PART 16
-
ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES
Division 2
-
Obligations of actuaries and auditors
History
Div 2 heading inserted by No 25 of 2008, s 3 and Sch 1 item 60, effective 26 May 2008.
SECTION 130
OBLIGATIONS OF ACTUARIES AND AUDITORS
-
SOLVENCY
130(1)
When section applies.
This section applies to a person in relation to a superannuation entity if:
(aa)
the person is an individual; and
(a)
the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and
(b)
the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the
Financial Sector (Collection of Data) Act 2001
in relation to the entity.
History
S 130(1) amended by No 29 of 2023, s 3 and Sch 6 item 232, by inserting para (aa), effective 1 July 2023.
S 130(1) amended by No 61 of 2013, s 3 and Sch 1 item 80, by substituting
"
, the regulations, the prudential standards
"
for
"
or the regulations
"
in para (b), effective 1 July 2013.
S 130(1) amended by No 121 of 2001, s 3 and Sch 2 item 137, by inserting
"
or the
Financial Sector (Collection of Data) Act 2001
"
after
"
regulations
"
in para (b), effective 1 July 2002. For application provision see history note under s 36(1).
S 130(1) amended by No 144 of 1995.
130(2)
Regulator and trustee to be told about the financial position.
Subject to subsection (2A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity, about the matter in writing.
History
S 130(2) amended by No 154 of 2007, s 3 and Sch 1 Pt 2 item 243, by substituting
"
immediately
"
for
"
as soon as practicable
"
, effective 1 January 2008.
S 130(2) amended by No 53 of 2004, s 3 and Sch 3 item 8, by substituting
"
, as soon as practicable after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity,
"
for
"
tell the trustee of the entity
"
, effective 1 July 2004. For transitional provision, see note under s 129(3).
S 130(2) substituted by No 144 of 1995.
130(2A)
The person may not have to tell the Regulator or a trustee about the matter.
The person does not have to:
(a)
tell the Regulator about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person; or
(b)
tell a trustee of the entity about the matter if:
(i)
the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(2A) formerly read:
130(2A)
The person may not have to tell the trustee about the financial position.
The person does not have to tell the trustee of the entity about the matter if:
(a)
the person has been told by another person who is subject to section
130
that:
(i)
that other person has already told the trustee about the matter; and
(ii)
that other person has also told the Regulator about the matter or given the trustee a written notice under subsection
130(4)
; and
(b)
the first-mentioned person has no reason to disbelieve that other person.
S 130(2A) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 130(2A) amended by No 54 of 1998 and inserted by No 144 of 1995.
130(2B)
Penalty for misinformation.
A person (the
first person
) commits an offence if:
(a)
this section applies to the first person; and
(b)
the first person is aware of a matter that must, under this section, be told to the Regulator and a trustee; and
(c)
the first person tells another person to whom this section applies that the first person has told either or both the Regulator and a trustee about the matter; and
(d)
the first person has not done what the first person told the other person he or she had done.
Penalty: Imprisonment for 12 months.
Note:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6), by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(2B) formerly read:
130(2B)
Penalty for misleading information.
If:
(a)
this section applies to a person; and
(b)
that person is aware of a matter that must, under this section, be told to the trustee; and
(c)
the person tells another person that he or she has taken the action described in subparagraphs (2A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
S 130(2B) amended by No 31 of 2001, s 3 and Sch 1 item 184, by omitting
"
knowingly
"
after
"
the person
"
(first occurring) in para (c), effective 15 December 2001.
S 130(2B) inserted by No 144 of 1995.
130(3)
No civil liability for telling about a matter.
A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(3) formerly read:
130(3)
The Regulator may be told.
The person may tell the Regulator about the matter. The person is not liable in a civil action or civil proceeding in relation to the telling.
S 130(3) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 130(3) amended by No 54 of 1998 and No 144 of 1995.
130(4)
Offences.
A person commits an offence if the person contravenes subsection (2).
Penalty: 50 penalty units.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(4) formerly read:
130(4)
Trustee
'
s report.
If a person:
(a)
tells the trustee about the matter; and
(b)
does not tell the Regulator about the matter;
the person must, as soon as practicable, give the trustee a written notice requesting the trustee to give the person, before the end of the period specified in the notice, a written report about the action (if any) the trustee has taken, or proposes to take, to deal with the matter. The period specified in the notice must be reasonable. The trustee must comply with the request.
S 130(4) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 130(4) amended by No 54 of 1998 and No 144 of 1995.
130(5)
A person commits an offence if the person contravenes subsection
(2)
. This is an offence of strict liability.
Penalty: 25 penalty units.
Note 1:
For
strict liability
, see section
6.1
of the
Criminal Code
.
Note 2:
Chapter
2
of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6), by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(5) formerly read:
130(5)
Report to the Regulator.
If:
(a)
a person makes such a request; and
(b)
either:
(i)
the trustee does not comply with the request; or
(ii)
the trustee complies with the request, but the person is dissatisfied with:
(A)
the action taken, or proposed to be taken, by the trustee to deal with the matter concerned; or
(B)
the inaction of the trustee in relation to the matter concerned;
the person must give the Regulator a written report about the matter as soon as practicable after:
(c)
if subparagraph (b)(i) applies
-
the expiry of the deadline for the receipt of the report; or
(d)
if subparagraph (b)(ii) applies
-
the person becomes dissatisfied as mentioned in that subparagraph.
S 130(5) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting
"
the Regulator
"
for
"
APRA
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 130(5) amended by No 54 of 1998 and No 144 of 1995.
130(6)
(Repealed by No 53 of 2004)
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(6) formerly read:
130(6)
Offence.
A person who intentionally or recklessly contravenes subsection (2), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
S 130(6) amended by No 31 of 2001, s 3 and Sch 1 item 185, by inserting the note at the end, effective 15 December 2001.
130(7)
When financial position is unsatisfactory.
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.
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