A Bill for an Act to amend the law relating to financial services, registrable superannuation entities and taxation, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | |
| 2. Schedule 1 | 1 April 2023. | 1 April 2023 |
| 3. Schedule 2, Part 1, Division 1 | 1 July 2023. | 1 July 2023 |
| 4. Schedule 2, Part 1, Division 2 | The later of: (a) immediately after the commencement of the provisions covered by table item 3; and (b) the commencement of item 609 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020. | |
| 5. Schedule 2, Part 2 | 1 July 2023. | 1 July 2023 |
| 6. Schedule 3 | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Licensing exemptions for foreign financial services providers
Corporations Act 2001
1 Section 910A
Insert:
comparable regulator, for a financial service, has the meaning given by subparagraph 911A(2)(ep)(iv).
2 Before section 911A
Insert:
Subdivision A—General
3 After paragraph 911A(2)(en)
Insert:
(eo) all of the following apply:
(i) the financial service is provided only to professional investors;
(ii) the person provides the financial service from a place outside this jurisdiction, unless subsection 911E(1) (about marketing visits) applies to the financial service;
(iii) the person’s head office and principal place of business are located at one or more places outside this jurisdiction;
(iv) the person reasonably believes that providing the same or substantially the same financial service would not contravene any law applying in any of the places referred to in subparagraph (ii) or (iii);
Note: There may be exceptions that make this exemption unavailable, and this exemption is subject to conditions (see Subdivision B).
(ep) all of the following apply:
(i) the financial service is provided only to wholesale clients;
(ii) the person is a foreign company or is a partnership formed outside this jurisdiction;
(iii) the person has and maintains any authorisations, registrations or licences (however described) necessary to legally provide the same or substantially the same financial service in a place outside this jurisdiction (the comparable jurisdiction);
(iv) the regulator administering those authorisations, registrations or licences for the comparable jurisdiction is a regulator determined under subsection 911W(1) (the financial service’s comparable regulator);
(v) the person provides the financial service from this jurisdiction or from the comparable jurisdiction;
Note: This exemption is subject to conditions (see Subdivision B).
4 At the end of Division 2 of Part 7.6
Add:
Subdivision B—Extensions, exceptions and conditions for certain licensing exemptions for foreign financial services providers
911E Exemption for financial services provided to professional investors—extends to financial services provided in Australia during limited marketing visits
(1) For the purposes of subparagraph 911A(2)(eo)(ii), this subsection applies to a financial service provided by a person:
(a) from this jurisdiction; and
(b) on a day during a financial year;
if the financial service is provided during one or more marketing visits to this jurisdiction by one or more representatives of the person.
(2) However, subsection (1) does not apply to the financial service for that day if, at the start of that day, the total length of the person’s marketing visits to this jurisdiction during the financial year is already 28 days or more.
(3) For the purposes of subsection (2), work out the total length of those marketing visits as follows:
(a) count each marketing visit to this jurisdiction:
(i) by any representative of the person; and
(ii) that includes time spent with any client (or prospective client) of the person in relation to any financial service;
(b) count each day of the visit, whether or not time is spent with a client (or prospective client) on all of the days;
(c) count as a whole day any part of a day at the start or end of the visit;
(d) count as a single day any day on which 2 or more of the person’s representatives are making such visits.
911F Exemption for financial services provided to professional investors—regulations may provide exceptions
Despite paragraph 911A(2)(eo), the regulations may provide that the exemption under that paragraph does not apply for:
(a) a particular kind of financial service; or
(b) a particular kind of financial service in relation to a particular kind of financial product; or
(c) a particular kind of financial product; or
(d) a particular kind of professional investor.
911G Certain licensing exemptions for foreign financial services providers are subject to conditions
Conditions for the exemption for financial services provided to professional investors
(1) The exemption under paragraph 911A(2)(eo) applies to a person for a financial service subject to conditions. These conditions for the exemption are:
(a) the conditions in sections 911H, 911J, 911K and 911L; and
(b) any additional conditions imposed under section 911T for the exemption’s future application to the person.
Note: ASIC may cancel the exemption from applying to the person if:
(a) the person contravenes any of these conditions; or
(b) ASIC reasonably believes that the person (or a related person) is not a fit and proper person;
(see sections 911Q and 911R).
Conditions for the exemption for comparably regulated providers
(2) The exemption under paragraph 911A(2)(ep) applies to a person for a financial service subject to conditions. These conditions for the exemption are:
(a) the conditions in sections 911H, 911J, 911K, 911L, 911M and 911N; and
(b) any additional conditions imposed under section 911T for the exemption’s future application to the person.
Note: ASIC may cancel the exemption from applying to the person if:
(a) the person contravenes any of these conditions; or
(b) ASIC reasonably believes that the person (or a related person) is not a fit and proper person;
(see sections 911Q and 911R).
Contravening a condition may result in a civil penalty
(3) A person contravenes this subsection if:
(a) apart from the exemption under paragraph 911A(2)(eo) or (ep), the person would contravene subsection 911A(5B) in relation to providing a financial service; and
(b) the person contravenes a condition for the exemption.
Note 1: This subsection is a civil penalty provision (see section 1317E).
Note 2: The conditions set out in this Subdivision apply to one or both of the exemptions referred to in subsections (1) and (2).
Note 3: A condition set out in this Subdivision can require something to be done outside of Australia (see subsection 5(4)).
911H Certain licensing exemptions for foreign financial services providers—conditions about notifying or assisting ASIC
(1) For the purposes of section 911G, this section sets out conditions for a person that proposes to rely on the exemption under paragraph 911A(2)(eo) or (ep) for providing one or more kinds of financial service (the notifiable kinds of service).
Notifying ASIC of intention to rely on the exemption
(2) The person must notify ASIC that the person intends to rely on the exemption for providing the notifiable kinds of service:
(a) during the period (the notification period):
(i) starting on the 15th business day before the first day on which the person intends to start providing any of the notifiable kinds of service in reliance on the exemption; and
(ii) ending on the 15th business day after the first day on which the person starts providing any of the notifiable kinds of service in reliance on the exemption; and
(b) by giving ASIC the notice in a written form that:
(i) is approved by ASIC; and
(ii) includes the person’s contact details; and
(iii) describes each of the notifiable kinds of service; and
(iv) includes the information, statements, explanations or other matters required by the approved form; and
(v) is accompanied by any other material required by the approved form; and
(vi) is given in a manner required by the approved form (including in electronic form).
Note: A single notice can cover one or more of the notifiable kinds of service.
Giving ASIC such assistance as ASIC reasonably requests
(3) The person must give such assistance to ASIC, or a person authorised by ASIC, as ASIC or the authorised person reasonably requests in relation to the performance of ASIC’s functions or the exercise of ASIC’s powers.
(4) Such assistance may include showing ASIC the person’s books, giving ASIC a copy of the person’s books, or giving ASIC other information.
Submitting to the non‑exclusive jurisdiction of Australian courts
(5) The person must notify ASIC that the person agrees:
(a) that legal proceedings relating to providing any of the notifiable kinds of service in reliance on the exemption may be brought in a Court; and
(b) if such proceedings are brought in a Court—that the law relating to providing such a service is the law in force in this jurisdiction; and
(c) subject to subsection (7), to comply with any order of a Court from such proceedings.
(6) The person must give this notice to ASIC:
(a) during the notification period (see paragraph (2)(a)) for the notifiable kinds of service; and
(b) in a written form that:
(i) is approved by ASIC; and
(ii) includes the information, statements, explanations or other matters required by the approved form; and
(iii) is accompanied by any other material required by the approved form; and
(iv) is given in a manner required by the approved form (including in electronic form).
Note: A single notice can cover one or more of the notifiable kinds of service.
(7) Paragraph (5)(c) does not require compliance with an order to the extent that the order conflicts with an order made by a court in:
(a) for the exemption under paragraph 911A(2)(eo)—any of the places referred to in subparagraph 911A(2)(eo)(ii) or (iii) for such a service; or
(b) for the exemption under paragraph 911A(2)(ep)—a comparable jurisdiction referred to in subparagraph 911A(2)(ep)(iii) for such a service.
911J Certain licensing exemptions for foreign financial services providers—condition to comply with ASIC directions
(1) For the purposes of section 911G, this section sets out conditions for a person that proposes to rely on the exemption under paragraph 911A(2)(eo) or (ep) for providing one or more kinds of financial service.
(2) ASIC may, by giving written notice to the person, direct the person to give ASIC a statement containing specified information about one or more of the following:
(a) one or more of those financial services;
(b) one or more of those kinds of financial service;
(c) the person’s related financial services business.
(3) Directions given under subsection (2) to the person:
(a) may be given at any time; and
(b) may require a statement containing information to be given to ASIC on a periodic basis, or each time a particular event or circumstance occurs, without ASIC having to give a further direction; and
(c) may require each statement to be given to ASIC in a written form that:
(i) is approved by ASIC; and
(ii) includes the information, statements, explanations or other matters required by the approved form; and
(iii) is accompanied by any other material required by the approved form; and
(iv) is given in a manner required by the approved form (including in electronic form).
(4) The person must comply with a direction given under subsection (2):
(a) within the time specified in the direction if that is a reasonable time; or
(b) in any other case—within a reasonable time.
ASIC may extend the time within which the person must comply with the direction by giving written notice to the person.
911K Certain licensing exemptions for foreign financial services providers—condition about giving notice of the exemption to each recipient of a kind of financial service
(1) For the purposes of section 911G, this section sets out a condition for a person that proposes to rely on the exemption under paragraph 911A(2)(eo) or (ep) for providing one or more kinds of financial service.
(2) The person must provide written notice to each recipient of each of those kinds of financial service either:
(a) before the person starts providing that kind of financial service to the recipient in reliance on the exemption; or
(b) if that is not practicable—as soon as practicable after starting to do so.
(3) The notice must include:
(a) a statement to the effect the person is exempt from the requirement to hold an Australian financial services licence covering the provision of that kind of financial service; and
(b) a statement explaining either that:
(i) the exemption is under paragraph 911A(2)(eo) of this Act, which is an exemption for a financial service provided only to professional investors; or
(ii) the exemption is under paragraph 911A(2)(ep) of this Act, which is an exemption for a financial service provided only to wholesale clients.
Note 1: The notice only needs to be given once to each recipient for each exemption for that kind of financial service.
Note 2: A single notice can cover one or more of those kinds of financial service.
Note 3: For subsection (2), the recipient will be:
(a) for the exemption under paragraph 911A(2)(eo)—a professional investor; or
(b) for the exemption under paragraph 911A(2)(ep)—a wholesale client.
911L Certain licensing exemptions for foreign financial services providers—condition to notify ASIC of changes to contact details
(1) For the purposes of section 911G, this section sets out a condition for a person that proposes to rely on the exemption under paragraph 911A(2)(eo) or (ep).
