Commonwealth Numbered Acts Commonwealth Numbered ActsSuperannuation Industry (Supervision) Act 1993
1 Paragraph 6(1)(a)
Omit "the Commissioner of Taxation by paragraph (e) or (g)", substitute "ASIC by paragraph (da) or the Commissioner of Taxation by paragraph (e), (ea) or (g)".
2 After paragraph 6(1)(d)
Insert:
(da) ASIC also has the general administration of Part 16 (other than Division 2 and section 128P) to the extent that it relates to auditors of self managed superannuation funds; and
3 Subparagraph 6(1)(e)(v)
Repeal the subparagraph, substitute:
(v) Division 2 of Part 16 and section 128P;
(vi) Part 17 (other than section 140);
(vii) Parts 21 and 24;
(viii) Divisions 2, 3, 4 and 5 of Part 25A; and
4 After paragraph 6(1)(e)
Insert:
(ea) the Commissioner of Taxation also has the general administration of Part 16 (other than section 128N) to the extent that:
(i) it relates to self managed superannuation funds; and
(ii) that administration is not conferred on ASIC by paragraph (da); and
5 Subsection 10(1) (definition of approved auditor )
Repeal the definition, substitute:
"approved auditor" :
(a) in relation to a superannuation entity that is a self managed superannuation fund--means an approved SMSF auditor; or
(b) in relation to any other superannuation entity--means a person included in a class of persons specified in regulations made for the purposes of this definition, but does not include a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D; or
(c) in any other case--means any person covered by paragraph (a) or (b).
6 Subsection 10(1)
Insert:
"approved SMSF auditor" means a person who is registered under section 128B, but does not include:
(a) a person for whom an order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, is in force under section 130F; or
(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.
7 Subsection 10(1)
Insert:
"SMSF auditor number" , of an approved SMSF auditor, means the number stated under paragraph 128B(6)(b) in a certificate under subsection 128B(6) relating to the auditor's registration under section 128B.
8 Subsection 10(1)
Insert:
"suspended SMSF auditor" means a person for whom an order suspending a person's registration as an approved SMSF auditor is in force under section 130F.
9 After Division 1 of Part 16
Insert:
Division 1A -- Approved SMSF auditors
Subdivision A -- Registration of approved SMSF auditors
128A Application for registration as an approved SMSF auditor
(1) A natural person who is an Australian resident may apply to the Regulator for registration as an approved SMSF auditor.
(2) The application must be in the approved form.
Note: The approved form may require electronic lodgement of the application: see sections 11A and 11B.
(3) The Regulator may request the applicant to give to the Regulator further information relating to the application within a specified time.
(4) The applicant is taken to have withdrawn the application if he or she does not give the further information within that time.
128B Registration as an approved SMSF auditor
Obligation to register
(1) The Regulator must grant an application under section 128A and register the applicant as an approved SMSF auditor if:
(a) the applicant:
(i) has the qualifications prescribed by the regulations; and
(ii) has the practical experience prescribed by the regulations; and
(iii) has passed a competency examination in accordance with section 128C; and
(b) the Regulator is satisfied that the applicant:
(i) is capable of performing the duties of an approved SMSF auditor; and
(ii) is unlikely to contravene the obligations of an approved SMSF auditor under Subdivision B; and
(iii) is otherwise a fit and proper person to be an approved SMSF auditor.
Discretion to register
(2) If the applicant does not meet one or more of the requirements of paragraph (1)(a), the Regulator may grant the application if the applicant meets the requirements of paragraph (1)(b).
Refusal of applications
(3) If the applicant does not meet the requirements of paragraph (1)(b), the Regulator must refuse the application.
(4) Despite subsections (1) and (2), the Regulator must refuse the application if the applicant is:
(a) a person for whom a disqualification order or a suspension order is in force under section 130F; or
(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.
(5) If the Regulator refuses the application, the Regulator must, not later than 14 days after the decision, give to the applicant a notice in writing setting out the decision and the reasons for it.
Certificate of registration
(6) If the Regulator grants the application, the Regulator must, not later than 14 days after granting the application, issue to the applicant a certificate:
(a) stating that the applicant has been registered as an approved SMSF auditor; and
(b) stating the applicant's SMSF auditor number; and
(c) specifying the day the application was granted.
