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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 7-3 Reporting requirements

Division 327 Overview of reporting obligations

327-1   Reports that an Aboriginal and Torres Strait Islander corporation must prepare and lodge

             (1)  The reports that an Aboriginal and Torres Strait Islander corporation has to prepare are:

                     (a)  a general report in relation to each financial year (see Division 330); and

                     (b)  any reports (which might include a financial report, or directors’ report, for a financial year) that are required by the regulations (see Division 333); and

                     (c)  any reports that are required by the Registrar (see Division 336).

             (2)  All these reports must be lodged with the Registrar (see Division 348).

             (3)  A financial report may need to be audited (see paragraphs 333-15(2)(a), 336-1(7)(a) and 336-5(7)(a)). If it does:

                     (a)  Division 339 makes provision in relation to the conduct of the audit; and

                     (b)  the auditor’s report must be lodged with the Registrar.

Subdivision 339-F allows regulations to be made in relation to the appointment and removal of auditors.

             (4)  Financial reports, directors’ reports and auditors’ reports must be given to members on request (see Division 342).

             (5)  Other reports that the corporation is required to prepare may also have to be given to members (see subsection 333-15(3) and paragraphs 336-1(6)(a) and 336-5(6)(a)).



 

Division 330 General report for each financial year

330-1   Aboriginal and Torres Strait Islander corporation must prepare a general report each financial year

                   An Aboriginal and Torres Strait Islander corporation must prepare a general report in respect of each financial year.

Note 1:       The corporation may be exempted from this requirement under Part 7-4.

Note 2:       Unless exempted, failure to lodge the general report with the Registrar is an offence (see section 330-10).

330-5   Contents of general report

             (1)  A general report must:

                     (a)  set out the following details as at the end of the financial year:

                              (i)  the names and addresses of each of the corporation’s members;

                             (ii)  the names and addresses of each of the corporation’s directors;

                            (iii)  the name and address of the corporation’s secretary if the corporation is registered as a large corporation;

                            (iv)  the name and address of the corporation’s contact person if the corporation is registered as a small or medium corporation;

                             (v)  the address of the corporation’s registered office if the corporation is registered as a large corporation;

                            (vi)  the address of the corporation’s document access address if the corporation is registered as a small or medium corporation; and

                     (b)  contain any other information required by the regulations; and

                     (c)  comply with any further requirements imposed by the regulations.

             (2)  Without limiting paragraph (1)(c), the regulations:

                     (a)  may require that the general report be accompanied by a declaration by a particular officer, or officers, of the corporation; and

                     (b)  may require that a declaration in relation to the report be based on a resolution of the corporation’s directors; and

                     (c)  may require the general report to be prepared in a particular manner.

330-10   General report to be lodged with Registrar

             (1)  The corporation must lodge the general report with the Registrar.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          See also section 265-40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

             (2)  The time for lodgment is:

                     (a)  within 3 months after the end of the financial year; or

                     (b)  such longer period as is prescribed by the regulations.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .



 

Division 333 Financial and other reports required by the regulations

333-1   What this Division is about

This Division deals with the financial reports, directors’ reports and other reports that the regulations may require an Aboriginal and Torres Strait Islander corporation to prepare.

The Registrar may increase the reporting requirements in respect of an Aboriginal and Torres Strait Islander corporation or a class of Aboriginal and Torres Strait Islander corporation (see Division 336). This may be either by way of requiring an additional report or by way of imposing additional requirements in relation to a report that the regulations require the corporation or corporations to prepare.

The Registrar may exempt an Aboriginal and Torres Strait Islander corporation, or a class of Aboriginal and Torres Strait Islander corporation, from some or all of the reporting requirements (see Part 7-4).

333-5   Regulations may require financial reports, directors’ reports and other reports to be prepared

             (1)  The regulations may require reports to be prepared by:

                     (a)  a specified Aboriginal and Torres Strait Islander corporation; or

                     (b)  a specified class of Aboriginal and Torres Strait Islander corporation.

             (2)  Regulations made for the purposes of subsection (1) may require an Aboriginal and Torres Strait Islander corporation, or each Aboriginal and Torres Strait Islander corporation included in a class of Aboriginal and Torres Strait Islander corporation, to prepare a report:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist at a particular date or dates.

This subsection does not limit subsection (1).

             (3)  Regulations made for the purposes of subsection (1) may require an Aboriginal and Torres Strait Islander corporation, or each Aboriginal and Torres Strait Islander corporation included in a class of Aboriginal and Torres Strait Islander corporation, to prepare either or both of the following:

                     (a)  a financial report for a financial year;

                     (b)  a directors’ report for a financial year.

This subsection does not limit subsection (1).

First financial year

             (4)  Subject to subsection (4A), the first financial year for an Aboriginal and Torres Strait Islander corporation starts on the day on which it is registered and ends:

                     (a)  on the 30 June next following that day if the corporation is registered between 1 July and 31 December; and

                     (b)  on the second 30 June next following that day if the corporation is registered between 1 January and 30 June.