(2) The person must notify ASIC of any change to the person’s contact details:
(a) as soon as practicable after the change happens; and
(b) by giving the notice to ASIC in a written form that:
(i) is approved by ASIC; and
(ii) includes the information, statements, explanations or other matters required by the approved form; and
(iii) is accompanied by any other material required by the approved form; and
(iv) is given in a manner required by the approved form (including in electronic form).
911M Exemption for comparably regulated providers—information about the person and investigations etc.
(1) For the purposes of subsection 911G(2), this section sets out conditions for a person that proposes to rely on the exemption under paragraph 911A(2)(ep) for providing one or more kinds of financial service.
Consent to information sharing between ASIC and any comparable regulator
(2) During the notification period (see paragraph 911H(2)(a)) for each of those kinds of financial service, the person must notify ASIC that the person consents to:
(a) ASIC; and
(b) the comparable regulator for each financial service of that kind;
sharing information about the person.
(3) The person must give this notice to ASIC in a written form that:
(a) is approved by ASIC; and
(b) includes the information, statements, explanations or other matters required by the approved form; and
(c) is accompanied by any other material required by the approved form; and
(d) is given in a manner required by the approved form (including in electronic form).
Note: A single notice can cover one or more of those kinds of financial service.
Notifying ASIC of investigations etc. in other jurisdictions
(4) The person must notify ASIC of any significant enforcement action taken, any significant disciplinary action taken or any significant investigation undertaken against the person by:
(a) any regulator in any place outside this jurisdiction; or
(b) any government authority in any place outside this jurisdiction; or
(c) any operator of a financial market, in any place outside this jurisdiction, in which the person is a participant.
(5) The person must give this notice to ASIC:
(a) as soon as practicable, and before the 15th business day, after the day on which the person becomes aware, or would reasonably be expected to have become aware, of the action or investigation; and
(b) by giving the notice to ASIC in a written form that:
(i) is approved by ASIC; and
(ii) includes the information, statements, explanations or other matters required by the approved form; and
(iii) is accompanied by any other material required by the approved form; and
(iv) is given in a manner required by the approved form (including in electronic form).
(6) Subsection (4) does not apply to the extent that complying with subsection (4) would be contrary to another law in force in this jurisdiction or elsewhere.
911N Exemption for comparably regulated providers—agents and representatives
(1) For the purposes of subsection 911G(2), this section sets out conditions for a person that proposes to rely on the exemption under paragraph 911A(2)(ep) for providing one or more kinds of financial service.
Having an agent when providing each of those financial services
(2) The person must have an agent in this jurisdiction when providing each of those financial services in reliance on the exemption unless the consecutive period during which the person so provides the financial service without an agent is less than 10 business days.
(3) The person must ensure that:
(a) if the person is a foreign company—the person’s agent is appointed under Division 2 of Part 5B.2 as the person’s local agent; or
(b) if the person is not a foreign company but is a partnership formed outside this jurisdiction—the person complies with any obligations under paragraph 912A(1)(j) relating to the person’s agent that the person would have to comply with if the person were a financial services licensee.
Note: For paragraph (a), a foreign company that appoints a local agent must give ASIC a statement under subsection 601CG(4).
Adequate oversight over representatives etc.
(4) The person must:
(a) maintain adequate oversight over its representatives who provide each of those financial services in reliance on the exemption; and
(b) ensure that its representatives who provide each of those kinds of financial service in reliance on the exemption are adequately trained, and are competent, to provide that kind of financial service.
911P Either exemption—person must notify ASIC of any contravention of a condition for the exemption
If a person contravenes a condition for an exemption under paragraph 911A(2)(eo) or (ep) that applies to the person, the person must provide ASIC with full particulars of the contravention:
(a) as soon as practicable, and before the 15th business day, after the day on which the person becomes aware, or would reasonably be expected to have become aware, of the contravention; and
(b) by giving the particulars to ASIC in a written form that:
(i) is approved by ASIC; and
(ii) includes the information, statements, explanations or other matters required by the approved form; and
(iii) is accompanied by any other material required by the approved form; and
(iv) is given in a manner required by the approved form (including in electronic form).
Note 1: A failure to provide ASIC with particulars of the contravention may result in ASIC imposing additional conditions for the exemption (see section 911T).
Note 2: For the conditions for an exemption, see subsection 911G(1) or (2).
911Q Cancelling either exemption—person contravenes a condition for the exemption
ASIC may, in writing, decide to cancel an exemption under paragraph 911A(2)(eo) or (ep) from:
(a) applying to a person for providing one or more specified kinds of financial service; or
(b) applying to a person for providing any kind of financial service;
if the person contravenes a condition for the exemption (see subsection 911G(1) or (2)).
Note 1: Paragraphs (a) and (b) mean the cancellation may be partial or complete.
Note 2: For an alternative to partially or completely cancelling the exemption, see section 911T.
911R Cancelling either exemption—person fails the fit and proper person test
(1) ASIC may, in writing, decide to cancel an exemption under paragraph 911A(2)(eo) or (ep) from applying to a person for providing any kind of financial service if ASIC reasonably believes that:
(a) the person (the first person) is not a fit and proper person to provide a financial service; or
(b) a person mentioned in a paragraph of subsection 913BA(1) in relation to the first person is not a fit and proper person for a purpose mentioned in that paragraph (assuming any reference in that paragraph to a licence were a reference to the exemption).
Note: A cancellation under this subsection is a complete cancellation.
(2) In considering whether a person referred to in paragraph (1)(a) or (b) is fit and proper for a purpose referred to in that paragraph, ASIC must have regard to the matters in section 913BB.
911S Procedures for cancelling an exemption
ASIC must first give a show cause notice
(1) ASIC may only decide under section 911Q or 911R to cancel an exemption from applying to a person after:
(a) taking reasonable steps to give the person written notice of:
(i) the proposed cancellation and the reasons for it; and
(ii) the opportunity to appear (or be represented) at a hearing before ASIC that takes place in private, and to make submissions to ASIC in relation to the matter; and
(b) taking into account any information given to ASIC at such a hearing or in such submissions.
Note 1: For decisions under section 911Q, this subsection applies whether the cancellation is partial as described in paragraph 911Q(a) or is complete as described in paragraph 911Q(b).
Note 2: A hearing mentioned in subparagraph (a)(ii) could take place without the person being physically present at the hearing (see section 911V).
Notice of cancellation
(2) If ASIC decides under section 911Q or 911R to cancel an exemption from applying to a person, ASIC must take reasonable steps to give the person written notice of:
(a) the cancellation and the reasons for it; and
(b) the day the cancellation is to take effect (which must not be before the day the notice is given to the person).
Note: The notice could also include notice of the person’s right to seek review of the decision (see subsection 1317D(2)).
911T Imposing additional conditions as an alternative to cancelling an exemption
(1) ASIC may, in writing, decide to impose one or more additional conditions for the future application of an exemption under paragraph 911A(2)(eo) or (ep) to a person for providing one or more specified kinds, or any kind, of financial service if:
(a) the person contravenes a condition for the exemption (see subsection 911G(1) or (2)); or
(b) the person fails to comply with section 911P in relation to a contravention of a condition for the exemption.
Note 1: If the person contravenes any of these additional conditions, ASIC may:
(a) cancel the exemption partially or completely (see section 911Q); or
(b) vary the additional condition, or impose another additional condition, under this section.
Note 2: The contravention may also result in a civil penalty (see subsection 911G(3)).
(2) ASIC may, in writing, vary or revoke a condition imposed under subsection (1):
(a) on the person’s request under subsection (3); or
(b) on ASIC’s own initiative.
(3) The person may request a condition imposed under subsection (1) to be varied or revoked by giving the request to ASIC in a written form that:
(a) is approved by ASIC; and
(b) includes the information, statements, explanations or other matters required by the approved form; and
(c) is accompanied by any other material required by the approved form; and
(d) is given in a manner required by the approved form (including in electronic form).
911U Procedures for additional conditions
(1) This section applies if ASIC is proposing to make any of the following decisions (the proposed decision) under section 911T in relation to a person:
(a) impose an additional condition;
(b) vary an additional condition on ASIC’s own initiative;
(c) refuse to comply with a request made by the person under subsection 911T(3).
ASIC must first give a show cause notice
(2) ASIC may only make the proposed decision after:
(a) taking reasonable steps to give the person written notice of:
(i) the proposed decision and the reasons for it; and
(ii) the opportunity to appear (or be represented) at a hearing before ASIC that takes place in private, and to make submissions to ASIC in relation to the matter; and
(b) taking into account any information given to ASIC at such a hearing or in such submissions.
Note: A hearing mentioned in subparagraph (a)(ii) could take place without the person being physically present at the hearing (see section 911V).
Notice of making the proposed decision
(3) If ASIC makes the proposed decision, ASIC must take reasonable steps to give the person written notice of:
(a) the decision and the reasons for it; and
(b) the day the decision is to take effect (which must not be before the day the notice is given to the person).
Note: The notice could also include notice of the person’s right to seek review of the decision (see subsection 1317D(2)).
911V Proceedings at hearings
(1) For the purposes of a hearing referred to in subparagraph 911S(1)(a)(ii) or 911U(2)(a)(ii), ASIC may decide to hold all or part of the hearing:
(a) at one or more physical venues (whether or not it is also held using technology); or
(b) using any technology that allows a person to participate in or be represented at the hearing, or that part of the hearing, without being physically present at the hearing or that part of the hearing.
(2) If ASIC decides to hold all or part of a hearing using technology, ASIC must ensure that the technology provides each participant in the hearing (including ASIC and the person appearing at the hearing) with a reasonable opportunity to participate in or be represented at the hearing.
(3) For the purposes of (but without limiting) subsection 57(2) of the ASIC Act, ASIC may appoint a single place and a time for the hearing if the hearing is held:
(a) at more than one physical venue (whether or not it is also held using technology); or
(b) using technology.
Example: For a hearing held using technology where not all participants are physically present, the place could be the venue at which ASIC uses the technology, and the time could be the time at that venue when the hearing is to start.
Note: Subsection 57(2) of the ASIC Act requires ASIC to appoint a place and time for the hearing and cause notice of that place and time to be given to the person who is to appear at the hearing.
911W List of comparable regulators
(1) The Minister may, by legislative instrument, determine regulators that administer broadly comparable regulatory regimes of authorisations, registrations or licences (however described) necessary to legally provide financial services in places outside this jurisdiction.
Note: Regulators determined under this subsection are relevant for:
(a) the licensing exemption under paragraph 911A(2)(ep); and
(b) the exemptions under subsections 913B(2A) and 914B(2A) from the fit and proper person test.