(7) A failure to comply with subsection (6) does not affect the validity of the decision.
Duration of registration
(8) A registration under this section takes effect at the beginning of the day specified in the certificate as the day the application is granted and remains in force (except while the registration is suspended) until:
(a) the Regulator cancels the registration under section 128E; or
(b) an order disqualifying the person who is registered from being an approved SMSF auditor comes into force under section 130F; or
(c) an order disqualifying the person who is registered from being or acting as an auditor of all superannuation entities comes into force under section 130D; or
(d) the person who is registered dies.
The applicant is taken to pass a competency examination in accordance with this section if:
(a) in the 12 month period prior to his or her application under section 128A, the applicant passes an examination conducted by or on behalf of the Regulator for the purposes of this section; and
(b) the applicant has not, during that period, undertaken and failed to pass such an examination on 2 previous occasions.
128D Conditions on registration
(1) The Regulator may, at any time, by giving written notice to a person:
(a) impose conditions, or additional conditions, on the person's registration as an approved SMSF auditor; or
(b) vary or revoke conditions imposed on the registration.
(2) The Regulator may do so:
(a) on its own initiative; or
(b) on application by the person if:
(i) the person is an approved SMSF auditor; and
(ii) the application is accompanied by any documents prescribed by the regulations.
(3) Without limiting the conditions that the Regulator may impose under this section, those conditions, or those conditions as varied, may require one or more of the following:
(a) that the person complete a course of education or training specified in the notice;
(b) that the person undertake and pass a competency examination within a period specified by the Regulator.
(1) The Regulator may cancel a person's registration as an approved SMSF auditor if the person requests the Regulator to do so. The request must be in writing.
(2) The Regulator may cancel a person's registration as an approved SMSF auditor if the Regulator is satisfied that the person:
(a) has failed to comply with a condition imposed under section 128D on the person's registration; or
(b) has not performed any significant audit work during a continuous period of 5 years, and, as a result, has ceased to have the practical experience necessary for carrying out audits of self managed superannuation funds under this Act; or
(c) has failed to comply with the person's obligation to give the Regulator a statement under section 128G; or
(d) has ceased to be an Australian resident.
(3) The Regulator must, not later than 14 days after deciding to cancel the registration, give the person a written notice setting out the decision and the reasons for it.
(4) The decision takes effect at the end of the day the notice is given to the person.
(5) A failure to comply with subsection (3) does not affect the validity of the decision.
Subdivision B -- Obligations of approved SMSF auditors
128F Professional obligations of approved SMSF auditors
An approved SMSF auditor must:
(a) complete the continuing professional development requirements prescribed by the regulations; and
(b) hold a current policy of professional indemnity insurance, of a level prescribed by the regulations, for claims that may be made against the auditor in connection with audits of self managed superannuation funds; and
(c) comply with:
(i) any competency standards that the Regulator determines under section 128Q; and
(ii) any auditing standards, made by the Auditing and Assurance Standards Board under section 336 of the Corporations Act 2001 , that are applicable to the duties of an approved SMSF auditor under this Act; and
(iii) any auditing and assurance standards, formulated by the Auditing and Assurance Standards Board under section 227B of the Australian Securities and Investments Commission Act 2001 , that are applicable to those duties; and
(d) comply with the auditor independence requirements prescribed by the regulations.
(1) An approved SMSF auditor or suspended SMSF auditor must, within 30 days after the end of:
(a) the 12 month period beginning on the day the auditor's registration as an approved SMSF auditor took effect; and
(b) each subsequent 12 month period;
give to the Regulator a statement relating to that period.
(2) The statement must be in the approved form.
(3) The Regulator may, at any time before the statement is due, extend (or further extend) the period for giving the statement.
Note: The approved form may require electronic lodgement of the statement: see sections 11A and 11B.
128H Notification of certain matters
If:
(a) an approved SMSF auditor ceases:
(i) to practise as an auditor of self managed superannuation funds; or
(ii) to be an Australian resident; or
(b) a suspended SMSF auditor ceases to be an Australian resident; or
(c) a change occurs in any matter particulars of which are required by paragraph 128J(2)(a), (c) or (d) to be entered in the Register of Approved SMSF Auditors in relation to an approved SMSF auditor or suspended SMSF auditor; or
(d) a change occurs in any contact details that were included:
(i) in the application of an approved SMSF auditor or suspended SMSF auditor, under section 128A, for registration as an approved SMSF auditor; or
(ii) in particulars previously given under this paragraph in relation to an approved SMSF auditor or suspended SMSF auditor;
the approved SMSF auditor or suspended SMSF auditor must, not later than 21 days after the occurrence of the event concerned, give to the Regulator, in the approved form, particulars of that event.
