CHAPTER 2M
-
FINANCIAL REPORTS AND AUDIT
PART 2M.2
-
FINANCIAL RECORDS
SECTION 286
OBLIGATION TO KEEP FINANCIAL RECORDS
286(1)
A company, registered scheme, registrable superannuation entity or disclosing entity must keep written financial records that:
(a)
correctly record and explain its transactions and financial position and performance; and
(b)
would enable true and fair financial statements to be prepared and audited.
The obligation to keep financial records of transactions extends to transactions undertaken as trustee.
Note 1: Section
9
defines
financial records
.
Note 2: Section
1232A
extends this section to keeping financial records for sub-funds of retail and wholesale CCIVs, and applies this Part accordingly.
History
S 286(1) amended by No 29 of 2023, s 3, Sch 6[27] (effective 1 July 2023).
S 286(1) amended by No 8 of 2022, s 3, Sch 2[110] (effective 1 July 2022).
Period for which records must be retained
286(2)
The financial records must be retained for 7 years after the transactions covered by the records are completed.
Fault-based offence
286(3)
A person commits an offence if the person contravenes subsection
(1)
or
(2)
.
History
S 286(3) substituted by No 17 of 2019, s 3, Sch 1
[
23] (effective 13 March 2019).
Strict liability offence
286(4)
A person commits an offence of strict liability if the person contravenes subsection
(1)
or
(2)
.
History
S 286(4) inserted by No 17 of 2019, s 3, Sch 1
[
23] (effective 13 March 2019).
SECTION 287
LANGUAGE REQUIREMENTS
287(1)
[
Language]
The financial records may be kept in any language.
287(2)
[
English translation]
An English translation of financial records not kept in English must be made available within a reasonable time to a person who:
(a)
is entitled to inspect the records; and
(b)
asks for the English translation.
287(3)
[
Strict liability offence]
An offence based on subsection (2) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 287(3) inserted by No 117 of 2001, s 3, Sch 1
[
92] (effective 15 December 2001).
SECTION 288
PHYSICAL FORMAT
288(1)
[
Conversion of electronic records]
If financial records are kept in electronic form, they must be convertible into hard copy. Hard copy must be made available within a reasonable time to a person who is entitled to inspect the records.
288(2)
[
Strict liability offence]
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 288(2) inserted by No 117 of 2001, s 3, Sch 1
[
93] (effective 15 December 2001).
SECTION 289
PLACE WHERE RECORDS ARE KEPT
289(1)
A company, registered scheme, registrable superannuation entity or disclosing entity may decide where to keep the financial records.
History
S 289(1) amended by No 29 of 2023, s 3, Sch 6[28] (effective 1 July 2023).
Records kept outside this jurisdiction
289(2)
If financial records about particular matters are kept outside this jurisdiction, sufficient written information about those matters must be kept in this jurisdiction to enable true and fair financial statements to be prepared. The company, registered scheme, registrable superannuation entity or disclosing entity must give ASIC written notice in the prescribed form of the place where the information is kept.
[
CCH Note:
S 289(2) will be amended by No 69 of 2020, s 3, Sch 1[607] and
[
608], by substituting
"
the Registrar notice
"
for
"
ASIC written notice in the prescribed form
"
and inserting
"
The notice must meet any requirements of the data standards.
"
at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 289(2) amended by No 29 of 2023, s 3, Sch 6[29] (effective 1 July 2023).
289(2A)
An offence based on subsection
(2)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 289(2A) inserted by No 117 of 2001, s 3, Sch 1
[
94].
289(3)
ASIC may direct a company, registered scheme, registrable superannuation entity or disclosing entity to produce specified financial records that are kept outside this jurisdiction.
History
S 289(3) amended by No 29 of 2023, s 3, Sch 6[30] (effective 1 July 2023).
289(4)
The direction must:
(a)
be in writing; and
(b)
specify a place in this jurisdiction where the records are to be produced (the place must be reasonable in the circumstances); and
(c)
specify a day (at least 14 days after the direction is given) by which the records are to be produced.
SECTION 290
DIRECTOR ACCESS
Personal access
290(1)
A director of a company, registered scheme, registrable superannuation entity or disclosing entity has a right of access to the financial records at all reasonable times.
Note: Section
1232B
extends this section to the directors of the corporate director of a retail or wholesale CCIV.
History
S 290(1) amended by No 29 of 2023, s 3, Sch 6[31] (effective 1 July 2023).
S 290(1) amended by No 8 of 2022, s 3, Sch 2[111] (effective 1 July 2022).
Court order for inspection on director
'
s behalf
290(2)
On application by a director, the Court may authorise a person to inspect the financial records on the director
'
s behalf.
290(3)
A person authorised to inspect records may make copies of the records unless the Court orders otherwise.
290(4)
The Court may make any other orders it consider
[
sic
] appropriate, including either or both of the following:
(a)
an order limiting the use that a person who inspects the records may make of information obtained during the inspection;
(b)
an order limiting the right of a person who inspects the records to make copies in accordance with subsection
(3)
.
SECTION 291
291
SIGNPOSTS TO OTHER RELEVANT PROVISIONS
The following table sets out other provisions that are relevant to access to financial records.
Other provisions relevant to access to financial records
|
|
|
members
|
1 |
section 247A |
A member may apply to the Court for an order to inspect the records. |
|
|
auditor
|
2 |
section 310 |
The auditor has a right of access to the records. |
|
|
controllers
|
3 |
section 431 |
A controller of a corporation's property (for example, a receiver or receiver and manager) has a right of access to the records. |
|
|
ASIC
|
4 |
sections 28 to 39 of the ASIC Act |
ASIC has power to inspect the records. It also has power under subsection 289(3) of this Act to call for the production of financial records kept outside this jurisdiction. |