Matters to have regard when making determinations
(2) In deciding whether to determine a regulator under subsection (1), the Minister must have regard to:
(a) whether the regulatory regime that the regulator administers produces broadly comparable outcomes to this jurisdiction in regulating and improving the performance of:
(i) the relevant financial services system; and
(ii) the financial services providers in that system; and
(b) whether that regulatory regime is clear, transparent, certain and adequately enforced; and
(c) whether that regulatory regime is broadly consistent with the Objectives and Principles of Securities Regulation, developed by the International Organization of Securities Commissions (IOSCO) and as in force from time to time; and
(d) whether the regulator:
(i) is a signatory to the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information, developed by the IOSCO and as in force from time to time; or
(ii) is a party to any other effective cooperation arrangement with ASIC; and
(e) any relevant submission received:
(i) from the regulator; or
(ii) from any entity in relation to the regulator or that regulatory regime; and
(f) any relevant advice (including any assessment) received from ASIC in relation to the regulator or that regulatory regime; and
(g) any other matters prescribed by the regulations for the purposes of this paragraph.
The Minister may also have regard to any other matter that the Minister considers relevant.
Note: The regulation mentioned in paragraph (c), and the memorandum mentioned in subparagraph (d)(i), could in 2022 be viewed on IOSCO’s website (see https://www.iosco.org).
(3) To assist the Minister decide whether to determine a regulator under subsection (1), ASIC may:
(a) give advice to the Minister; and
(b) if the Minister requests, include with the advice an assessment of one or more of the matters in subsection (2) in relation to the regulator or the regulatory regime that the regulator administers.
5 At the end of subsection 913B(1)
Add:
Note 3: There is an exemption from paragraph (c) for certain foreign companies or partnerships (see subsection (2A)).
6 After subsection 913B(2)
Insert:
Fit and proper person test does not apply to certain foreign companies or partnerships
(2A) Paragraph (1)(c) does not apply to an applicant for an Australian financial services licence if:
(a) the applicant is a foreign company or is a partnership formed outside this jurisdiction; and
(b) the licence, if granted, would be restricted to the provision of financial services to wholesale clients; and
(c) the applicant holds any authorisations, registrations or licences (however described) that:
(i) are necessary to legally provide the same or substantially the same financial services in a place outside this jurisdiction; and
(ii) are issued (however described) by a regulator determined under subsection 911W(1).
7 Before subsection 914B(2)
Insert:
Refusing to grant the application if the fit and proper person test is not satisfied
8 After subsection 914B(2)
Insert:
(2A) However, subsection (2) does not apply if:
(a) the applicant is a foreign company or is a partnership formed outside this jurisdiction; and
(b) the licence, if the application is granted, would be restricted to the provision of financial services to wholesale clients; and
(c) the applicant holds any authorisations, registrations or licences (however described) that:
(i) are necessary to legally provide the same or substantially the same financial services in a place outside this jurisdiction; and
(ii) are issued (however described) by a regulator determined under subsection 911W(1).
9 In the appropriate position in subsection 1317E(3)
Insert:
| subsection 911G(3) | contravening a condition of a licensing exemption for foreign financial services providers | uncategorised |
10 In the appropriate position in Chapter 10
Insert:
Part 10.65—Transitional provisions relating to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022
1695 Application of amendments—exemptions from the requirement to hold an Australian financial services licence
Paragraphs 911A(2)(eo) and (ep), as inserted by Schedule 1 to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022, apply in relation to financial services provided on or after the commencement of that Schedule.
1695A Application of amendments—exemption from the fit and proper person test
(1) Subsection 913B(2A), as inserted by Schedule 1 to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022, applies in relation to applications for Australian financial services licences made on or after the commencement of that Schedule.
(2) Subsection 914B(2A), as inserted by Schedule 1 to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022, applies in relation to applications:
(a) for ASIC to take certain action in relation to Australian financial services licences; and
(b) that are made on or after the commencement of that Schedule;
whether the licences were granted before, on or after that commencement.
1695B Transitional—first list of comparable regulators
Subsection 911W(2) does not apply in relation to the determination of a regulator in the first legislative instrument made under subsection 911W(1) after the commencement of this section if the Minister is satisfied that:
(a) the regulator can be identified from a legislative instrument made by ASIC and in force immediately before the commencement of this section; and
(b) the regulator is responsible for regulating the provision of financial services by providers in a place outside this jurisdiction; and
(c) the legislative instrument exempted those providers from certain provisions of Part 7.6 (about licensing of providers of financial services) in relation to the provision of financial services.
Schedule 2—Financial reporting and auditing requirements for registrable superannuation entities
Part 1—Amendment of the Corporations Act 2001
Division 1—General amendments
Corporations Act 2001
1 Section 9 (definition of audit company)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
2 Section 9 (definition of audit‑critical employee)
After “a registered scheme,”, insert “or a registrable superannuation entity,”.
3 Section 9 (paragraph (a) of the definition of audit‑critical employee)
Omit “or of the responsible entity for the registered scheme”, substitute “, of the responsible entity for the registered scheme or of the RSE licensee for the registrable superannuation entity”.
4 Section 9 (definition of audited body)
Omit “or registered scheme” (wherever occurring), substitute “, registered scheme or registrable superannuation entity”.
5 Section 9 (definition of audit firm)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
6 Section 9
Insert:
auditor for the purposes of the RSE licensee law means an auditor appointed in fulfilment of a requirement imposed by a provision of the RSE licensee law.
7 Section 9 (definition of consolidated entity)
After “registered scheme”, insert “, registrable superannuation entity”.
8 Section 9 (note to the definition of director)
Omit “Note”, substitute “Note 1”.
9 Section 9 (at the end of the definition of director)
Add:
Note 2: For directors of registrable superannuation entities, see section 345AAC.
10 Section 9 (after paragraph (a) of the definition of financial year)
Insert:
(aa) for a registrable superannuation entity—the meaning given by section 323DAAA;
11 Section 9 (definition of individual auditor)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
12 Section 9
Insert:
officer of a registrable superannuation entity has the meaning given by section 345AAD.
13 Section 9 (definition of play a significant role)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
14 Section 9 (paragraph (a) of the definition of play a significant role)
Omit “or scheme” (wherever occurring), substitute “, scheme or entity”.
15 Section 9 (subparagraph (a)(ii) of the definition of play a significant role)
Omit “or the scheme”, substitute “, scheme or entity”.
16 Section 9 (paragraph (b) of the definition of play a significant role)
Omit “or scheme” (wherever occurring), substitute “, scheme or entity”.
17 Section 9 (definition of registrable superannuation entity)
Repeal the definition, substitute:
registrable superannuation entity:
(a) when used in a provision outside Chapter 2M or an associated definition—has the same meaning as in the Superannuation Industry (Supervision) Act 1993; and
(b) when used in Chapter 2M or an associated definition—means a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993), but does not include the following:
(i) an exempt public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993);
(ii) an excluded approved deposit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993);
(iii) a small APRA fund (within the meaning of section 1017BB).
For the purposes of this definition, each of the following is an associated definition:
(a) the definition of audit company;
(b) the definition of audit‑critical employee;
(c) the definition of audited body;
(d) the definition of audit firm;
(e) the definition of consolidated entity;
(f) the definition of director;
(g) the definition of financial year;
(h) the definition of individual auditor;
(i) the definition of officer of a registrable superannuation entity;
(j) the definition of play a significant role;
(k) the definition of RSE remuneration report.
18 Section 9
Insert:
RSE licensee law has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
RSE remuneration report means the section of the directors’ report for a financial year for a registrable superannuation entity that is included under subsection 300C(1).
19 Subsection 285(1) (heading)
After “registered schemes”, insert “, registrable superannuation entities”.
20 Subsection 285(1)
After “registered schemes”, insert “, registrable superannuation entities”.
21 Subsection 285(1) (table heading)
After “registered schemes”, insert “, registrable superannuation entities”.
22 Subsection 285(1) (table item 2, column headed “comments”)
After “(section 300A)”, insert “and registrable superannuation entities (section 300C)”.
23 Subsection 285(1) (table item 4, column headed “sections”)
After “s. 314”, insert “, 314AA”.
24 Subsection 285(1) (table item 4, column headed “comments”)
After “company limited by guarantee”, insert “or a registrable superannuation entity”.
25 Subsection 285(1) (table item 4, column headed “comments”)
Before “For deadline”, insert “For registrable superannuation entities, see section 314AA.”.
26 After subsection 285(3)
Insert:
Application to registrable superannuation entities
(3A) For the purposes of applying this Chapter to a registrable superannuation entity, the RSE licensee for the entity is responsible for the performance of obligations in respect of the entity (see section 345AAA).
27 Subsection 286(1)
After “registered scheme”, insert “, registrable superannuation entity”.
28 Subsection 289(1)
After “registered scheme”, insert “, registrable superannuation entity”.
29 Subsection 289(2)
After “registered scheme”, insert “, registrable superannuation entity”.
30 Subsection 289(3)
After “registered scheme”, insert “, registrable superannuation entity”.
31 Subsection 290(1)
After “registered scheme”, insert “, registrable superannuation entity”.
32 After paragraph 292(1)(d)
Insert:
; and (e) all registrable superannuation entities.
33 At the end of section 292
Add:
Registrable superannuation entities
(4) The regulations may provide that a financial report prepared by a registrable superannuation entity must comply with prescribed requirements.
(5) The regulations may provide that a directors’ report prepared by a registrable superannuation entity must comply with prescribed requirements.
34 Subsection 295(2)
After “registered scheme” (wherever occurring), insert “, registrable superannuation entity”.
35 Paragraphs 295(4)(c) and (ca)
After “registered scheme”, insert “, registrable superannuation entity”.
36 Paragraph 297(a)
After “registered scheme”, insert “, registrable superannuation entity”.
37 Subsection 298(1)
After “registered scheme”, insert “, registrable superannuation entity”.
38 Paragraph 298(1AA)(b)
Omit “and 300A”, substitute “, 300A and 300C”.
39 Paragraph 299(2)(a)
After “registered scheme”, insert “, registrable superannuation entity”.
40 Subsection 299(3)
After “registered scheme” (wherever occurring), insert “, registrable superannuation entity”.
41 Subsection 300(1)
After “year must”, insert “(in the case of a company, registered scheme or disclosing entity)”.
42 Paragraph 300(3)(b)
After “registered scheme”, insert “, registrable superannuation entity”.
43 Subsection 300(11B)
After “registered scheme”, insert “, registrable superannuation entity”.
44 After section 300B
Insert:
300C Annual directors’ report—registrable superannuation entities
Remuneration
(1) The directors’ report for a financial year for a registrable superannuation entity must also include (in a separate and clearly identified section of the report):
(a) the prescribed details in relation to the remuneration of each member of the key management personnel for the registrable superannuation entity; and
(b) such other matters (if any) relating to such remuneration as are prescribed by the regulations.