          (4A)  However, if the corporation is registered under Part 2-3 as a result of an application made under Division 22, the first financial year for the corporation is the period that:

                     (a)  starts on:

                              (i)  the 1 June last preceding the day on which it is registered; or

                             (ii)  if the corporation came into existence after that 1 June—the day on which the corporation came into existence; and

                     (b)  ends on the 30 June next following the day on which it is registered.

Financial year after the first

             (5)  Subsequent financial years must:

                     (a)  start at the end of the previous financial year; and

                     (b)  be 12 months long.

333-10   Contents of reports

General

             (1)  A section 333-5 report must contain the information required by the regulations.

             (2)  Regulations made for the purposes of subsection (1) may impose a requirement by applying, adopting or incorporating (with or without modification) provisions of the accounting standards as in force from time to time. This subsection does not limit subsection (1).

Financial reports

             (3)  If a section 333-5 report is a financial report for a financial year, regulations made for the purposes of subsection (1) may impose one or more of the following requirements:

                     (a)  a requirement that the financial report is to consist of the financial statements, financial notes and declarations specified in:

                              (i)  the regulations; or

                             (ii)  the accounting standards as in force from time to time (with the modifications (if any) specified in the regulations);

                     (b)  a requirement that the financial report deal with the financial affairs of another corporation or entity or a consolidated entity of which the corporation is a member;

                     (c)  a requirement that the financial report give a true and fair view of:

                              (i)  the financial position and performance of the corporation; and

                             (ii)  the financial position and performance of any other corporation or entity whose financial affairs are required to be reported on in the financial report or a consolidated entity of which the corporation is a member.

This subsection does not limit subsection (1).

333-15   Other requirements in relation to report

Manner of preparing report

             (1)  The regulations may require a section 333-5 report to be prepared in the manner required by the regulations.

Manner of preparing financial report

             (2)  If a section 333-5 report is a financial report, regulations made for the purposes of subsection (1) of this section may do one or more of the following:

                     (a)  require that the financial report, or a part of it, be audited;

                     (b)  require that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  require that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  require that the audit of the financial report, or a part of it, be conducted in accordance with the auditing standards;

                     (e)  require that the financial report, or a part of it, must be prepared in compliance with the accounting standards;

                      (f)  require that the corporation’s directors make a declaration of the kind specified in the regulations in respect of the financial report;

                     (g)  require that a declaration by the directors in relation to the financial report must only be made after each person who performs a particular function in relation to the corporation has given the directors a declaration of a kind specified in the regulations in respect of the financial report;

                     (h)  require that specified officers of the corporation sign the financial report.

This subsection does not limit subsection (1).

Note:          Paragraph (a)—Division 339 deals with the audit of a financial report.

Giving report to members

             (3)  If a section 333-5 report is not a financial report or a directors’ report for a financial year, the regulations may:

                     (a)  require the corporation to give a copy of the report to its members (whether generally or on request); and

                     (b)  specify the time within which, and the manner in which, the report is to be given to the members.

Note:          An Aboriginal and Torres Strait Islander corporation is required to provide copies of a financial report or a directors’ report to members on request under Division 342.

333-20   Aboriginal and Torres Strait Islander corporation to obtain audit report if audit required

                   If:

                     (a)  a section 333-5 report in relation to an Aboriginal and Torres Strait Islander corporation is a financial report; and

                     (b)  the corporation is required by:

                              (i)  regulations made for the purposes of section 333-15; or

                             (ii)  a determination by the Registrar under section 336-1 or 336-5;

                            to have the report, or a part of the report, audited;

the corporation must obtain an auditor’s report in relation to the report or that part of the report.



 

Division 336 Registrar may increase reporting requirements

336-1   Registrar may require additional report, or otherwise increase reporting requirements, for particular corporation

Additional report or additional reporting requirements

             (1)  The Registrar may:

                     (a)  determine, in writing, that a particular Aboriginal and Torres Strait Islander corporation must prepare a report in addition to any general report or section 333-5 reports the corporation is required to prepare; or

                     (b)  determine, in writing, that a particular Aboriginal and Torres Strait Islander corporation must:

                              (i)  include particular additional information in a general report or section 333-5 report; or

                             (ii)  meet particular additional requirements in relation to the manner in which a general report or section 333-5 report is to be prepared; or

                            (iii)  provide a general report or section 333-5 report to its members (whether generally or on request); or

                            (iv)  provide a general report or section 333-5 report to its members within the time, and in the manner, specified in the determination.

Note:          See Part 7-5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  A determination under subsection (1) is not a legislative instrument.

Additional reports

             (3)  A determination under paragraph (1)(a) must specify:

                     (a)  the information to be included in the report; and

                     (b)  any other requirements to be met in relation to the manner in which the report is prepared.

             (4)  A determination under paragraph (1)(a) may require the report to be prepared:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist as at particular date or dates.

This subsection does not limit subsection (3).

             (5)  The determination may require the report to be prepared for all periods of a particular kind that start or end on or after a date specified in the determination. This subsection does not limit subsection (3).

             (6)  A determination under paragraph (1)(a) may:

                     (a)  specify that the report is to be provided to the corporation’s members (whether generally or on request); and

                     (b)  specify the time by which, and the manner in which, the report is to be provided to the corporation’s members.