Note: The approved form may require electronic lodgement of the particulars: see sections 11A and 11B.
128J Register of Approved SMSF Auditors
(1) The Regulator must cause a Register of Approved SMSF Auditors to be kept for the purposes of this Act.
(2) The Regulator must cause the entry in the Register of the following particulars relating to each person who is an approved SMSF auditor or suspended SMSF auditor:
(a) the person's name;
(b) the day the person's registration took effect;
(c) the address of the principal place where the person practises as an auditor of self managed superannuation funds;
(d) if the person practises as an auditor or a member of a firm, or under a name or style other than the person's own name--the name of the firm, or the name or style under which he or she so practises;
(e) particulars of any suspension of the person's registration.
The Regulator may cause the entry in the Register of such other particulars relating to the person as the Regulator considers appropriate.
(3) If the person ceases to be an approved SMSF auditor (for a reason other than the person becoming a suspended SMSF auditor), the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.
(4) A person may inspect and make copies of, or take extracts from, the Register.
128K Register of Disqualified SMSF Auditors
(1) The Regulator must cause a Register of Disqualified SMSF Auditors to be kept for the purposes of this Act.
(2) The Regulator must cause the entry in the Register of the name, and the contact details last known to the Regulator, of each person for whom an order disqualifying the person from being an approved SMSF auditor is in force under section 130F.
(3) If the order is revoked, the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.
(4) A person may inspect and make copies of, or take extracts from, the Register.
128L Fees imposed under the Superannuation Auditor Registration Imposition Act 2012
(1) A fee imposed under the Superannuation Auditor Registration Imposition Act 2012 is payable for the matters mentioned in an item in column 1 of the table. The fee is payable by the person referred to in the corresponding item in column 2 of the table.
|
Fees imposed under the Superannuation Auditor Registration Imposition Act 2012 |
||
|
Item |
Column 1 A fee payable for ... |
Column 2 Is payable by ... |
|
1 |
Applying for registration as an approved SMSF auditor |
The applicant |
|
2 |
Undertaking a competency examination in accordance with section 128C |
The person undertaking the examination |
|
3 |
Giving to the Regulator a statement under section 128G |
The person giving the statement |
|
4 |
Giving to the Regulator a statement under section 128G within 1 month after it fell due (in addition to the fee payable because of item 3) |
The person giving the statement |
|
5 |
Giving to the Regulator a statement under section 128G more than 1 month after it fell due (in addition to the fee payable because of item 3) |
The person giving the statement |
|
6 |
Giving to the Regulator particulars under section 128H within 1 month after they fell due |
The person giving the particulars |
|
7 |
Giving to the Regulator particulars under section 128H more than 1 month after they fell due |
The person giving the particulars |
|
8 |
Inspecting or searching a register that the Regulator keeps under this Division |
The person who makes a request to inspect or search the register |
(2) The fee is payable to the Regulator on behalf of the Commonwealth.
(3) The fee is due and payable on the day prescribed by the regulations for the purposes of this subsection.
(4) The Regulator may, on behalf of the Commonwealth, waive the payment of the whole or a part of the fee, on the Regulator's own initiative or on written application by a person.
(5) If a fee is payable under this section for a matter (other than a matter referred to in item 8 of the table in subsection (1)), the matter is taken, for the purposes of this Act (other than section 128J), not to have occurred until the fee is paid.
(6) The Regulator may, on behalf of the Commonwealth, recover a debt due under this section.
(7) Nothing in a law passed before the commencement of this section exempts a person from liability to pay a fee under this section.
(8) A law, or a provision of a law, passed after the commencement of this section that purports to exempt a person from liability:
(a) to pay taxes under laws of the Commonwealth; or
(b) to pay certain taxes under those laws that include fees payable under this section;
is not to be construed as exempting the person from liability to pay fees payable under this section, unless the law or provision expressly exempts a person from liability to pay such fees.