(2) The material referred to in subsection (1) must be included in the directors’ report under the heading “Remuneration report”.
(3) Without limiting paragraph (1)(a), the regulations may:
(a) provide that the value of an element of remuneration is to be determined, for the purposes of this section, in a particular way or by reference to a particular standard; and
(b) provide that details to be given of an element of remuneration must relate to the remuneration provided in:
(i) the financial year to which the directors’ report relates; and
(ii) the earlier financial years specified in the regulations.
Non‑audit services and auditor independence
(4) The directors’ report for a registrable superannuation entity for a financial year must also include the following in relation to each auditor:
(a) details of the amounts paid or payable to the auditor for non‑audit services provided, during the year, by the auditor (or by another person or firm on the auditor’s behalf);
(b) a statement whether the directors are satisfied that the provision of non‑audit services, during the year, by the auditor (or by another person or firm on the auditor’s behalf) is compatible with the general standard of independence for auditors imposed by this Act;
(c) a statement of the directors’ reasons for being satisfied that the provision of those non‑audit services, during the year, by the auditor (or by another person or firm on the auditor’s behalf) did not compromise the auditor independence requirements of this Act.
(5) The details and statements mentioned in subsection (4) must be included in the directors’ report under the heading “Non‑audit services”.
(6) For the purposes of paragraph (4)(a), the details of amounts paid or payable to an auditor for non‑audit services provided, during the year, by the auditor (or by another person or firm on the auditor’s behalf) are:
(a) the name of the auditor; and
(b) the dollar amount that:
(i) the registrable superannuation entity; or
(ii) the RSE licensee for the registrable superannuation entity;
paid, or is liable to pay, for each of those non‑audit services.
(7) The statements under paragraphs (4)(b) and (c) must be made in accordance with advice provided by the registrable superannuation entity’s audit committee.
(8) For the purposes of subsection (7), a statement is taken to be made in accordance with advice provided by the registrable superannuation entity’s audit committee only if:
(a) the statement is consistent with that advice and does not contain any material omission of material included in that advice; and
(b) the advice is endorsed by a resolution passed by the members of the audit committee; and
(c) the advice is written advice signed by a member of the audit committee on behalf of the audit committee and given to the directors.
Audit
(9) If an individual plays a significant role in the audit of a registrable superannuation entity for a financial year in reliance on an approval granted under section 324DAA, the directors’ report for the entity for the financial year must also include details of, and reasons for, the approval.
(10) If a registered company auditor plays a significant role in the audit of a registrable superannuation entity for a financial year in reliance on a declaration made under section 342A, the directors’ report for the entity for the financial year must also include details of the declaration.
45 Subsection 301(1)
After “registered scheme”, insert “, registrable superannuation entity”.
46 At the end of section 301
Add:
Registrable superannuation entities
(6) The following reports relating to:
(a) a registrable superannuation entity; and
(b) a financial year;
may be set out in the same document:
(c) an auditor’s report obtained by the entity under subsection (1);
(d) an auditor’s report provided in relation to the entity under a provision of the RSE licensee law.
47 Paragraphs 307(c) and (d)
After “registered scheme”, insert “, registrable superannuation entity”.
48 Subsections 307C(1) and (3)
After “registered scheme”, insert “, registrable superannuation entity”.
49 Subparagraph 307C(5)(a)(i)
After “registered scheme”, insert “, registrable superannuation entity”.
50 Paragraph 307C(5A)(a)
After “registered scheme”, insert “, registrable superannuation entity”.
51 After subsection 308(3C)
Insert:
(3D) If the directors’ report for the financial year includes an RSE remuneration report, the auditor must also report to members on whether the auditor is of the opinion that the remuneration report complies with section 300C. If not of that opinion, the auditor’s report must say why.
52 Subsection 308(5)
After “(3C)”, insert “, (3D)”.
53 Section 310
Before “The auditor”, insert “(1)”.
54 Section 310
Omit “A request”, substitute “A requirement”.
55 At the end of section 310
Add:
(2) The auditor:
(a) has a right of access at all reasonable times to the books of a registrable superannuation entity; and
(b) may, by written notice, require an officer of a registrable superannuation entity to:
(i) give the auditor information, explanations or other assistance for the purposes of the audit or review; and
(ii) do so within 14 days after the notice is given.
A requirement under paragraph (b) must be a reasonable one.
56 Subsection 311(1)
After “an audit”, insert “(other than an audit of a registrable superannuation entity)”.
57 After subsection 311(1)
Insert:
(1A) An individual auditor conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a) the auditor suspects on reasonable grounds that there are circumstances that amount to a contravention of this Act; and
(b) the auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor forms that suspicion.
(1B) An individual auditor commits an offence if the auditor contravenes subsection (1A).
(1C) An individual auditor commits an offence of strict liability if the auditor contravenes subsection (1A).
58 Subsection 311(2)
After “conducting an audit”, insert “(other than an audit of a registrable superannuation entity)”.
59 After subsection 311(2)
Insert:
(2A) An audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a) the lead auditor for the audit suspects on reasonable grounds that there are circumstances that amount to a contravention of this Act; and
(b) the lead auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor forms that suspicion.
(2B) An audit company commits an offence if the company contravenes subsection (2A).
(2C) An audit company commits an offence of strict liability if the company contravenes subsection (2A).
Contravention by member of audit firm
(2D) A person (the defendant) contravenes this subsection if:
(a) an audit firm is conducting an audit of a registrable superannuation entity; and
(b) the defendant is a member of the firm; and
(c) the lead auditor for the audit suspects on reasonable grounds that there are circumstances that amount to a contravention of this Act; and
(d) the lead auditor does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor forms that suspicion.
(2E) A person commits an offence if the person contravenes subsection (2D).
(2F) A person commits an offence of strict liability if the person contravenes subsection (2D).
(2G) A member of an audit firm does not commit an offence at a particular time because of a contravention of subsection (2D) if the member:
(a) does not know at that time of the circumstances that constitute the contravention of subsection (2D); 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.
60 Paragraph 311(3)(a)
After “an audit”, insert “(other than an audit of a registrable superannuation entity)”.
61 After subsection 311(3)
Insert:
(3A) 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 suspects on reasonable grounds that there are circumstances that amount to a contravention of this Act; and
(c) the person does not notify ASIC in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person forms that suspicion.
(3B) A person commits an offence if the person contravenes subsection (3A).
(3C) A person commits an offence of strict liability if the person contravenes subsection (3A).
62 Paragraph 312(1)(b)
Omit “section 310”, substitute “subsection 310(1)”.
63 At the end of section 312
Add:
(3) An officer of a registrable superannuation entity must:
(a) allow the auditor access to the books of the entity; and
(b) give the auditor any information, explanation or assistance required under subsection 310(2).
Note: Books include registers and documents generally (not only the accounting “books”): see the definition of books in section 9.
(4) An offence based on subsection (3) is an offence of strict liability.
64 After section 314
Insert:
314AA Annual financial reporting by registrable superannuation entities to members
(1) A registrable superannuation entity must report to members for a financial year by providing all of the following reports:
(a) the financial report for the year;
(b) the directors’ report for the year (see sections 298, 299 and 300C);
(c) the auditor’s report on the financial report.
(2) A registrable superannuation entity must provide the reports for a financial year by making a copy of the reports publicly available on the entity’s website on and after the day on which the reports are lodged with ASIC under section 319.
(3) An offence based on subsection (1) is an offence of strict liability.
65 After subsection 315(3)
Insert:
Registrable superannuation entities
(3AA) A registrable superannuation entity must report to members under section 314AA within 3 months after the end of the financial year.
66 Subsection 319(1)
After “registered scheme”, insert “, registrable superannuation entity”.
67 Subsection 319(1)
Omit “This”, substitute “In the case of a company, registered scheme or disclosing entity, this”.
68 Paragraph 319(3)(a)
After “registered scheme”, insert “, registrable superannuation entity”.
69 At the end of section 319
Add:
Registrable superannuation entities
(4) The regulations may require that the lodgment of a report by a registrable superannuation entity under subsection (1) must be in a prescribed manner.
(5) A manner prescribed for the purposes of subsection (4) may involve electronic communication.
(6) Subsection (5) does not limit subsection (4).
(7) Section 352 does not apply to the lodgment of a report if regulations are in force under subsection (4) of this section in relation to the lodgment of the report.
70 Subsection 321(1)
After “registered scheme”, insert “, registrable superannuation entity”.
71 After subsection 322(2)
Insert:
Financial reports and directors’ reports lodged by registrable superannuation entities
(2A) If:
(a) a financial report or directors’ report for a financial year relates to a registrable superannuation entity; and
(b) the report is amended after it is lodged with ASIC;
the entity must, within 14 days after the amendment:
(c) lodge the amended report with ASIC; and
(d) make both of the following publicly available on the entity’s website on and after the day on which the amended report is lodged with ASIC under paragraph (c):
(i) a copy of the amended report;
(ii) a description of the nature of the amendment.
72 Subsection 322(3)
Omit “or (2)”, substitute “, (2) or (2A)”.
73 Subsection 323(1)
After “registered scheme” (wherever occurring), insert “, registrable superannuation entity”.
74 Subsection 323A(2)
After “registered scheme”, insert “, registrable superannuation entity”.
75 Subsection 323B(1)
After “registered scheme”, insert “, registrable superannuation entity”.
76 Section 323C
After “registered scheme”, insert “, registrable superannuation entity”.
77 After section 323D
Insert:
323DAAA Financial years for registrable superannuation entities
(1) The financial year for a registrable superannuation entity is the entity’s year of income (within the meaning of the Superannuation Industry (Supervision) Act 1993).
Synchronisation of financial years where consolidated financial statements are required
(2) A registrable superannuation entity that has to prepare consolidated financial statements must do whatever is necessary to ensure that the financial years of the consolidated entities are synchronised with its own financial years. It must achieve this synchronisation by the end of 12 months after the situation that calls for consolidation arises.
(3) An offence based on subsection (2) is an offence of strict liability.
(4) To facilitate this synchronisation, the financial year for a controlled entity may be extended or shortened. The extended financial year cannot be longer than 18 months.
78 Division 1 of Part 2M.4 (heading)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
79 Section 324AA
Before “Subject to this Part”, insert “(1)”.
80 At the end of section 324AA
Add:
(2) Subject to this Part, the following may be appointed as auditor for a registrable superannuation entity for the purposes of this Chapter:
(a) an individual;
(b) a firm;
(c) a company.
The entity may only have one auditor.