Additional requirements for financial report

             (7)  If a section 333-5 report is a financial report, the Registrar may determine under paragraph (1)(b) that one or more of the following requirements must be met in relation to the report:

                     (a)  a requirement that the report, or a part of it, be audited;

                     (b)  a requirement that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  a requirement that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  a requirement that the audit of the report, or a part of it, be conducted in accordance with the auditing standards.

This subsection does not limit paragraph (1)(b).

Determination

             (8)  A determination under subsection (1) may be in respect of a past or future period but if it is in respect of a past period, the determination must be made no later than 6 years after the end of that period.

             (9)  The Registrar may, in writing, revoke, vary or suspend a determination under subsection (1).

           (10)  A revocation, variation or suspension under subsection (9) is not a legislative instrument.

Notice of determination

           (11)  The Registrar must give the corporation written notice of the making, revocation, variation or suspension of the determination.

336-5   Registrar may require additional reports, or otherwise increase reporting requirements, for class of corporation

Additional reports or additional reporting requirement

             (1)  The Registrar may:

                     (a)  make a determination in writing requiring a particular class of Aboriginal and Torres Strait Islander corporation to prepare a report in addition to any general report or section 333-5 report the corporations are required to prepare; or

                     (b)  make a determination in writing requiring a particular class of Aboriginal and Torres Strait Islander corporation to:

                              (i)  include particular additional information in a general report or section 333-5 report; or

                             (ii)  meet particular additional requirements in relation to the manner in which a general report or section 333-5 report is prepared; or

                            (iii)  provide a general report or section 333-5 report to their members (whether generally or on request); or

                            (iv)  provide a general report or section 333-5 report to their members within the time, and in the manner, specified in the determination.

Note:          See Part 7-5 for the criteria the Registrar must apply in deciding whether to make a determination under this subsection.

             (2)  A determination under subsection (1) is a legislative instrument.

Additional reports

             (3)  A determination under paragraph (1)(a) must specify:

                     (a)  the information to be included in the report; and

                     (b)  any other requirements to be met in relation to the manner in which the report is prepared.

             (4)  A determination under paragraph (1)(a) may require the report to be prepared:

                     (a)  for a particular period or periods; or

                     (b)  in relation to circumstances as they exist as at a particular date or dates.

This subsection does not limit subsection (3).

             (5)  The determination may require the report to be prepared for all periods of a particular kind that start or end on or after a date specified in the determination. This subsection does not limit subsection (4).

             (6)  A determination under paragraph (1)(a) may:

                     (a)  specify that the report is to be provided to the corporations’ members (whether generally or on request); and

                     (b)  specify the time within which, and manner in which, the report is to be provided to the members.

Additional requirements for financial report

             (7)  If the section 333-5 report is a financial report, the Registrar may determine under paragraph (1)(b) that one or more of the following requirements are to be met in relation to the report:

                     (a)  a requirement that the financial report, or a part of it, be audited;

                     (b)  a requirement that the auditor be:

                              (i)  an individual auditor who has particular qualifications or experience; or

                             (ii)  an audit firm that has a member or members who have particular qualifications or experience; or

                            (iii)  an authorised audit company;

                     (c)  a requirement that a person may only participate in the conduct of the audit in a particular capacity if the person has the qualifications or experience specified in the regulations;

                     (d)  a requirement that the audit of the report, or a part of it, be conducted in accordance with the auditing standards.

This subsection does not limit paragraph (1)(b).

Determinations

             (8)  A determination under subsection (1):

                     (a)  may be expressed to be subject to conditions; and

                     (b)  may be in respect of a past or future period but if it is in respect of a past period, the determination must be made no later than 6 years after the end of that period.

             (9)  The Registrar may, in writing, revoke, vary or suspend a determination under subsection (1).

Notice of determinations

           (10)  Notice of the making, revocation, variation or suspension of a determination under subsection (1) must be published in the Gazette .



 

Division 339 Audit of financial reports

Subdivision 339-A Introduction

339-1   What this Division is about

An Aboriginal and Torres Strait Islander corporation may be required to have its financial report for a financial year audited (see subsections 333-15(1), 336-1(7) and 336-5(7)).

This Division deals with the conduct of the audit of the financial report and the preparation of the auditor’s report in relation to the financial report.

The auditor’s report must cover the matters set out in section 339-40.

Auditors are required to be independent of the corporations that they are auditing (see Subdivision 339-D). Auditors also have certain powers and duties (see Subdivision 339-E).

339-5   Application of Division

             (1)  This Division applies if:

                     (a)  an auditor undertakes an audit of a financial report, or a part of a financial report, of an Aboriginal and Torres Strait Islander corporation; and

                     (b)  one of the following requires the report, or that part of the report, to be audited:

                              (i)  this Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5.

             (2)  If only a part of the report is required to be audited, this Division applies as if references to the financial report were references to that part of the financial report.

339-10   When financial report required to comply with accounting standards

                   A financial report is required to comply with the accounting standards if one of the following requires the report to comply with the accounting standards:

                     (a)  an applied provision of the Corporations Act;

                     (b)  regulations made for the purposes of section 333-15;

                     (c)  a determination by the Registrar under section 336-1 or 336-5.