128M Fees for inspection or search
(1) If a fee is payable under section 128L for a matter referred to in item 8 of the table in subsection 128L(1) that involves the Regulator doing an act, the Regulator may refuse to do the act until the fee is paid.
(2) To avoid doubt, nothing in this Division, and nothing done under this Division:
(a) imposes on the Regulator a duty to allow the inspection or search of a register, or to make available information; or
(b) confers a right to inspect or search a register or to have information made available;
except so far as such a duty or right would, but for the effect of this section, exist under a provision of this Act (other than a provision of this Division) or under some other law.
Subdivision E -- Miscellaneous
128N ASIC may disclose information to the Commissioner of Taxation
ASIC may disclose information, given to it in or in connection with the performance of its functions or the exercise of its powers under this Part or Part 25, to the Commissioner of Taxation for the purpose of administering the provisions of this Act.
Note: A disclosure of information permitted by this section is an authorised disclosure for the purposes of subsection 127(2) of the Australian Securities and Investments Commission Act 2001 .
128P Commissioner of Taxation may refer matters to ASIC
(1) If the Commissioner of Taxation is of the opinion that:
(a) an approved SMSF auditor is not a fit and proper person to be an approved SMSF auditor; or
(b) in relation to the conduct of an audit of a self managed superannuation fund--a person has contravened this Act or the regulations, or a person who conducted, or is conducting, the audit has failed to carry out or perform adequately and properly:
(i) the duties of an auditor under this Act or the regulations; or
(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or
(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 ;
the Commissioner of Taxation may refer the details of the matter to ASIC.
(2) The Commissioner of Taxation may exercise the power under subsection (1) in relation to an approved SMSF auditor whether or not an order disqualifying or suspending the approved SMSF auditor has been made under section 130F.
(3) If, under subsection (1), the Commissioner of Taxation refers details of a matter to ASIC, the Commissioner of Taxation must, as soon as practicable but, in any event, not later than 14 days after the referral, by notice in writing given to the auditor or person concerned, inform the auditor or person:
(a) of the fact that a matter has been referred under subsection (1); and
(b) of the nature of the matter so referred.
(1) The Regulator may, by legislative instrument, determine competency standards to be complied with by all approved SMSF auditors.
(2) A competency standard may impose different requirements to be complied with in different situations or in respect of different activities.
(3) Without limiting the matters in relation to which the Regulator may determine a competency standard, a competency standard may provide for matters relating to any of the following:
(a) the conduct of audits;
(b) the professional obligations of approved SMSF auditors;
(c) knowledge of laws applying to approved SMSF auditors;
(d) compliance with laws applying to approved SMSF auditors.
(4) A competency standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in an instrument or writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(5) Subsection (4) has effect despite anything in subsection 14(2) of the Legislative Instruments Act 2003 .
10 After section 130E
Insert:
130F Approved SMSF auditors--disqualification and suspension orders
Application of section
(1) This section applies to the extent that the Regulator is ASIC.
Disqualification orders and suspension orders
(2) The Regulator may make a written order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, if:
(a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i) the duties of an auditor under this Act or the regulations; or
(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or
(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 ; or
(b) the person has failed to comply with a condition, or additional condition, imposed under section 128D on the person's registration as an approved SMSF auditor; or
(c) the person has made a false declaration in:
(i) an application for registration as an approved SMSF auditor; or
(ii) a statement given to the Regulator under section 128G; or
(d) the person is otherwise not a fit and proper person to be an approved SMSF auditor for the purposes of this Act.
Note: For offences relating to persons disqualified or suspended under this section, see section 131C.
(3) The Regulator must give a copy of the order to the person.
Date of effect
(4) The order takes effect on the day specified in the order. The specified day must be within the 28 day period beginning on the day on which the order was made.
Gazettal
(5) If the Regulator's decision is to make an order under this section disqualifying a person from being an approved SMSF auditor, the Regulator must cause a copy of the order to be published in the Gazette as soon as practicable after it is made.
(6) If the Regulator's decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must cause a notice of the variation or revocation to be published in the Gazette as soon as practicable after the decision to vary or revoke the order is made.
(7) If:
(a) the Regulator's decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and
(b) the decision as so confirmed or varied is varied or set aside by the Administrative Appeals Tribunal;
the Regulator must cause a notice of the Tribunal's decision to be published in the Gazette as soon as practicable after it is made.