Note: In addition to audit requirements under this Chapter, a registrable superannuation entity has audit requirements under the RSE licensee law. Subsection 35AC(8) of the Superannuation Industry (Supervision) Act 1993 provides that the RSE licensee for a registrable superannuation entity must ensure that the auditor of the entity for the purposes of the RSE licensee law is the individual, firm or company that is the auditor of the entity for the purposes of this Chapter.
81 Subsections 324AB(1) and (2)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
82 Subsection 324AB(2)
Omit “or scheme”, substitute “, scheme or entity”.
83 Subsection 324AB(3)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
84 Paragraph 324AC(1)(a)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
85 Subsections 324AC(4) and (5)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
86 Subsection 324AD(1)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
87 Section 324AE
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
88 Subsections 324AF(1) and (2)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
89 Subparagraphs 324BA(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
90 Subparagraphs 324BB(1)(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
91 Subparagraphs 324BB(2)(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
92 Subparagraphs 324BC(1)(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
93 Subparagraphs 324BC(2)(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
94 Subparagraphs 324BC(3)(a)(i), (ii) and (iii)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
95 After Division 2 of Part 2M.4
Insert:
Division 2A—Eligibility requirements for auditors of registrable superannuation entities
324BF Eligibility requirements for auditors of registrable superannuation entities
(1) An individual contravenes this section if:
(a) the individual:
(i) consents to be appointed as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(ii) acts as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(iii) prepares a report required by this Act to be prepared by an auditor of a registrable superannuation entity; and
(b) the person:
(i) does not meet the eligibility criteria for auditors of registrable superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993) set out in the prudential standards (within the meaning of that Act); or
(ii) has been disqualified from being, or acting as, an auditor of a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993) under section 130D of that Act; or
(iii) is a member or employee of a firm that is disqualified under section 130EA of the Superannuation Industry (Supervision) Act 1993; or
(iv) is a director or employee of a company that is disqualified under section 130EA of the Superannuation Industry (Supervision) Act 1993.
(2) A company contravenes this section if:
(a) the company:
(i) consents to be appointed as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(ii) acts as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(iii) prepares a report required by this Act to be prepared by an auditor of a registrable superannuation entity; and
(b) the company is disqualified under section 130EA of the Superannuation Industry (Supervision) Act 1993.
(3) A member of a firm contravenes this section if:
(a) the firm:
(i) consents to be appointed as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(ii) acts as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(iii) prepares a report required by this Act to be prepared by an auditor of a registrable superannuation entity; and
(b) the firm is disqualified under section 130EA of the Superannuation Industry (Supervision) Act 1993.
(4) A company contravenes this section if:
(a) the company:
(i) consents to be appointed as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(ii) acts as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(iii) prepares a report required by this Act to be prepared by an auditor of a registrable superannuation entity; and
(b) the lead auditor for an audit of a registrable superannuation entity conducted by the company:
(i) does not meet the eligibility criteria for auditors of registrable superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993) set out in the prudential standards (within the meaning of that Act); or
(ii) has been disqualified from being, or acting as, an auditor of a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993) under section 130D of that Act.
(5) A member of a firm contravenes this section if:
(a) the firm:
(i) consents to be appointed as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(ii) acts as auditor of a registrable superannuation entity for the purposes of this Chapter; or
(iii) prepares a report required by this Act to be prepared by an auditor of a registrable superannuation entity; and
(b) the lead auditor for an audit of a registrable superannuation entity conducted by the firm:
(i) does not meet the eligibility criteria for auditors of registrable superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993) set out in the prudential standards (within the meaning of that Act); or
(ii) has been disqualified from being, or acting as, an auditor of a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993) under section 130D of that Act.
96 Subsection 324CA(1A) (note 2)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
97 Subsection 324CA(1A) (at the end of note 2)
Add:
; or (d) subsection 331AH(3) or (5) (registrable superannuation entity).
98 Subsection 324CB(1A) (note 2)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
99 Subsection 324CB(1A) (at the end of note 2)
Add:
; or (d) subsection 331AH(4) (registrable superannuation entity).
100 Subsection 324CC(1A) (note 2)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
101 Subsection 324CC(1A) (at the end of note 2)
Add:
; or (d) subsection 331AH(5) (registrable superannuation entity).
102 Subsection 324CD(2) (at the end of the table)
Add:
| 4 | a registrable superannuation entity | the RSE licensee for the registrable superannuation entity, if the RSE licensee is a body corporate or a constitutional corporation (within the meaning of the Superannuation Industry (Supervision) Act 1993); or a current or former director of the registrable superannuation entity; or a person currently or formerly involved in the management of the registrable superannuation entity; or a person currently or formerly involved in the management of the RSE licensee for the registrable superannuation entity; or a connected entity (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the RSE licensee for the registrable superannuation entity. |
103 Subsection 324CE(1A) (note)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
104 Subsection 324CE(1A) (at the end of the note)
Add:
; or (d) subsection 331AH(3) (registrable superannuation entity).
105 After subsection 324CE(6)
Insert:
(6A) Paragraphs (6)(a) and (b) do not apply if:
(a) the audited body is a registrable superannuation entity; and
(b) the services are required or permitted to be provided under the prudential standards (within the meaning of the Superannuation Industry (Supervision) Act 1993).
106 Subsection 324CF(1A) (note)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
107 Subsection 324CF(1A) (at the end of the note)
Add:
; or (d) subsection 331AH(4) (registrable superannuation entity).
108 After subsection 324CF(6)
Insert:
(6A) Paragraphs (6)(a) and (b) do not apply if:
(a) the audited body is a registrable superannuation entity; and
(b) the services are required or permitted to be provided under the prudential standards (within the meaning of the Superannuation Industry (Supervision) Act 1993).
109 Subsection 324CG(1A) (note)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
110 Subsection 324CG(1A) (at the end of the note)
Add:
; or (d) subsection 331AH(3) (registrable superannuation entity).
111 Subsection 324CG(5A) (note)
Omit “or a registered scheme”, substitute “, a registered scheme or a registrable superannuation entity”.
112 Subsection 324CG(5A) (at the end of the note)
Add:
; or (d) subsection 331AH(3) (registrable superannuation entity).
113 After subsection 324CG(10)
Insert:
(10A) Paragraphs (10)(a) and (b) do not apply if:
(a) the audited body is a registrable superannuation entity; and
(b) the services are required or permitted to be provided under the prudential standards (within the meaning of the Superannuation Industry (Supervision) Act 1993).
114 After subsection 324CH(2)
Insert:
Applying table if audited body is registrable superannuation entity
(2A) If the audited body is a registrable superannuation entity, apply the table in subsection (1) as if:
(a) references to the audited body in items 1 to 9, and items 15 to 19, in the table were references to the RSE licensee for the registrable superannuation entity; and
(b) references to an interest in the audited body in items 10 to 12 in the table were references to an interest in either:
(i) the registrable superannuation entity; or
(ii) the RSE licensee for the registrable superannuation entity; and
(c) references to an investment in an entity that has a controlling interest in the audited body in items 13 and 14 in the table were references to an investment in an entity that has a controlling interest in the RSE licensee for the registrable superannuation entity.
115 At the end of Subdivision C of Division 3 of Part 2M.4
Add:
324CLA Extended meaning of officer of a registrable superannuation entity
(1) For the purposes of this Division, a person is taken to be an officer of a registrable superannuation entity if:
(a) the person is an officer of:
(i) a related body corporate of the RSE licensee for the registrable superannuation entity; or
(ii) an entity that the RSE licensee for the registrable superannuation entity controls; or
(b) the person has, at any time within the immediately preceding period of 12 months, been an officer or promoter of:
(i) a related body corporate of the RSE licensee for the registrable superannuation entity; or
(ii) an entity that the RSE licensee for the registrable superannuation entity controlled at that time.
Note: Officer of a registrable superannuation entity is defined in section 345AAD. This subsection extends the meaning of that expression for the purposes of this Division.
(2) Paragraph (1)(b) does not apply if ASIC directs that it does not apply in relation to the person in relation to the RSE licensee for the registrable superannuation entity. ASIC may give the direction only if ASIC thinks that it is appropriate to do so in the circumstances of the case.
116 Paragraph 324CM(1)(a)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
117 Paragraph 324CM(1)(c)
Omit “or scheme”, substitute “, scheme or entity”.
118 Paragraph 324CM(2)(a)
Omit “or a registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
119 Paragraph 324CM(2)(c)
Omit “or scheme”, substitute “, scheme or entity”.
120 Paragraph 324CM(3)(d)
Omit “or a registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
121 Paragraph 324CM(3)(f)
Omit “or scheme”, substitute “, scheme or entity”.
122 Division 5 of Part 2M.4 (at the end of the heading)
Add “, listed registered schemes and registrable superannuation entities”.
123 Section 324DA (heading)
Omit “or listed registered scheme”, substitute “, listed registered scheme or registrable superannuation entity”.
124 Subsection 324DA(1)
Omit “or listed registered scheme”, substitute “, listed registered scheme or registrable superannuation entity”.
125 Subsection 324DA(1)
Omit “or the scheme” (wherever occurring), substitute “, the scheme or the entity”.
126 Subsection 324DA(2)
Omit “or listed registered scheme”, substitute “, listed registered scheme or registrable superannuation entity”.
127 Subsection 324DA(2)
Omit “or scheme”, substitute “, the scheme or the entity”.
128 Subsection 324DA(3)
Omit “or scheme” (wherever occurring), substitute “, scheme or entity”.
129 Subsection 324DAA(1)
Omit “or of a listed registered scheme”, substitute “or of a listed registered scheme or registrable superannuation entity”.
130 Subsection 324DAA(1)
Omit “or scheme”, substitute “, scheme or entity”.
131 Subsection 324DAA(3)
Omit “or scheme”, substitute “, scheme or entity”.
132 Subsection 324DAA(5)
Omit “or scheme”, substitute “, scheme or entity”.
133 Subsection 324DAB(1) (heading)
Omit “or scheme”, substitute “, scheme or entity”.
134 Subsection 324DAB(1)
Omit “or the responsible entity of a listed registered scheme”, substitute “the responsible entity of a listed registered scheme, or the RSE licensee for a registrable superannuation entity”.
135 Paragraph 324DAB(2)(c)
Omit “or scheme”, substitute “, scheme or entity”.
136 Subparagraph 324DAB(2)(d)(i)
Omit “or scheme”, substitute “, scheme or entity”.
137 Subsection 324DAB(4)
Omit “or of a listed registered scheme”, substitute “of a listed registered scheme or of a registrable superannuation entity”.
138 Section 324DAC
Omit “or of a listed registered scheme”, substitute “of a listed registered scheme or of a registrable superannuation entity”.
139 After paragraph 324DAC(a)
Insert:
(aa) if the approval was granted by the directors of a registrable superannuation entity—give a copy of the resolution to APRA; and
140 Section 324DAC (note)
After “300”, insert “or 300C”.
