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

233   After section 130

Insert:

130AA Obligations of lead auditors - solvency

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 the financial position of the entity may be, or may be about to become, unsatisfactory; 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, tell the Regulator, and a trustee of the entity, 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 the financial position of the entity may be, or may be about to become, unsatisfactory; 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, tell the Regulator, and a trustee of the entity, 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 the financial position of the entity may be, or may be about to become, unsatisfactory; 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, tell the Regulator, and a trustee of the entity, about the matter in writing.

No civil liability for telling about a matter

(5) 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

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

Penalty: 250 penalty units.

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

Penalty: 125 penalty units.

(8) An offence against subsection (7) is an offence of strict liability.

Offences - lead auditor and member of RSE audit firm

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

Penalty: 50 penalty units.

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

Penalty: 25 penalty units.

(11) An offence against subsection (10) is an offence of strict liability.

When financial position is unsatisfactory

(12) For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.