Revocation
(8) The Regulator may revoke an order under this section. The Regulator's power to revoke may be exercised:
(a) on the Regulator's own initiative; or
(b) on written application made by the person disqualified or suspended.
Revocation--decision on application
(9) If an application is made for the revocation of the order, the Regulator must decide to:
(a) revoke the order; or
(b) refuse to revoke the order.
Revocation--grounds
(10) The Regulator must not revoke the order unless the Regulator is satisfied that the person concerned:
(a) is likely to carry out and perform adequately and properly the duties of an approved SMSF auditor under this Act or the regulations; and
(b) is otherwise a fit and proper person to be an approved SMSF auditor for the purposes of this Act.
Revocation--date of effect
(11) A revocation of the order takes effect on the day the revocation is made.
Revocation--reasons for refusing to revoke
(12) If the Regulator decides to refuse an application for revocation of the order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.
Gazettal
(13) If the order that the Regulator revokes under subsection (8) is an order disqualifying a person from being an approved SMSF auditor, the Regulator must cause particulars of the revocation to be published in the Gazette as soon as practicable after it occurs.
Superannuation Industry (Supervision) Act 1993
11 After subsection 6(2)
Insert:
(2AA) Despite paragraph (2)(b):
(a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and
(b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.
12 After subsection 6(2A)
Insert:
(2AB) Despite subsection (2A), powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:
(a) persons who are relevant persons in relation to superannuation entities; and
(b) the affairs of superannuation entities.
13 Subsection 10(1)
Insert:
"Australian resident" means a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 .
14 Subsection 10(1) (definition of relevant person )
Repeal the definition, substitute:
"relevant person" means:
(a) in relation to a fund or trust:
(i) if the trustee or an investment manager of the fund or trust is or includes an individual--that individual; or
(ii) if the trustee or an investment manager of the fund or trust is or includes a body corporate--a responsible officer of that body corporate; or
(iii) an auditor of the fund or trust; or
(iv) an actuary of the fund or trust; or
(v) a person who is a custodian in relation to the fund or trust; or
(b) in relation to an approved SMSF auditor:
(i) the approved SMSF auditor; or
(ii) a person who is a relevant person under paragraph (a) in relation to a self managed superannuation fund of which the approved SMSF auditor is or was an auditor; or
(c) in relation to an audit of a self managed superannuation fund:
(i) the person who is conducting, or conducted, the audit; or
(ii) a person who is a relevant person under paragraph (a) in relation to the self managed superannuation fund.
15 Subsection 10(1) (after paragraph (rb) of the definition of reviewable decision )
Insert:
(rc) a decision of the Regulator under section 128B refusing an application made under section 128A; or
(rd) a decision of the Regulator under section 128D imposing or varying conditions, or additional conditions, on a person's registration as an approved SMSF auditor; or
(re) a decision of the Regulator refusing an application to vary or revoke conditions, or additional conditions, imposed under section 128D on a person's registration as an approved SMSF auditor; or
(rf) a decision of the Regulator under subsection 128E(2) cancelling a person's registration as an approved SMSF auditor; or
(rg) a decision of the Regulator refusing an application to waive the payment of the whole or a part of a fee under subsection 128L(4); or
(rh) a decision of the Regulator to make an order under subsection 130F(2); or
(ri) a decision of the Regulator refusing an application to revoke an order under subsection 130F(8); or
16 At the end of subsection 35C(1)
Add:
Note: If the superannuation entity is a self managed superannuation fund, the person appointed must be an approved SMSF auditor.
17 Subsection 35C(1A)
After "a superannuation entity", insert "that is not a self managed superannuation fund".
18 After paragraph 35C(5)(b)
Insert:
(ba) must, if it is approved for a superannuation entity that is a self managed superannuation fund, include a statement by the auditor as to the extent of the auditor's compliance with the auditor independence requirements referred to in paragraph 128F(d); and
19 Subsection 35C(7)
Repeal the subsection, substitute:
(7) The auditor commits an offence if:
(a) the auditor contravenes subsection (6); and
(b) the entity is not a self managed superannuation fund; and
(c) the auditor is not an approved SMSF auditor.
Penalty: Imprisonment for 6 months.
20 Section 131 (heading)
Repeal the heading, substitute:
131 Actuaries--disqualification orders
21 Subsection 131(1)
Omit "approved auditor or" (first occurring).
