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

Schedule 6   Financial reporting and auditing requirements for superannuation entities

Part 2   Amendments of other Acts

Superannuation Industry (Supervision) Act 1993

231   After section 129

Insert:

129A Obligations of lead auditors - compliance

Contravention by RSE audit company

(1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

(ii) the Financial Sector (Collection of Data) Act 2001;

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

Contravention by member of RSE audit firm

(2) A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:

(a) the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

(ii) the Financial Sector (Collection of Data) Act 2001;

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(c) the lead auditor does not, immediately after the lead auditor forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

(3) A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:

(a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or

(b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.

Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code.

Contravention by lead auditor

(4) A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a registrable superannuation entity; and

(b) the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

(i) this Act, the regulations or the prudential standards;

(ii) the Financial Sector (Collection of Data) Act 2001;

(iii) a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

(c) the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and

(d) the person does not, immediately after the person forms the opinion:

(i) tell a trustee of the entity about the matter in writing; and

(ii) if the contravention about which the person has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.

Exception - person has a belief that the opinion is not relevant to the performance of audit functions

(5) A person is not required by subsection (1), (2) or (4) to tell the Regulator, or a trustee of a registrable superannuation entity, about a matter if the person has an honest belief that the opinion mentioned in that subsection is not relevant to the performance of the audit functions mentioned in that subsection.

No civil liability for telling about a matter

(6) A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).

Offences - RSE audit company

(7) A company commits an offence if the company contravenes subsection (1).

Penalty: 250 penalty units.

(8) A company commits an offence if the company contravenes subsection (1).

Penalty: 125 penalty units.

(9) An offence against subsection (8) is an offence of strict liability.

Offences - lead auditor or member of RSE audit firm

(10) A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 50 penalty units.

(11) A person commits an offence if the person contravenes subsection (2) or (4).

Penalty: 25 penalty units.

(12) An offence against subsection (11) is an offence of strict liability.