141 Paragraph 324DB(a)
Omit “or listed registered scheme”, substitute “, listed registered scheme or registrable superannuation entity”.
142 Paragraph 324DC(1)(a)
Omit “or listed registered scheme’s auditor”, substitute “, listed registered scheme’s auditor or registrable superannuation entity’s auditor”.
143 Paragraph 324DC(1)(b)
Omit “or scheme’s”, substitute “, scheme’s or entity’s”.
144 Paragraph 324DC(1)(c)
Omit “or scheme”, substitute “, scheme or entity”.
145 Subparagraphs 324DC(1)(f)(i) and (ii)
Omit “or scheme”, substitute “, scheme or entity”.
146 Paragraph 324DC(2)(a)
Omit “or listed registered scheme’s auditor”, substitute “, listed registered scheme’s auditor or registrable superannuation entity’s auditor”.
147 Paragraph 324DC(2)(b)
Omit “or scheme’s”, substitute “, scheme’s or entity’s”.
148 Paragraph 324DC(2)(c)
Omit “or scheme”, substitute “, scheme or entity”.
149 Paragraph 324DD(1)(a)
Omit “or listed registered scheme’s auditor”, substitute “, listed registered scheme’s auditor or registrable superannuation entity’s auditor”.
150 Paragraph 324DD(1)(b)
Omit “or scheme’s”, substitute “, scheme’s or entity’s”.
151 Paragraph 324DD(1)(c)
Omit “or scheme”, substitute “, scheme or entity”.
152 Subparagraphs 324DD(1)(e)(i) and (ii)
Omit “or scheme”, substitute “, scheme or entity”.
153 Paragraph 324DD(2)(a)
Omit “or listed registered scheme’s auditor”, substitute “, listed registered scheme’s auditor or registrable superannuation entity’s auditor”.
154 Paragraph 324DD(2)(b)
Omit “or scheme’s”, substitute “, scheme’s or entity’s”.
155 Paragraph 324DD(2)(c)
Omit “or scheme”, substitute “, scheme or entity”.
156 Subparagraphs 324DD(2)(f)(i) and (ii)
Omit “or scheme”, substitute “, scheme or entity”.
157 Paragraph 324DD(3)(a)
Omit “or listed registered scheme’s auditor”, substitute “, listed registered scheme’s auditor or registrable superannuation entity’s auditor”.
158 Paragraph 324DD(3)(b)
Omit “or scheme’s”, substitute “, scheme’s or entity’s”.
159 Paragraph 324DD(3)(c)
Omit “or scheme”, substitute “, scheme or entity”.
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.
161 After paragraph 332A(1)(b)
Insert:
(ba) registrable superannuation entities;
162 Subsection 334(5)
After “registered scheme”, insert “, registrable superannuation entity”.
163 Section 340 (heading)
After “registered schemes”, insert “, registrable superannuation entities”.
164 Subsection 340(1)
After “registered scheme”, insert “, registrable superannuation entity”.
165 Section 341 (heading)
After “registered schemes”, insert “, registrable superannuation entities”.
166 Subsection 341(1)
After “registered schemes” (wherever occurring), insert “, registrable superannuation entities”.
167 Section 342 (heading)
After “registered schemes,”, insert “registrable superannuation entities,”.
168 After subsection 342A(5)
Insert:
(5A) Before making a declaration in relation to the audit of a registrable superannuation entity or a class of registrable superannuation entities, ASIC must consult APRA.
169 At the end of section 342A
Add:
(9) If ASIC makes a declaration in relation to the audit of a registrable superannuation entity or a class of registrable superannuation entities, ASIC must:
(a) notify APRA of the declaration; and
(b) do so as soon as practicable after making the declaration.
170 Section 342B (heading)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
171 Subsection 342B(1)
Repeal the subsection, substitute:
(1) If a registered company auditor plays a significant role in the audit of a company, registered scheme or registrable superannuation entity in reliance on a declaration by ASIC under section 342A, the auditor must give:
(a) the company; or
(b) the responsible entity for the registered scheme; or
(c) the registrable superannuation entity;
written notice of the declaration.
172 Paragraph 342B(2)(b)
Omit “or registered scheme”, substitute “, registered scheme or registrable superannuation entity”.
173 Subsection 344(1)
After “registered scheme”, insert “, registrable superannuation entity”.
174 At the end of Chapter 2M
Add:
Part 2M.8—Additional provisions relating to registrable superannuation entities
345AAA Obligations of registrable superannuation entities
An obligation imposed on a registrable superannuation entity by a provision of this Chapter is to be discharged by the RSE licensee for the entity.
345AAB Notices etc. given to RSE licensees
For the purposes of this Chapter, if a notice, direction or other document is given to the RSE licensee for a registrable superannuation entity, the notice, direction or other document is taken to be given to the entity.
345AAC Directors of registrable superannuation entities
(1) For the purposes of this Chapter, director of a registrable superannuation entity means:
(a) if the RSE licensee for the entity is a constitutional corporation or a body corporate—a director of the constitutional corporation or body corporate; or
(b) if the RSE licensee for the entity is a group of individual trustees—each of those trustees.
(2) For the purposes of this section, constitutional corporation has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
345AAD Officers of registrable superannuation entities
(1) For the purposes of this Chapter, officer of a registrable superannuation entity means:
(a) if the RSE licensee for the entity is a constitutional corporation or a body corporate—an officer of the constitutional corporation or body corporate; or
(b) if the RSE licensee for the entity is a group of individual trustees:
(i) each of those trustees; or
(ii) a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or
(iii) a person who has the capacity to affect significantly the entity’s financial standing.
(2) For the purposes of this section, constitutional corporation has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
175 After subsection 1017C(3)
Insert:
Reports prepared by a registrable superannuation entity etc.
(3AA) If the financial product is a superannuation product that relates to a registrable superannuation entity (within the meaning of Chapter 2M), the issuer must, on request in writing by a person who is a concerned person, give the person:
(a) a copy of the financial report of the entity for a specified financial year; and
(b) a copy of the directors’ report of the entity for a specified financial year; and
(c) a copy of the auditor’s report on that financial report.
Each copy must be given in accordance with the other requirements of this section.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
176 In the appropriate position in Chapter 10
Insert:
Part 10.58—Application and transitional provisions relating to Schedule 2 to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022
1684 Financial reporting and auditing requirements for registrable superannuation entities
The amendments of this Act made by Division 1 of Part 1 of Schedule 2 to the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Act 2022 so far as they relate to:
(a) a financial report for a financial year; or
(b) a directors’ report for a financial year; or
(c) an audit of a financial report for a financial year;
apply in relation to the report or audit if the financial year begins on or after 1 July 2023.
177 Schedule 3 (table item dealing with Subsections 308(1), (2), (3), (3AA), (3AB), (3A), (3C) and (4), column headed “Provision”)
After “(3C)” insert “, (3D)”.
178 Schedule 3 (after the table item dealing with Subsections 311(1), (2) and (3))
Insert:
| Subsection 311(2B) | 250 penalty units |
| Subsection 311(2C) | 125 penalty units |
| Subsections 311(1B), (2E) and (3B) | 50 penalty units |
| Subsections 311(1C), (2F) and (3C) | 25 penalty units |
179 Schedule 3 (table item dealing with Subsection 312(1), column headed “Provision”)
Omit “Subsection 312(1)”, substitute “Subsections 312(1) and (3)”.
180 In the appropriate position in Schedule 3
Insert:
| Subsection 314AA(1) | 30 penalty units |
181 Schedule 3 (table item dealing with Subsections 322(1), (1A) and (2), column headed “Provision”)
Omit “and (2)”, substitute “(2) and (2A)”.
182 In the appropriate position in Schedule 3
Insert:
| Subsection 323DAAA(2) | 30 penalty units |
183 In the appropriate position in Schedule 3
Insert:
| Subsections 324BF(2) and (4) | 300 penalty units |
| Subsections 324BF(1), (3) and (5) | 6 months imprisonment |
184 In the appropriate position in Schedule 3
Insert:
| Subsections 331AF(1) and (3) | 6 months imprisonment |
| Subsections 331AG(1) and (2) | 6 months imprisonment |
185 In the appropriate position in Schedule 3
Insert:
| Subsection 1017C(3AA) | 2 years imprisonment |
Division 2—Amendments contingent on the commencement of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020
Corporations Act 2001
186 Paragraphs 322(2A)(b), (c) and (d)
Omit “ASIC”, substitute “the Registrar”.
187 Subsection 331AK(6)
Omit “ASIC”, substitute “the Registrar”.
Part 2—Amendments of other Acts
Australian Securities and Investments Commission Act 2001
188 Subparagraph 127(2D)(b)(i)
After “registered scheme”, insert “, registrable superannuation entity”.
189 Paragraph 127(2D)(c)
After “registered scheme”, insert “, to the RSE licensee for the registrable superannuation entity”.
190 Subsection 127(2D)
After “responsible entity” (last occurring), insert “, RSE licensee”.
191 Subsection 127(2F)
After “registered scheme”, insert “, registrable superannuation entity”.
192 Subsection 127(2G)
After “responsible entity” (wherever occurring), insert “, RSE licensee”.
193 Subsection 127(9)
Insert:
registrable superannuation entity has the same meaning as in Chapter 2M of the Corporations Act 2001.
RSE licensee has the same meaning as in the SIS Act.
Superannuation Industry (Supervision) Act 1993
194 Subsection 6(1) (table item 40, column headed “Provisions”)
Omit “43”, substitute “43A”.
195 Subsection 6(1) (after table item 43)
Insert:
| 43A | Sections 130D and 130E | disqualifying and removing actuaries and auditors | (a) both APRA and ASIC, to the extent the provisions relate to auditors; and (b) APRA, to the extent the provisions relate to actuaries |
196 Subsection 10(1)
Insert:
individual RSE auditor means an individual who is appointed as auditor of a registrable superannuation entity.
lead auditor has the meaning given by section 11F.
registered company auditor has the same meaning as in the Corporations Act 2001.
RSE audit company means a company that is appointed as auditor of a registrable superannuation entity.
RSE audit firm means a firm that is appointed as auditor of a registrable superannuation entity.
197 Subsection 10(1) (definition of RSE auditor)
Repeal the definition, substitute:
RSE auditor means:
(a) an individual RSE auditor; or
(b) an RSE audit firm; or
(c) an RSE audit company.
198 After section 11E
Insert:
11F Lead auditor
If an RSE audit firm or RSE audit company conducts an audit of a registrable superannuation entity, the lead auditor for the audit is the registered company auditor who is primarily responsible to the RSE audit firm or the RSE audit company for the conduct of the audit.