22 Subparagraphs 131(1)(a)(i) and (ii)
Omit "an auditor or an actuary (as the case requires)", substitute "an actuary".
23 Subparagraph 131(1)(a)(iii)
Omit "an auditor or actuary (as the case requires)", substitute "an actuary".
24 Paragraph 131(1)(b)
Omit "approved auditor or".
25 Subsection 131(4A)
Omit "APRA's", substitute "the Regulator's".
26 Subsection 131(4A)
Omit "APRA" (wherever occurring), substitute "the Regulator".
27 Paragraph 131(4B)(a)
Omit "APRA's", substitute "the Regulator's".
28 Subsection 131(4B)
Omit "APRA" (wherever occurring), substitute "the Regulator".
29 Paragraph 131(7)(a)
Omit "an auditor or actuary (as the case requires)", substitute "an actuary".
30 Paragraph 131(7)(b)
Omit "an approved auditor or actuary (as the case requires)", substitute "an actuary".
31 Subsection 131AA(1)
After "superannuation entity" (first occurring), insert "that is not a self managed superannuation fund".
32 Subsection 131A(1)
After "an approved auditor" (first occurring), insert "(other than an approved SMSF auditor)".
33 Paragraph 131A(1)(b)
Omit "or an actuary", substitute "of a superannuation entity that is not a self managed superannuation fund, or to be an actuary,".
34 Subsection 131B(1)
Omit "is guilty of", substitute "commits".
35 Subsection 131B(2)
Repeal the subsection, substitute:
(2) A person commits an offence if:
(a) the person holds themself out as an approved SMSF auditor; and
(b) the person is not an approved SMSF auditor.
Penalty: 50 penalty units.
(2A) A person commits an offence if:
(a) the person holds themself out as an approved auditor of a kind other than an approved SMSF auditor; and
(b) the person is not such an approved auditor.
Penalty: 50 penalty units.
36 Subsection 131B(3)
Omit "Subsections (1) and (2)", substitute "Subsections (1), (2) and (2A)".
37 Subparagraph 131C(1)(b)(ii)
Repeal the subparagraph, substitute:
(ii) the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or
(iii) the person is disqualified under section 131 from being an actuary; and
38 At the end of paragraph 131C(1)(c)
Add "or suspended".
39 Subparagraph 131C(2)(b)(ii)
Repeal the subparagraph, substitute:
(ii) the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or
(iii) the person is disqualified under section 131 from being an actuary; and
40 At the end of paragraph 131C(2)(c)
Add "or suspended".
41 Part 25 (heading)
Repeal the heading, substitute:
Part 25 -- Monitoring and investigation
42 Paragraph 253(a)
After "superannuation entities", insert ", approved SMSF auditors and audits of self managed superannuation funds".
43 Paragraph 253(c)
After "a superannuation entity", insert "or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund,".
44 At the end of section 253
Add:
Note 1: Sections 254 and 264, and Division 3, apply only to monitoring or investigating superannuation entities. They do not apply to monitoring or investigating approved SMSF auditors or to the conduct of audits of self managed superannuation funds.
Note 2: ASIC's powers and duties as the Regulator under sections 255 and 256 apply only to monitoring superannuation entities: see subsection 6(2AA). They do not apply to monitoring approved SMSF auditors or to the conduct of audits of self managed superannuation funds.
Note 3: The Commissioner of Taxation's powers and duties as the Regulator under Divisions 4 to 8 (other than section 285) apply only to investigating superannuation entities: see subsection 6(2AB).
45 Section 253A
Omit "a fund or trust", substitute "a fund, trust or approved SMSF auditor, or in relation to an audit of a self managed superannuation fund,".
46 Section 253A
Omit "the fund or trust", substitute "the fund, trust, auditor or audit".
47 Division 2 of Part 25 (heading)
Repeal the heading, substitute:
48 Subsection 255(1)
Repeal the subsection, substitute:
(1) For the purposes of this Act, the Regulator or an authorised person may, by written notice to:
(a) a relevant person in relation to a superannuation entity or approved SMSF auditor; or
(b) a relevant person in relation to an audit of a self managed superannuation fund;
require the relevant person to produce to the Regulator or an authorised person, at such reasonable time and reasonable place as are specified in a notice, any books relating to the affairs of the entity, auditor or audit.