339-15   When audit required to be conducted in accordance with auditing standards

                   An audit is required to be conducted in accordance with the auditing standards if one of the following requires the audit to be conducted in accordance with the auditing standards:

                     (a)  an applied provision of the Corporations Act;

                     (b)  regulations made for the purposes of section 333-15;

                     (c)  a determination by the Registrar under section 336-1 or 336-5.

339-20   Lead and review auditors

Lead auditor

             (1)  If an audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the lead auditor for the audit is the registered company auditor who is primarily responsible to the audit firm or the audit company for the conduct of the audit.

Review auditor

             (2)  If an individual auditor, audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the review auditor for the audit is the registered company auditor (if any) who is primarily responsible to the individual auditor, the audit firm or the audit company for reviewing the conduct of the audit.

339-25   Professional members of the audit team

                   If an individual auditor, audit firm or audit company conducts an audit of a financial report of an Aboriginal and Torres Strait Islander corporation, the professional members of the audit team are:

                     (a)  any registered company auditor who participates in the conduct of the audit; and

                     (b)  any other person who participates in the conduct of the audit and, in the course of doing so, exercises professional judgment in relation to the application of or compliance with:

                              (i)  accounting standards; or

                             (ii)  auditing standards; or

                            (iii)  the provisions of this Act dealing with financial reporting and the conduct of audits; and

                     (c)  any other person who is in a position to directly influence the outcome of the audit because of the role they play in the design, planning, management, supervision or oversight of the audit.

Subdivision 339-B Conduct of the audit

339-30   Auditor to form opinion

                   The auditor of a financial report must form an opinion about:

                     (a)  whether the financial report is in accordance with:

                              (i)  this Act; and

                             (ii)  any applicable regulations made for the purposes of sections 333-10 and 333-15; and

                            (iii)  any applicable determinations made by the Registrar under section 336-1 or 336-5; and

                     (b)  whether the auditor has been given all information, explanations and assistance necessary for the conduct of the audit; and

                     (c)  whether the corporation has kept financial records sufficient to enable the financial report to be prepared and audited; and

                     (d)  whether the corporation has kept other records and registers as required by this Act; and

                     (e)  any other matter specified in the regulations.

339-35   Auditor obligations in relation to auditing standards

             (1)  This section applies if the audit of a financial report is required to be conducted in accordance with the auditing standards.

             (2)  If an individual auditor, or an audit company, conducts the audit of the financial report, the individual auditor or audit company must conduct the audit in accordance with the auditing standards.

Penalty:  50 penalty units.

             (3)  If an audit firm, or an audit company, conducts the audit of the financial report, the lead auditor for the audit must ensure that the audit is conducted in accordance with the auditing standards.

Penalty:  50 penalty units.

             (4)  An offence against subsection (2) or (3) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

339-40   Auditor’s report

             (1)  The auditor of a financial report must prepare a report for the corporation’s members on whether the auditor is of the opinion that the financial report is in accordance with:

                     (a)  this Act; and

                     (b)  any applicable regulations made for the purposes of sections 333-10 and 333-15; and

                     (c)  any applicable determinations made by the Registrar under section 336-1 or 336-5.

If not of that opinion, the auditor’s report must say why.

Penalty:  50 penalty units.

             (2)  If:

                     (a)  the financial report is required to comply with the accounting standards; and

                     (b)  the auditor is of the opinion that the financial report does not comply with an accounting standard;

the auditor’s report must, to the extent it is practicable to do so, quantify the effect that non-compliance has on the financial report. If it is not practicable to quantify the effect fully, the report must say why.

Penalty:  50 penalty units.

             (3)  The auditor’s report must describe:

                     (a)  any defect or irregularity in the financial report; and

                     (b)  any deficiency, failure or shortcoming in respect of the matters referred to in paragraph 339-30(b), (c) or (d).

Penalty:  50 penalty units.

             (4)  If the audit of the financial report is required to be conducted in accordance with some or all of the auditing standards, the auditor’s report must include any statements or disclosures required by those auditing standards.

Penalty:  50 penalty units.

             (5)  The auditor’s report must contain any other information required by the regulations.

             (6)  The report must specify the date on which it is made.

Penalty:  50 penalty units.

             (7)  An offence against subsection (1), (3), (4) or (6) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

339-45   Other requirements in relation to auditor’s report

                   The auditor’s report must be prepared in the manner required by the regulations.

339-50   Auditor’s independence declaration

Application of section

             (1)  This section applies if:

                     (a)  section 339-75 applies in relation to the audit of a financial report of the Aboriginal and Torres Strait Islander corporation; or

                     (b)  regulations made for the purposes of section 339-80 provide for auditor independence requirements to be met in relation to the audit of a financial report of the Aboriginal and Torres Strait Islander corporation.

Contravention by individual auditor

             (2)  If the auditor is an individual auditor, the auditor must give the directors of the corporation either:

                     (a)  a written declaration that, to the best of the auditor’s knowledge and belief, there have been:

                              (i)  no contraventions of the auditor independence requirements of this Act in relation to the audit; and

                             (ii)  no contraventions of any applicable code of professional conduct in relation to the audit; or

                     (b)  a written declaration that, to the best of the individual auditor’s knowledge and belief, the only contraventions of:

                              (i)  the auditor independence requirements of this Act in relation to the audit; or

                             (ii)  any applicable code of professional conduct in relation to the audit;

                            are those contraventions the details of which are set out in the declaration.

