Commonwealth Consolidated Acts

SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 - SECT 130

When section applies

  (1)   This section applies to a person in relation to a superannuation entity if:

  (aa)   the person is an individual; and

  (ab)   the person is an auditor or actuary of the superannuation entity; 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 any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:

  (i)   actuarial or audit functions;

  (ii)   any other functions if, in the course of, or in connection with, the performance of the functions by the person, the person obtained sufficient information to enable the person to assess the financial position of the entity.

Regulator and trustee to be told about the financial position

  (2)   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.

The person may not have to tell the Regulator or a trustee about the matter

  (2A)   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.

Penalty for misinformation

  (2B)   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.

No civil liability for telling about a matter

  (3)   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.

Offences

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

Penalty:   50 penalty units.

  (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.

When financial position is unsatisfactory

  (6)   For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection.

  (6A)   Subsection   (6) does not limit the matters that a person may consider in forming such an opinion.

  (7)   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.