49 Subsection 255(4)
Repeal the subsection, substitute:
(4) The powers of the Regulator or an authorised person under this section may be exercised in relation to a superannuation entity or an approved SMSF auditor, or in relation to an audit of a self managed superannuation fund, even though an investigation is being conducted, under section 263, of:
(a) the whole or a part of the affairs of the entity or auditor; or
(b) the whole or a part of the conduct of the audit.
50 Subsection 256(1)
After "a superannuation entity", insert "or approved SMSF auditor, or relating to the conduct of an audit of a self managed superannuation fund,".
51 Paragraph 256(1)(a)
After "those affairs" (first occurring), insert "or the conduct of that audit,".
52 Paragraph 256(1)(a)
After "those affairs" (second occurring), insert "or the conduct of that audit".
53 Section 263 (heading)
Repeal the heading, substitute:
54 After subsection 263(1)
Insert:
(1A) If it appears to the Regulator that a contravention of this Act or the regulations may have occurred or be occurring in relation to an approved SMSF auditor, the Regulator may, by written notice to the auditor, tell the auditor that the Regulator proposes to conduct an investigation of the whole or a part of the affairs of the auditor.
(1B) If it appears to the Regulator that a contravention of this Act or the regulations may have occurred or be occurring in relation to the conduct of an audit of a self managed superannuation fund, the Regulator may, by written notice to a person who conducted, or who is conducting, the audit, tell the person that the Regulator proposes to conduct an investigation of the whole or a part of the conduct of the audit.
55 Subsection 263(2)
Repeal the subsection, substitute:
(2) The following provisions of this Division apply:
(a) in relation to a superannuation entity if a notice is given under subsection (1) to a trustee of the entity;
(b) in relation to an approved SMSF auditor if a notice is given under subsection (1A) to the auditor;
(c) in relation to a person who conducted, or who is conducting, an audit of a self managed superannuation fund, if a notice is given under subsection (1B) to the person.
56 Subsection 265(1)
Repeal the subsection, substitute:
(1) The Regulator may, in writing, appoint a member of the staff of the Regulator, or a member of the staff of the other Regulator, to be an inspector for the purposes of the conduct of investigations under this Division in relation to:
(a) the affairs of superannuation entities and approved SMSF auditors; and
(b) the conduct of audits of self managed superannuation funds.
57 Section 268
After "a superannuation entity", insert "or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund".
58 Paragraph 268(a)
After "the entity", insert "or auditor, or to the audit,".
59 Paragraph 268(a)
After "those affairs", insert "or that audit".
60 Section 269
After "a superannuation entity", insert "or approved SMSF auditor, or the conduct of an audit of a self managed superannuation fund".
61 Paragraph 269(a)
After "the entity", insert ", auditor or audit".
62 Paragraph 269(b)
After "those affairs", insert "or that audit".
63 Paragraph 270(a)
Repeal the paragraph, substitute:
(a) who is, or has been, a relevant person in relation to:
(i) a superannuation entity or approved SMSF auditor whose affairs or a part of whose affairs the Regulator is investigating; or
(ii) an audit of a self managed superannuation fund the conduct of which, or a part of the conduct of which, the Regulator is investigating; or
64 Paragraph 270(b)
After "that entity", insert ", auditor or audit".
65 Paragraph 284(3)(a)
Repeal the paragraph, substitute:
(a) must give a copy of the report to:
(i) each trustee of the superannuation entity to which the investigation related; or
(ii) the approved SMSF auditor to whom the investigation related; or
(iii) the person who conducted, or is conducting, the audit to which the investigation related; and
66 Subsection 284(5)
Repeal the subsection, substitute:
(5) ASIC and the Commissioner of Taxation must give each other a copy of any report they prepare under this section in relation to:
(a) a self managed superannuation fund; or
(b) an approved SMSF auditor; or
(c) a person who conducted, or is conducting, an audit of a self managed superannuation fund.
67 Subsection 294(1)
Repeal the subsection, substitute:
(1) A copy of, or an extract from, a book relating to:
(a) affairs of a superannuation entity or approved SMSF auditor; or
(b) conduct of an audit of a self managed superannuation fund;
is admissible in evidence in a proceeding as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 273.