Penalty:  10 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

Contravention by lead auditor

             (4)  If the auditor is an audit firm or audit company, the lead auditor for the audit must give the directors of the corporation:

                     (a)  a written declaration that, to the best of the lead auditor’s knowledge and belief, there have been:

                              (i)  no contraventions of the auditor independence requirements of this Act in relation to the audit; and

                             (ii)  no contraventions of any applicable code of professional conduct in relation to the audit; or

                     (b)  a written declaration that, to the best of the lead auditor’s knowledge and belief, the only contraventions of:

                              (i)  the auditor independence requirements of this Act in relation to the audit; or

                             (ii)  any applicable code of professional conduct in relation to the audit;

                            are those contraventions details of which are set out in the declaration.

Penalty:  10 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

             (6)  The declaration under subsection (2) or (4):

                     (a)  must be given when the audit report is given to the directors of the corporation; and

                     (b)  must be signed by the person making the declaration.

Self-incrimination

             (7)  An individual is not excused from giving a declaration under subsection (2) or (4) on the ground that giving the declaration might tend to incriminate the individual or expose the individual to a penalty.

Use/derivative use indemnity

             (8)  However, neither:

                     (a)  the information included in the declaration; nor

                     (b)  any information, document or thing obtained as a direct or indirect consequence of including the information in the declaration;

is admissible in evidence against the individual in any criminal proceedings, or in any proceedings that would expose the person to a penalty, other than:

                     (c)  proceedings for an offence against section 561-1 or 561-5 in relation to the declaration; or

                     (d)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the declaration.

339-55   Audit working papers to be retained for 7 years

Application of section

             (1)  This section applies if the audit is required to be conducted in accordance with the auditing standards.

Offence by individual auditor or audit company

             (2)  The auditor commits an offence if:

                     (a)  the auditor is an individual auditor or an audit company; and

                     (b)  the auditor does not retain all audit working papers prepared by or for, or considered or used by, the auditor in accordance with the requirements of the auditing standards until:

                              (i)  the end of 7 years after the date of the audit report prepared in relation to the audit to which the audit working papers relate; or

                             (ii)  an earlier date determined for the audit working papers by the Registrar under subsection (7).

Penalty:  50 penalty units.

             (3)  An offence against subsection (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

Offence by member of audit firm

             (4)  A person (the defendant ) commits an offence if:

                     (a)  the auditor is an audit firm; and

                     (b)  the audit firm fails, at a particular time, to retain all audit working papers prepared by or for, or considered or used by, the audit firm in accordance with the requirements of the auditing standards until:

                              (i)  the end of 7 years after the date of the audit report prepared in relation to the audit to which the documents relate; or

                             (ii)  the earlier date determined by the Registrar for the audit working papers under subsection (7); and

                     (c)  the defendant is a member of the firm at that time.

Penalty:  50 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note 1:       For strict liability , see section 6.1 of the Criminal Code .

Note 2:       Subsection (6) provides a defence.

Defence

             (6)  A member of an audit firm does not commit an offence at a particular time under subsection (4) if the member either:

                     (a)  does not know at that time of the circumstances that constitute the contravention of subsection (4); or

                     (b)  knows 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 subsection (6) (see subsection 13.3(3) of the Criminal Code ).

Earlier retention date for audit working papers

             (7)  The Registrar may, on application by a person, determine, in writing, an earlier date for the audit working papers for the purposes of paragraphs (2)(b) and (4)(b) if:

                     (a)  the auditor is an individual auditor and the auditor:

                              (i)  dies; or

                             (ii)  ceases to be a registered company auditor; or

                     (b)  the auditor is an audit firm and the firm is dissolved (otherwise than simply as part of a reconstitution of the firm because of the death, retirement or withdrawal of a member or members or because of the admission of a new member or members); or

                     (c)  the auditor is an audit company and the company:

                              (i)  is wound up; or

                             (ii)  ceases to be an authorised audit company.

             (8)  A determination under subsection (7) is not a legislative instrument.

             (9)  In deciding whether to make a determination under subsection (7), the Registrar must have regard to:

                     (a)  whether the Registrar or ASIC is inquiring into or investigating any matters in respect of:

                              (i)  the auditor; or

                             (ii)  the audited body for the audit to which the documents relate; and

                     (b)  whether the professional accounting bodies have any investigations or disciplinary action pending in relation to the auditor; and

                     (c)  whether civil or criminal proceedings in relation to:

                              (i)  the conduct of the audit; or

                             (ii)  the contents of the financial report to which the audit working papers relate;

                            have been, or are about to be, commenced; and

                     (d)  any other relevant matter.

Audit working papers kept in electronic form

           (10)  For the purposes of this section, if audit working papers are in electronic form they are taken to be retained only if they are convertible into hard copy.

Subdivision 339-C Qualification, experience and registration

339-60   Qualification and experience: individual auditor

             (1)  An individual contravenes this section if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is an individual auditor, the auditor must have particular qualification or experience; and

                     (c)  the individual acts as auditor in relation to the financial report or that part of it; and

                     (d)  the individual does not have the qualification or experience referred to in paragraph (b).