199 Paragraph 29D(1)(a)
After “the RSE licensee law”, insert “or Chapter 2M of the Corporations Act 2001”.
200 Paragraph 29E(1)(a)
After “the RSE licensee law”, insert “and Chapter 2M of the Corporations Act 2001”.
201 Paragraph 29JA(1A)(c)
After “the RSE licensee law”, insert “or Chapter 2M of the Corporations Act 2001”.
202 Paragraph 29P(2)(c)
Repeal the paragraph, substitute:
(c) any individual, company or firm that is the RSE auditor of the registrable superannuation entity;
(ca) any individual, company or firm that has been an RSE auditor of the registrable superannuation entity for the year of income of the entity;
203 After paragraph 29P(3)(a)
Insert:
(aa) include in the notice links to each of the following reports that are publicly available on the registrable superannuation entity’s website:
(i) the financial report for the year of income of the entity;
(ii) the directors’ report for the year of income of the entity;
(iii) the auditor’s report on the financial report for the year of income of the entity; and
204 Subsection 29PA(3)
Repeal the subsection, substitute:
(3) If:
(a) a person (the relevant person) has been an individual RSE auditor of a registrable superannuation entity for a year of income of the entity; and
(b) the relevant person is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3);
then:
(c) if the relevant person is a practising auditor—the relevant person must attend the meeting; and
(d) if:
(i) the relevant person is not a practising auditor; and
(ii) another person is the individual RSE auditor of the entity;
the individual RSE auditor must attend the meeting; and
(e) if:
(i) the relevant person is not a practising auditor; and
(ii) a firm or company is the RSE auditor of the entity; and
(iii) the firm or company is conducting an audit of the entity;
the lead auditor of the audit must attend the meeting.
Penalty: 50 penalty units.
(3A) If:
(a) a firm or company has been an RSE auditor of a registrable superannuation entity for a year of income of the entity; and
(b) the firm or company is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3); and
(c) a person (the relevant lead auditor) was the lead auditor of the audit of the entity that was conducted by the firm or company for the year;
then:
(d) if:
(i) the firm or company conducts audits; and
(ii) the relevant lead auditor is a member or employee of the firm or a director or employee of the company;
the relevant lead auditor must attend the meeting; and
(e) if:
(i) the firm or company conducts audits; and
(ii) paragraph (d) does not apply; and
(iii) a person (the relevant audit team member) was a member of the audit team that was involved in the audit of the entity that was conducted by the firm or company for the year; and
(iv) the relevant audit team member is a member or employee of the firm or a director or employee of the company; and
(v) the relevant audit team member is not the lead auditor of the audit of the entity;
the relevant audit team member must attend the meeting; and
(f) if:
(i) the firm or company does not conduct audits; and
(ii) another person is the individual RSE auditor of the entity;
the individual RSE auditor must attend the meeting; and
(g) if:
(i) the firm or company does not conduct audits; and
(ii) another firm or company is the RSE auditor of the entity; and
(iii) the other firm or company is conducting an audit of the entity;
the lead auditor of the audit must attend the meeting.
Penalty: 50 penalty units.
(3B) If:
(a) 2 or more persons are required by paragraph (3A)(e) to attend a meeting; and
(b) one of those persons attends the meeting;
the remaining persons are not required to attend the meeting.
205 Subsection 29PA(5)
After “(3)”, insert “, (3A)”.
206 Subsection 29PD(1)
Repeal the subsection, substitute:
(1) This section applies if:
(a) a person is required by subsection 29P(3) or (3A) to attend an annual members’ meeting for a registrable superannuation entity for a year of income of the entity; and
(b) a member of the entity asks the person a question at the meeting.
207 Subsection 29PD(2)
Omit “auditor”, substitute “person”.
208 Subparagraph 29PD(3)(a)(iii)
Omit “auditor”, substitute “individual RSE auditor, the RSE audit firm or the RSE audit company, as the case may be”.
209 Section 29QB
Repeal the section.
210 Subparagraph 35A(1)(b)(ii)
After “the RSE licensee law”, insert “or Chapter 2M of the Corporations Act 2001”.
211 Paragraph 35A(1)(c)
After “the RSE licensee law”, insert “and Chapter 2M of the Corporations Act 2001 (if applicable)”.
212 After subsection 35A(1)
Insert:
(1A) If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that the records are retained for at least 7 years after the end of the year of income to which the transactions relate.
213 Paragraph 35A(2)(a)
Repeal the paragraph.
214 Subsection 35A(6)
Repeal the subsection, substitute:
Offences
(6) A trustee commits an offence if the trustee contravenes subsection (1) or (1A).
Penalty: Imprisonment for 2 years.
215 Subsection 35A(7)
After “(1)”, insert “, (1A)”.
216 Subsection 35A(7) (penalty)
Omit “50 penalty units”, substitute “60 penalty units”.
217 Subsection 35AB(3) (penalty)
Omit “50 penalty units”, substitute “60 penalty units”.
218 After subsection 35AC(1)
Insert:
(1A) Subject to this Part, the following may be appointed as an auditor of the registrable superannuation entity:
(a) an individual;
(b) a firm;
(c) a company.
The entity may only have one auditor.
Note: In addition to audit requirements under the RSE licensee law, a registrable superannuation entity may have audit requirements under Chapter 2M of the Corporations Act 2001. Subsection (8) sets out a rule that is applicable in such a case.
219 Subsection 35AC(2)
Omit “a person”, substitute “an individual”.
220 Subsection 35AC(2)
Omit “the person”, substitute “the individual”.
221 At the end of subsection 35AC(2)
Add:
; and (c) is not a member or employee of a firm that is disqualified under section 130EA; and
(d) is not a director or employee of a company that is disqualified under section 130EA.
222 After subsection 35AC(2)
Insert:
(2A) The RSE licensee of the registrable superannuation entity must not appoint a firm or company as an auditor of the entity unless the RSE licensee is reasonably satisfied that:
(a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:
(i) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and
(ii) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and
(b) the firm or company has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.
223 Subsection 35AC(3)
Omit “A person who”, substitute “An individual, company or firm that”.
224 Subsection 35AC(3)
Omit “person’s appointment”, substitute “appointment of the individual, company or firm”.
225 Subsection 35AC(6)
Omit “a person”, substitute “an individual”.
226 Subsection 35AC(6)
Omit “the person”, substitute “the individual”.
227 At the end of subsection 35AC(6)
Add:
; or (c) is a member or employee of a firm that is disqualified under section 130EA; or
(d) is a director or employee of a company that is disqualified under section 130EA.
228 At the end of section 35AC
Add:
(7) The RSE licensee of the registrable superannuation entity must end the appointment of a firm or company as an auditor of the entity if the RSE licensee becomes aware that:
(a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:
(i) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or
(ii) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or
(b) the firm or company has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.
(8) If the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001, the RSE licensee for the entity must ensure that the appointed auditor of the entity is the individual, firm or company that is the auditor of the entity for the purposes of that Chapter.
(9) If:
(a) the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001; and
(b) an individual, firm or company ceases to be the auditor of the entity for the purposes of that Chapter;
then, for the purposes of the RSE licensee law, the appointment of the individual, firm or company as the auditor of the entity ends at the time of the cessation.
229 Section 126L (heading)
Omit “or 130D”, substitute “, 130D or 130EA”.
230 Subsections 126L(1) and (3)
After “or 130D”, insert “or tend to make a firm or company liable to disqualification under section 130EA”.
231 Subsection 126L(4)
After “or 130D”, insert “or a proceeding under section 130EA”.
232 Before paragraph 129(1)(a)
Insert:
(aa) the person is an individual; and
233 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.
234 Before paragraph 130(1)(a)
Insert:
(aa) the person is an individual; and
235 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.
236 Section 130A
Before “A person who”, insert “(1)”.
237 At the end of section 130A
Add:
(2) This section applies to a firm as if it were a person.
238 Subsection 130B(1)
Omit “or 130”, substitute “, 129A, 130 or 130AA”.
239 Subsection 130BA(1)
After “entity” (first occurring), insert “is an individual and”.
240 At the end of section 130BA
Add:
(3) If the Regulator receives a notification under subsection (1) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001, the Regulator must:
(a) give a copy of the notification to ASIC; and
(b) do so as soon as practicable after receiving the notification.
(4) For the purposes of this section, audit means:
(a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or
(b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001; or
(c) an audit of a self managed superannuation fund.
241 After section 130BA
Insert:
130BAA Lead auditor—obligation to notify the Regulator of attempts to unduly influence etc. the auditor etc.
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 is aware of circumstances that amount to:
(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b) the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.
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 is aware of circumstances that amount to:
(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b) the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.
(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
(a) the person is aware of circumstances that amount to:
(i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b) the person does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.
Offence—RSE audit company
(5) A company commits an offence if the company contravenes subsection (1).
Penalty: 250 penalty units.
Offence—lead auditor and member of RSE audit firm
(6) A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: Imprisonment for 12 months or 50 penalty units, or both.
Other matters
(7) If the Regulator receives a notification under subsection (1), (2) or (4) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001, the Regulator must:
(a) give a copy of the notification to ASIC; and
(b) do so as soon as practicable after receiving the notification.
(8) For the purposes of this section, audit means:
(a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or
(b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001.
242 Before paragraph 130C(1)(a)
Insert:
(aa) the person is an individual; and
243 At the end of Division 2 of Part 16
Add:
130CA Lead auditors—failure to implement actuarial recommendations
Contravention by RSE audit company
(1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a) the entity is a defined benefit fund; and
(b) the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer‑sponsor that a trustee of the fund, or an employer‑sponsor of the fund, was required to implement and that was contained in:
(i) a report of an actuary obtained under the regulations or the prudential standards; or
(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and
(c) 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
(d) 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 entity is a defined benefit fund; and
(b) the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer‑sponsor that a trustee of the fund, or an employer‑sponsor of the fund, was required to implement and that was contained in:
(i) a report of an actuary obtained under the regulations or the prudential standards; or
(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and
(c) 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
(d) 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 there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer‑sponsor that a trustee of the fund, or an employer‑sponsor of the fund, was required to implement and that was contained in:
(i) a report of an actuary obtained under the regulations or the prudential standards; or
(ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; 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.
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.
244 Section 130D (at the end of the heading)
Add “—auditor or actuary”.
245 Subsection 130D(1)
After “APRA”, insert “or ASIC”.
246 Subsection 130D(2)
After “disqualify a person”, insert “(other than a company)”.
247 Subsection 130D(3)
After “auditor”, insert “, lead auditor”.
248 Subparagraph 130D(4)(a)(i)
Omit “or the prudential standards’, substitute “, the prudential standards or Chapter 2M of the Corporations Act 2001”.
