation entity auditor (duration of appointment)

(1) An auditor of a registrable superannuation entity holds office until the auditor:

(a) dies; or

(b) is removed, or resigns, from office in accordance with section 331AK; or

(c) ceases to be capable of acting as an auditor because of Division 2, 2A or 5 of this Part; or

(d) ceases to be auditor under subsection (2), (3), (4) or (5).

(2) An auditor ceases to be the auditor of a registrable superannuation entity for the purposes of this Chapter if the auditor ceases to be the auditor of the entity for the purposes of the RSE licensee law.

(3) An individual auditor ceases to be the auditor of a registrable superannuation entity for the purposes of this Chapter if:

(a) on a particular day (the start day ), the individual auditor:

(i) informs ASIC of a conflict of interest situation in relation to the entity under subsection 324CA(1A); or

(ii) informs ASIC of particular circumstances in relation to the entity under subsection 324CE(1A); and

(b) the individual auditor does not give ASIC a notice, before the notification day (see subsection (6)), that that conflict of interest situation has, or those circumstances have, ceased to exist before the end of the period (the remedial period ) of 21 days, or such longer period as ASIC approves in writing, from the start day.

(4) An audit firm ceases to be auditor of a registrable superannuation entity under this subsection if:

(a) on a particular day (the start day ), ASIC is:

(i) informed of a conflict of interest situation in relation to the entity under subsection 324CB(1A); or

(ii) informed of particular circumstances in relation to the entity under subsection 324CF(1A); and

(b) ASIC has not been given a notice on behalf of the audit firm, before the notification day (see subsection (6)), that that conflict of interest situation has, or those circumstances have, ceased to exist before the end of the period (the remedial period ) of 21 days, or such longer period as ASIC approves in writing, from the start day.

(5) An audit company ceases to be auditor of a registrable superannuation entity under this subsection if:

(a) on a particular day (the start day ), ASIC is:

(i) informed of a conflict of interest situation in relation to the entity under subsection 324CB(1A) or 324CC(1A); or

(ii) informed of particular circumstances in relation to the entity under subsection 324CF(1A) or 324CG(1A) or (5A); and

(b) ASIC has not been given a notice on behalf of the audit company, before the notification day (see subsection (6)), that that conflict of interest situation has, or those circumstances have, ceased to exist before the end of the period (the remedial period ) of 21 days, or such longer period as ASIC approves in writing, from the start day.

(6) The notification day is:

(a) the last day of the remedial period; or

(b) such later day as ASIC approves in writing (whether before or after the remedial period ends).

(7) If an audit firm ceases to be the auditor of a registrable superannuation entity under subsection (1) at a particular time, each member of the firm who:

(a) is taken to have been appointed as an auditor of the entity under subsection 324AB(1) or 324AC(4); and

(b) is an auditor of the entity immediately before that time;

ceases to be an auditor of the entity at that time.

331AJ ASIC's power to appoint auditor of a registrable superannuation entity

(1) ASIC may appoint an auditor of a registrable superannuation entity for the purposes of this Chapter if:

(a) the RSE licensee for the entity does not appoint an auditor when required by this Act to do so; and

(b) a member of the entity applies to ASIC in writing for the appointment of an auditor under this section.

(2) ASIC may only appoint an individual, firm or company as auditor under subsection (1) if the individual, firm or company consents to being appointed.

(3) If ASIC appoints an individual, firm or company as auditor under subsection (1), ASIC must:

(a) notify APRA of the appointment; and

(b) do so as soon as practicable after making the appointment.

Subdivision B - Removal and resignation of registrable superannuation entity auditors

331AK Removal and resignation of auditors

(1) The RSE licensee for a registrable superannuation entity may, with ASIC's consent, remove the auditor of the entity from office.

(2) An auditor of a registrable superannuation entity may, by notice in writing given to the RSE licensee for the entity, resign as auditor of the entity if:

(a) the auditor:

(i) has, by notice in writing given to ASIC, applied for consent to the resignation and stated the reasons for the application; and

(ii) has, at or about the same time as giving the notice to ASIC, given the registrable superannuation entity notice in writing of the application to ASIC; and

(b) ASIC has given its consent.

(3) As soon as practicable after ASIC receives a notice from an auditor under subsection (2), ASIC must notify the auditor, and the registrable superannuation entity, whether it consents to the resignation.

(4) A statement made by an auditor in an application to ASIC under subsection (2) or in answer to an inquiry by ASIC relating to the reasons for the application:

(a) is not admissible in evidence in any civil or criminal proceedings against the auditor; and

(b) must not be made the ground of a prosecution, action or suit against the auditor.

A certificate by ASIC that the statement was made in the application or in answer to the inquiry by ASIC is prima facie evidence that the statement was so made.

(5) The resignation of an auditor takes effect:

(a) on the day (if any) specified for the purpose in the notice of resignation; or

(b) on the day on which ASIC gives its consent to the resignation; or

(c) on the day (if any) fixed by ASIC for the purpose;

whichever occurs last.

(6) If, on the retirement or withdrawal of a member of a firm, the firm will no longer be capable of acting as auditor of a registrable superannuation entity because of subparagraph 324BB(1)(b)(i) or (2)(b)(i), the member is (if not disqualified from acting as auditor of the entity) taken to be the auditor of the entity until the member obtains the consent of ASIC to the member's retirement or withdrawal.

(7) Within 14 days after:

(a) the removal from office of an auditor of a registrable superannuation entity; or

(b) the receipt of a notice of resignation from an auditor of a registrable superannuation entity;

the entity must lodge with ASIC a notice of the removal or resignation in the prescribed form.

(8) If ASIC consents to the removal or the resignation of an auditor of a registrable superannuation entity, ASIC must:

(a) notify APRA of the consent; and

(b) do so as soon as practicable after giving the consent.

Subdivision C - Fees and expenses of auditors

331AL Fees and expenses of auditors

The reasonable fees and expenses of an auditor of a registrable superannuation entity are payable by the RSE licensee for the entity.