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An individual contravenes this section if:

                     (a)  one of the following requires that a person may only participate in a particular capacity in the conduct of the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if the person has particular qualifications or experience:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the individual participates in that capacity in the conduct of the audit of the financial report; and

                     (c)  the individual does not have those qualifications or that experience.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

339-65   Qualification and experience: audit firm

             (1)  A person (the defendant ) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is an audit firm, the audit firm must have a member or members who have particular qualifications or experience; and

                     (c)  at a particular time, a firm acts as auditor in relation to the financial report or a part of it; and

                     (d)  at that time, the firm does not have a member or members who satisfy the requirement referred to in paragraph (b); and

                     (e)  the defendant is a member of the firm at that time; and

                      (f)  the defendant is aware of the circumstances referred to in paragraphs (c) and (d) at that time.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  A person (the defendant ) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is an audit firm, the audit firm must have a member or members who have particular qualifications or experience; and

                     (c)  at a particular time, a firm acts as auditor in relation to the financial report or a part of it; and

                     (d)  at that time, the firm does not satisfy the requirement referred to in paragraph (b); and

                     (e)  the defendant is a member of the firm at that time.

Penalty:  10 penalty units.

             (3)  For the purposes of an offence based on subsection (2), strict liability applies to the physical elements of the offence specified in paragraphs (2)(a) and (b).

Note 1:       For strict liability , see section 6.1 of the Criminal Code .

Note 2:       Subsection (4) provides a defence.

             (4)  A member of an audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member either:

                     (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 subsection (4) (see subsection 13.3(3) of the Criminal Code ).

339-70   Registration requirements for appointment of company as auditor

             (1)  A company contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  the company acts as auditor in relation to the report or a part of it; and

                     (d)  the company is not an authorised audit company.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  A person (the defendant ) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  at a particular time, a company acts as auditor in relation to the report or a part of it; and

                     (d)  at that time, the company is not an authorised audit company; and

                     (e)  the defendant is a director of the company at that time; and

                      (f)  the defendant is aware of the circumstances referred to in paragraphs (c) and (d) at that time.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (3)  A person (the defendant ) contravenes this subsection if:

                     (a)  one of the following imposes a requirement in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that, if the auditor is a company, the company must be an authorised audit company; and

                     (c)  at a particular time, a company acts as auditor in relation to the report or that part of it; and

                     (d)  at that time, the company is not an authorised audit company; and

                     (e)  the defendant is a director of the company at that time.

Penalty:  10 penalty units.

             (4)  For the purposes of an offence based on subsection (3), strict liability applies to the physical elements of the offence specified in paragraphs (3)(c) and (d).

Note 1:       For strict liability , see section 6.1 of the Criminal Code .

Note 2:       Subsection (5) provides a defence.

             (5)  A director of a company does not commit an offence at a particular time because of a contravention of subsection (3) if the director either:

                     (a)  does not know at that time of the circumstances that constitute the contravention of subsection (3); or

                     (b)  knows of those circumstances at that time but takes all reasonable steps to correct the contravention of subsection (3) as soon as possible after the director becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

Subdivision 339-D Auditor independence

339-75   Independence of auditors: application of Corporations Act auditor independence provisions

Application of section

             (1)  This section applies in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  one of the following imposes a requirement in relation to the audit:

                              (i)  an applied provision of the Corporations Act;

                             (ii)  regulations made for the purposes of section 333-15;

                            (iii)  a determination by the Registrar under section 336-1 or 336-5; and

                     (b)  the requirement is that the auditor be:

                              (i)  an individual auditor who is a registered company auditor; or

                             (ii)  an audit firm that has at least one member who is a registered company auditor who is ordinarily resident in Australia; or

                            (iii)  an authorised audit company.

             (2)  The Corporations Act auditor independence provisions apply in relation to the audit as if:

                     (a)  references in those provisions to an audited body were references to an Aboriginal and Torres Strait Islander corporation; and

                     (b)  references in those provisions to a company were references to an Aboriginal and Torres Strait Islander corporation.

The Corporations Act auditor independence provisions apply with the modifications set out in the regulations.

             (3)  Regulations made for the purposes of subsection (2) must not:

                     (a)  increase, or have the effect of increasing, the maximum penalty for any offence; or

                     (b)  widen, or have the effect of widening, the scope of any offence.

             (4)  In this Act:

Corporations Act auditor independence provisions means:

                     (a)  Division 3 of Part 2M.4 of the Corporations Act; and

                     (b)  the provisions of that Act (including Parts 1.2 and 9.4 and Schedule 3 but not including Parts 1.1, 1.1A and 9.4A) to the extent to which they relate to the operation of Part 2M.4 of that Act; and

                     (c)  the regulations made under that Act for the purposes of Part 2M.4 of that Act and the provisions referred to in paragraph (b).

339-80   Independence of auditors: alternative independence requirements

             (1)  This section applies in relation to the audit of a financial report of an Aboriginal and Torres Strait Islander corporation if section 339-75 does not apply to the audit.