249 After subparagraph 130D(4)(a)(i)
Insert:
(ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001; or
250 After paragraph 130D(4)(aa)
Insert:
(ab) the person has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or
251 Subsection 130E(1)
After “APRA”, insert “or ASIC”.
252 After section 130E
Insert:
130EA Court power of disqualification—audit firm or audit company
(1) On application by ASIC, the Federal Court of Australia may, by order:
(a) disqualify a firm from being or acting as an auditor of a registrable superannuation entity; or
(b) disqualify a company from being or acting as an auditor of a registrable superannuation entity;
for a period that the Court considers appropriate, if the Court is satisfied:
(c) as mentioned in subsection (2); and
(d) that the disqualification is justified.
Note: For offences relating to firms or companies disqualified under this section, see sections 131CA and 131CB.
(2) The Court may disqualify a firm or company, in accordance with subsection (1), if the Court is satisfied that:
(a) the firm or company has failed to put in place appropriate processes and systems to enable it to carry out or perform adequately and properly:
(i) its duties as an RSE audit firm or RSE audit company under this Act, the regulations or Chapter 2M of the Corporations Act 2001; or
(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an RSE audit firm or RSE audit company; or
(iii) any functions that an RSE audit firm or RSE audit company is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001; or
(b) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company meets the relevant eligibility criteria set out in the prudential standards; or
(c) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company is a fit and proper person to be a lead auditor.
(3) In deciding whether it is satisfied as mentioned in subsection (2), 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.
(4) As soon as practicable after the Court:
(a) disqualifies a firm under this section; or
(b) disqualifies a company under this section;
ASIC must cause particulars of the disqualification to be published in the Gazette.
130EB Court power to revoke or vary a disqualification etc.
(1) A firm or company that is disqualified under section 130EA, or ASIC, may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130EA.
(2) At least 21 days before commencing the proceedings, written notice of the application must be lodged:
(a) if the firm or company that is disqualified makes the application—by the person with ASIC; or
(b) if ASIC makes the application—by ASIC with the firm or company that is disqualified.
253 At the end of subsection 131AA(1)
Add:
Note: See also subsection (11).
254 Paragraph 131AA(2)(a)
After “130D”, insert “, 130EA”.
255 After paragraph 131AA(2)(a)
Insert:
(aa) if the person is a firm or company—the lead auditor for an audit of a registrable superannuation entity that is or was conducted by the person:
(i) is disqualified under section 130D; or
(ii) did not meet the relevant eligibility criteria set out in the prudential standards; or
(iii) is not a fit and proper person to be a lead auditor; or
256 Paragraph 131AA(2)(b)
Before “the person”, insert “if the person is an individual—”.
257 After subsection 131AA(6)
Insert:
(6A) If APRA directs a trustee or trustees to end a person’s appointment as an auditor of a registrable superannuation entity, APRA must:
(a) notify ASIC of the direction; and
(b) do so as soon as practicable after giving the direction.
258 At the end of section 131AA
Add:
Firm
(11) This section applies to a firm as if it were a person.
259 Subsection 131A(1)
Omit “RSE auditor”, substitute “individual RSE auditor, a lead auditor”.
260 After subparagraph 131A(1)(a)(i)
Insert:
(ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001; or
261 After paragraph 131A(1)(aa)
Insert:
(ab) has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or
262 Paragraph 131A(1)(b)
Omit “RSE auditor”, substitute “individual RSE auditor, a lead auditor”.
263 Subsections 131A(1A), (2), (3) and (4)
Omit “RSE auditor”, substitute “individual RSE auditor, a lead auditor”.
264 At the end of subsection 131B(3)
Add:
Note 3: See also sections 131CC and 131CD.
265 After section 131B
Insert:
131BA Misleading representations by disqualified firm or company
(1) A person commits an offence if:
(a) the person is a firm; and
(b) the firm is disqualified under section 130EA; and
(c) the firm represents that a member or employee of the firm is eligible to be an RSE auditor.
Penalty: 50 penalty units.
(2) A person commits an offence if:
(a) the person is a company; and
(b) the company is disqualified under section 130EA; and
(c) the company represents that a director or employee of the company is eligible to be an RSE auditor.
Penalty: 250 penalty units.
(3) Subsections (1) and (2) are offences of strict liability.
Note: See also sections 131CC and 131CD.
266 At the end of Division 4 of Part 16
Add:
131CA Disqualified firms and disqualified companies not to be an RSE auditor
(1) A person commits an offence if:
(a) the person is a member of a firm; and
(b) the firm is, or acts as, an RSE auditor; and
(c) the firm is disqualified under section 130EA; and
(d) the person knows that the firm is so disqualified.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a company; and
(c) the company is disqualified under section 130EA; and
(d) the person knows that the company is so disqualified.
Penalty: 600 penalty units.
(3) A person commits an offence if:
(a) the person is a member of a firm; and
(b) the firm is, or acts as, an RSE auditor; and
(c) the firm is disqualified under section 130EA.
Penalty: 60 penalty units.
(4) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a company; and
(c) the company is disqualified under section 130EA.
Penalty: 300 penalty units.
(5) Subsections (3) and (4) are offences of strict liability.
131CB Members or employees of disqualified firms, and directors or employees of disqualified companies, not to be RSE auditors
(1) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a member or employee of a firm; and
(c) the firm is disqualified under section 130EA; and
(d) the person knows that the firm is so disqualified.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a director or employee of a company; and
(c) the company is disqualified under section 130EA; and
(d) the person knows that the company is so disqualified.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a member or employee of a firm; and
(c) the firm is disqualified under section 130EA.
Penalty: 60 penalty units.
(4) A person commits an offence if:
(a) the person is, or acts as, an RSE auditor; and
(b) the person is a director or employee of a company; and
(c) the company is disqualified under section 130EA.
Penalty: 60 penalty units.
(5) Subsections (3) and (4) are offences of strict liability.
267 At the end of Part 16
Add:
Division 5—Special provisions relating to firms and companies
131CC Offences by members of a firm
(1) Section 131BA and subsection 131B(2A) apply to a firm as if it were a person, but with the changes set out in this section.
(2) An offence based on section 131BA or subsection 131B(2A) that would otherwise be committed by the firm is taken to have been committed by each member of the firm.
(3) A member of the firm does not commit an offence because of subsection (2) if the member:
(a) does not know of the circumstances that constitute the contravention of the provision concerned; or
(b) knows of those circumstances 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 subsection (3)—see subsection 13.3(3) of the Criminal Code.
131CD Criminal liability of a firm or company
(1) For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a firm, an act or omission by an individual who is:
(a) a member of the firm; or
(b) an employee or agent of the firm;
acting within the actual or apparent scope of the individual’s employment, or within the individual’s actual or apparent authority, is also to be attributed to the firm.
(2) For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a company, an act or omission by an individual who is:
(a) an officer of the company; or
(b) an employee or agent of the company;
acting within the actual or apparent scope of the individual’s employment, or within the individual’s actual or apparent authority, is also to be attributed to the company.
268 At the end of paragraph 131D(1)(a)
Add:
(v) Chapter 2M of the Corporations Act 2001; or
269 At the end of section 131D
Add:
(6) If APRA gives a direction under paragraph (2)(e), APRA must:
(a) notify ASIC of the direction; and
(b) do so as soon as practicable after giving the direction.
270 Subsection 336F(3)
Omit “or 130” (first occurring), substitute “, 129A, 130 or 130AA”.
271 Subsection 336F(3) (note 1)
Omit “or 130”, substitute “, 129A, 130 or 130AA”.
272 Application—retention of accounting records
(1) Subsection 35A(1A) of the Superannuation Industry (Supervision) Act 1993 (as amended by this Part) applies in relation to accounting records that relate to a year of income beginning on or after 1 July 2023.
(2) Despite the repeal of paragraph 35A(2)(a) of the Superannuation Industry (Supervision) Act 1993 by this Part, that paragraph continues to apply, in relation to accounting records that relate to a year of income beginning before 1 July 2023, as if that repeal had not happened.
Schedule 3—Increased Tribunal powers for small business tax decisions
Taxation Administration Act 1953
1 Section 14ZQ
Insert:
small business taxation assessment decision means a taxation decision that is:
(a) an assessment of tax‑related liabilities (as defined in section 255‑1 in Schedule 1) relating in whole or in part to carrying on a business; and
(b) made in relation to a small business entity (within the meaning of the Income Tax Assessment Act 1997).
2 At the end of section 14ZZB
Add:
(3) However, despite subsection (1), section 41 of the AAT Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision, subject to the modifications set out in section 14ZZH.
3 After section 14ZZG
Insert:
14ZZH Modification of section 41 of the AAT Act
Section 41 of the AAT Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision as if the following subsection were inserted after subsection (3):
“(3A) The Tribunal must not make an order under subsection (2), or an order varying or revoking an order in force under subsection (2), unless:
(a) the proceeding before the Tribunal is in the Small Business Taxation Division of the Tribunal; and
(b) if the party requesting the order is not the Commissioner of Taxation—the party satisfies the Tribunal that, when considered in the context of both the particular circumstances of the decision under review and the overall taxation system, the application for review and the request for making the order are not frivolous, vexatious, misconceived, lacking in substance or otherwise intended to unduly impede, prejudice or restrict the proper administration or operation of a taxation law.
Note 1: The kind of orders that the Tribunal may make under this section as modified by section 14ZZH of the Taxation Administration Act 1953 include the following:
(a) an order directing the Commissioner not to sue in a court to recover a specified amount relating to the reviewable objection decision (see subsection 255‑5(2) in Schedule 1 to the Taxation Administration Act 1953);
(b) an order directing the Commissioner to offer or accept payment of a liability relating to the reviewable objection decision by instalments under a specified arrangement (see section 255‑15 in Schedule 1 to the Taxation Administration Act 1953);
(c) an order directing the Commissioner not to issue one or more written notices to specified third parties who owe or may later owe money to the applicant as a means of recovering a liability relating to the reviewable objection decision (see section 260‑5 in Schedule 1 to the Taxation Administration Act 1953).
Note 2: However, an order that would materially and permanently alter the decision under review would not be an order staying or otherwise affecting the operation or implementation of such a decision for the purpose of securing the effectiveness of the hearing and determination of the application for review. For example:
(a) an order directing the Commissioner to defer the time at which a tax liability becomes due and payable; or
(b) an order directing the Commissioner to remit the imposition of interest charges on unpaid liabilities that are due and payable.”.
4 Section 14ZZM
Before “The”, insert “(1)”.
5 At the end of section 14ZZM
Add:
(2) However, the application of subsection (1) in relation to a small business taxation assessment decision is subject to any order made under section 41 of the AAT Act (as modified by section 14ZZH of this Act) in relation to the decision.
6 Application
The amendments made by this Schedule apply in relation to applications for review made on or after the commencement of this Schedule.