68 Subsection 344(12)
After "(rb),", insert "(rc), (rd), (re), (rf), (rg), (rh), (ri),".
Taxation Administration Act 1953
69 Subsection 355-65(3) in Schedule 1 (after table item 6)
Insert:
|
6A |
the Australian Securities and Investments Commission |
is for the purpose of administering Part 16 of the Superannuation Industry (Supervision) Act 1993 . |
Part 3 -- Application and transitional provisions
70 Approved auditors of self managed superannuation funds
(1) If, immediately before 31 January 2013, a person was an approved auditor of a self managed superannuation fund, the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule applies in relation to the person as if the person became an approved SMSF auditor on 31 January 2013.
(2) Subitem (1) does not prevent the person applying, under section 128A of that Act as so amended, for registration as an approved SMSF auditor.
(3) This item continues to apply to the person until:
(a) registration of the person as an approved SMSF auditor under section 128B of that Act as so amended takes effect; or
(b) the end of 30 June 2013;
whichever happens earlier.
(4) While this item applies to the person, section 128J of that Act as so amended does not require particulars relating to the person to be entered in the Register of Approved SMSF Auditors.
71 Applications before 1 July 2013 for registration as an approved SMSF auditor
(1) A person who, before 1 July 2013, applies for registration as an approved SMSF auditor is taken, in the circumstances prescribed by a regulation, to have met the one or more requirements of paragraph 128B(1)(a) of the Superannuation Industry (Supervision) Act 1993 , as amended by this Schedule, prescribed by that regulation.
(2) This item does not affect the operation of subsection 128B(2) of that Act as so amended.
72 Approved auditors of superannuation entities that are not self managed superannuation funds
(1) The amendment made by item 5 of this Schedule does not affect the continuity of any regulations made for the purposes of the definition of approved auditor in subsection 10(1) of the Superannuation Industry (Supervision) Act 1993 that are in force immediately before this item commences.
(2) However, this item does not apply to the extent that those regulations apply to an auditor of a self managed superannuation fund.
73 Auditors previously disqualified under section 131
(1) If:
(a) immediately before 31 January 2013, a person was a person in respect of whom an order (a section 131 order ) is in force under section 131 of the Superannuation Industry (Supervision) Act 1993 ; and
(b) immediately before the order came into force, the person was an approved auditor within the meaning of that Act;
on and after that day, the person is taken, for the purposes of that Act as amended by this Schedule, to be a person for whom an order (a section 130F order ) disqualifying a person from being an approved SMSF auditor is in force under section 130F.
(2) If:
(a) before 31 January 2013, an application was made, as mentioned in subsection 131(6) of the Superannuation Industry (Supervision) Act 1993 , for the revocation of the section 131 order; and
(b) a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, as mentioned in subsection 130F(9) of that Act as so amended, for the revocation of the section 130F order.
(3) If:
(a) before 31 January 2013, a request was made, under subsection 344(1) of the Superannuation Industry (Supervision) Act 1993 , for reconsideration of a decision refusing to revoke the section 131 order; and
(b) a decision on the request was not made before that day;
on and after that day, a request is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(1) of that Act as so amended, for reconsideration of a decision refusing to revoke the section 130F order.
(4) If:
(a) before 31 January 2013, an application was made, under subsection 344(8) of the Superannuation Industry (Supervision) Act 1993 , for review of a decision under subsection 344(4) of that Act relating to the section 131 order; and
(b) a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(8) of that Act as so amended, for review of a corresponding decision relating to the section 130F order.
74 Enforcement of undertakings
If:
(a) before 31 January 2013, the Commissioner of Taxation accepted an undertaking, under subsection 262A(1) of the Superannuation Industry (Supervision) Act 1993 , given by an approved auditor; and
(b) the undertaking was still in force immediately before that day;
on and after that day, the undertaking is taken, for the purposes of that Act as amended by this Schedule, to have been accepted by ASIC under that subsection of that Act as so amended.
75 Inspectors
If a person was an inspector immediately before 31 January 2013, the person's appointment as an inspector continues after that day as if it were an appointment for the purposes of the conduct of investigations, under Division 4 of Part 25 of the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule, in relation to:
(a) the affairs of superannuation entities and approved SMSF auditors; and
(b) the conduct of audits of self managed superannuation funds.
76 Regulations
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Part to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Part.