             (2)  The regulations may provide for auditor independence requirements to be met in relation to the audit.

             (3)  Without limiting subsection (2), the regulations may:

                     (a)  specify as a requirement that a person comply with any applicable code of professional conduct in relation to the audit; or

                     (b)  provide that a person commits an offence in particular circumstances if the auditor independence requirements are not met.

             (4)  Regulations made for the purposes of paragraph (3)(b) must not prescribe penalties exceeding 50 penalty units for contraventions of the regulations.

Subdivision 339-E Auditor’s powers and duties

339-85   Auditor’s power to obtain information

                   The auditor:

                     (a)  has a right of access at all reasonable times to the books of the corporation; and

                     (b)  may require any officer to give the auditor information, explanations or other assistance for the purposes of the audit.

A request under paragraph (b) must be a reasonable one.

339-90   Reporting to the Registrar

Contravention by individual auditor

             (1)  If the auditor is an individual, the auditor commits an offence if:

                     (a)  the auditor is aware of circumstances that:

                              (i)  the auditor has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (b)  if subparagraph (a)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (c)  the auditor does not notify the Registrar in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Contravention by audit company

             (2)  If the auditor is an audit company, the auditor commits an offence if:

                     (a)  the lead auditor for the audit is aware of circumstances that:

                              (i)  the lead auditor has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (b)  if subparagraph (a)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the lead auditor believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (c)  the lead auditor does not notify the Registrar 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.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Contravention by lead auditor

             (3)  A person commits an offence if:

                     (a)  the person is the lead auditor for the audit; and

                     (b)  the person is aware of circumstances that:

                              (i)  the person has reasonable grounds to suspect amount to a contravention of this Act; or

                             (ii)  amount to an attempt, in relation to the audit, by any person to unduly influence, coerce, manipulate or mislead a person involved in the conduct of the audit (see subsection (6)); or

                            (iii)  amount to an attempt, by any person, to otherwise interfere with the proper conduct of the audit; and

                     (c)  if subparagraph (b)(i) applies:

                              (i)  the contravention is a significant one; or

                             (ii)  the contravention is not a significant one and the person believes that the contravention has not been or will not be adequately dealt with by commenting on it in the auditor’s report or bringing it to the attention of the directors; and

                     (d)  the person does not notify the Registrar in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

Significant contraventions

             (4)  In determining for the purposes of this section whether a contravention of this Act is a significant one, have regard to:

                     (a)  the level of penalty provided for in relation to the contravention; and

                     (b)  the effect that the contravention has, or may have, on:

                              (i)  the overall financial position of the corporation; or

                             (ii)  the adequacy of the information available about the overall financial position of the corporation; and

                     (c)  any other relevant matter.

             (5)  Without limiting paragraph (4)(a), a penalty provided for in relation to a contravention of a provision of Part 7-2 or 7-3, includes a penalty imposed on a director, because of the operation of section 363-1, for failing to take reasonable steps to comply with, or to secure compliance with, that provision.

Person involved in an audit

             (6)  A person involved in the conduct of an audit is:

                     (a)  the auditor; or

                     (b)  the lead auditor for the audit; or

                     (c)  the review auditor for the audit; or

                     (d)  a professional member of the audit team for the audit; or

                     (e)  any other person involved in the conduct of the audit.

339-95   Assisting auditor

             (1)  An officer of an Aboriginal and Torres Strait Islander corporation must:

                     (a)  allow the auditor access to the books of the corporation; and

                     (b)  give the auditor any information, explanation or assistance required under section 339-85.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          Books include registers and documents generally (not only the accounting “books”) (see the definition of books in section 700-1).

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

Subdivision 339-F Appointment and removal of auditors

339-100   Appointment and removal of auditors

             (1)  The regulations may make provision in relation to the appointment and removal of auditors for Aboriginal and Torres Strait Islander corporations.

             (2)  Without limiting subsection (1), the regulations:

                     (a)  may impose an obligation to replace an auditor who ceases to be auditor; and

                     (b)  may give the Registrar the power to appoint an auditor in particular circumstances; and

                     (c)  may provide for the process by which an auditor is appointed; and

                     (d)  may provide for the process by which an auditor’s appointment may be terminated; and

                     (e)  may provide that an auditor may resign only with the consent of the Registrar.



 

Division 342 Financial reporting to members

342-1   What this Division is about

An Aboriginal and Torres Strait Islander corporation that is required to produce a financial report and a directors’ report for a financial year must give members copies of the reports on request.

The corporation must also give members, on request, a copy of the auditor’s report if the corporation has to obtain one.

342-5   Annual financial reporting to members

             (1)  An Aboriginal and Torres Strait Islander corporation that is required to prepare:

                     (a)  a financial report for a financial year; or

                     (b)  a directors’ report for a financial year;

must give a copy of the report to each member who requests it under subsections (3A) and (3B).

Penalty:  10 penalty units.

             (2)  An Aboriginal and Torres Strait Islander corporation that is required to have a financial report, or a part of a financial report, for a financial year audited must give a copy of the auditor’s report to each member who requests it under subsections (3A) and (3B).

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

Request for financial report, directors’ report or auditor’s report

          (3A)  A member of the Aboriginal and Torres Strait Islander corporation may request the corporation to give the member a copy of:

                     (a)  a financial report for a financial year; or

                     (b)  a directors’ report for a financial year; or

                     (c)  if the corporation is required to have a financial report, or a part of a financial report, for a financial year audited—the auditor’s report in relation to the financial report or that part of a financial report.

          (3B)  The request must be made:

                     (a)  during the financial year; or

                     (b)  within 12 months after the end of the financial year.

          (3C)  If:

                     (a)  a member of the Aboriginal and Torres Strait Islander corporation requests the corporation to give the member a copy of a financial report; and

                     (b)  the corporation is required to have the financial report, or a part of the financial report, audited;

the member is taken, for the purposes of this section, to request the corporation also to give the member a copy of the auditor’s report in relation to that financial report or that part of that financial report.

          (3D)  If a member of the Aboriginal and Torres Strait Islander corporation requests the corporation to give the member a copy of an auditor’s report in relation to a financial report, or a part of a financial report, the member is taken, for the purposes of this section to request the corporation also to give the member a copy of the financial report.

Sending reports

             (4)  An Aboriginal and Torres Strait Islander corporation may send a report referred to in subsection (1) or (2) to a member using an electronic means if the member has nominated that means as one by which the member may be sent reports referred to in that subsection.

             (5)  If a member of an Aboriginal and Torres Strait Islander corporation nominates:

                     (a)  an electronic means (the nominated notification means ) by which the member may be notified that reports referred to in subsection (1) or (2) are available; and

                     (b)  an electronic means (the nominated access means ) the member may use to access those reports;

the corporation may send a report referred to in that subsection to the member by notifying the member (using the nominated notification means):

                     (c)  that the report is available; and

                     (d)  how the member may make use of the nominated access means to access the report.

             (6)  Subsections (4) and (5) do not limit subsection (1) or (2).

342-10   Deadline for giving member copy of report

                   If a member of an Aboriginal and Torres Strait Islander corporation requests the corporation under subsections 342-5(3A) and (3B) to give the member a copy of a report in relation to a financial year, the corporation must give the member the copy of the report within 14 days after:

                     (a)  the lodgment of the report under section 348-1 if the request is made before the report is lodged; and

                     (b)  the request is made if the request is made on or after the lodgment of the report under section 348-1.



 

Division 345 Consolidated financial report

345-1   Directors and officers of controlled entity to give information

             (1)  If an Aboriginal and Torres Strait Islander corporation has to prepare a consolidated financial report, a director or officer of a controlled entity must give the corporation all information requested that is necessary to prepare the consolidated financial report.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

345-5   Auditor’s power to obtain information from controlled entity

             (1)  An auditor who audits a consolidated financial report:

                     (a)  has a right of access at all reasonable times to the books of any controlled entity; and

                     (b)  may require any officer of the entity to give the auditor information, explanations or other assistance for the purposes of the audit.

A request under paragraph (b) must be a reasonable one.

             (2)  The information, explanations or other assistance required under paragraph (1)(b) is to be given at the expense of the Aboriginal and Torres Strait Islander corporation whose financial report is being audited.

345-10   Controlled entity to assist auditor

             (1)  If an Aboriginal and Torres Strait Islander corporation has to prepare a consolidated financial report, an officer or auditor of a controlled entity must:

                     (a)  allow the auditor for the corporation access to the controlled entity’s books; and

                     (b)  give the auditor any information, explanation or assistance required under section 345-5.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

             (2)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

345-15   Application of sections 345-1 to 345-10 to entity that has ceased to be controlled

                   Sections 345-1, 345-5 and 345-10 apply to the preparation or audit of a financial report that covers a controlled entity even if the entity is no longer controlled by the Aboriginal and Torres Strait Islander corporation whose financial report is being prepared or audited.



 

Division 348 Lodging reports

348-1   Lodging annual reports with the Registrar

             (1)  An Aboriginal and Torres Strait Islander corporation that has to prepare or obtain a report under this Part (other than a general report) must lodge the report with the Registrar.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

Note:          See also section 265-40 for offences committed by the secretary of an Aboriginal and Torres Strait Islander corporation.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

             (3)  The time for lodgment is:

                     (a)  within 3 months after the end of the financial year if the report is:

                              (i)  a financial report for a financial year; or

                             (ii)  a directors’ report for a financial year; or

                            (iii)  an auditor’s report on a financial report for a financial year; or

                     (b)  the time provided for by:

                              (i)  the regulations if the report is any other section 333-5 report; or

                             (ii)  the determination by the Registrar under section 336-1 or 336-5 if the report is not a section 333-5 report.

348-5   Relodgment if report amended after lodgment

             (1)  If a financial report or a directors’ report is amended after it is lodged with the Registrar, the corporation must:

                     (a)  lodge the amended report with the Registrar within 14 days after the amendment; and

                     (b)  give a copy of the amended report free of charge to any member who asks for it.

Penalty:  10 penalty units.

             (2)  If the amendment is a material one, the corporation must also notify each member as soon as practicable of:

                     (a)  the nature of the amendment; and

                     (b)  the member’s right to obtain a copy of the amended report under subsection (1).

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .