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Corporations Bill 2001

Part 9.2 Registration of auditors and liquidators

Division 1 Interpretation

1276   Definitions

                   In this Part, unless the contrary intention appears:

body corporate includes a Part 5.7 body.

decision , in relation to the Board, means, in Division 3, a decision of the Board under that Division and includes a refusal to exercise a power under section 1292.

registered means registered under Division 2.



 

Division 2 Registration

1279   Application for registration as auditor or liquidator

             (1)  A natural person may make an application to ASIC:

                     (a)  for registration as an auditor; or

                     (b)  for registration as a liquidator; or

                     (c)  for registration as a liquidator of a specified body corporate, being a body corporate that is to be wound up under this Act.

             (2)  An application under this section must be made in writing as prescribed and must contain such information as is prescribed.

1280   Registration of auditors

             (2)  Subject to this section, where an application for registration as an auditor is made under section 1279, ASIC must grant the application and register the applicant as an auditor if:

                     (a)  the applicant:

                              (i)  is a member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or any other prescribed body; or

                             (ii)  holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to ASIC to represent a course of study in accountancy (including auditing) of not less than 3 years duration and in commercial law (including company law) of not less than 2 years duration; or

                            (iii)  has other qualifications and experience that, in the opinion of ASIC, are equivalent to the qualifications mentioned in subparagraph (i) or (ii); and

                     (b)  ASIC is satisfied that the applicant has had such practical experience in auditing as is prescribed; and

                     (c)  ASIC is satisfied that the applicant is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor;

but otherwise ASIC must refuse the application.

             (3)  ASIC must not register as an auditor a person who is disqualified from managing corporations under Part 2D.6.

             (4)  Subject to subsection (8), ASIC may refuse to register as an auditor a person who is not resident in Australia.

             (5)  Where ASIC grants an application by a person for registration as an auditor, ASIC must cause to be issued to the person a certificate by ASIC stating that the person has been registered as an auditor and specifying the day on which the application was granted.

             (7)  A registration under this section is taken to have taken effect at the beginning of the day specified in the certificate as the day on which the application for registration was granted and remains in force until:

                     (a)  the registration is cancelled by ASIC or the Board; or

                     (b)  the person who is registered dies.

             (8)  ASIC must not refuse to register a person as an auditor unless ASIC has given the person an opportunity to appear at a hearing before ASIC and to make submissions and give evidence to ASIC in relation to the matter.

             (9)  Where ASIC refuses an application by a person for registration as an auditor, ASIC must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it.

1281   Auditor-General taken to be registered as auditor

                   A person who holds office as, or is for the time being exercising the powers and performing the duties of:

                     (a)  the Auditor-General; or

                     (b)  the Auditor-General of a State or Territory in this jurisdiction;

is taken, despite any other provision of this Part, to be registered as an auditor.

1282   Registration of liquidators

             (2)  Subject to this section, where an application for registration as a liquidator is made under section 1279, ASIC must grant the application if:

                     (a)  the applicant:

                              (i)  is a member of The Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or any other prescribed body; or

                             (ii)  holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to ASIC to represent a course of study in accountancy of not less than 3 years duration and in commercial law (including company law) of not less than 2 years duration; or

                            (iii)  has other qualifications and experience that, in the opinion of ASIC, are equivalent to the qualifications mentioned in subparagraph (i) or (ii); and

                     (b)  ASIC is satisfied as to the experience of the applicant in connection with the winding up of bodies corporate; and

                     (c)  ASIC is satisfied that the applicant is capable of performing the duties of a liquidator and is otherwise a fit and proper person to be registered as a liquidator;

but otherwise ASIC must refuse the application.

             (3)  Where an application for registration as a liquidator of a specified body corporate is made under section 1279, ASIC must grant the application and register the applicant as a liquidator of that body if ASIC is satisfied that the applicant has sufficient experience and ability, and is a fit and proper person, to act as liquidator of the body, having regard to the nature of the property or business of the body and the interests of its creditors and contributories, but otherwise ASIC must refuse the application.

             (4)  ASIC must not register as a liquidator, or as a liquidator of a specified body corporate, a person who is disqualified from managing corporations under Part 2D.6.

             (5)  Subject to subsection (10), ASIC may refuse to register as a liquidator or as a liquidator of a specified body corporate a person who is not resident in Australia.

             (6)  Where:

                     (a)  ASIC grants an application by a person for registration as a liquidator or as a liquidator of a specified body corporate; and

                     (b)  the person has complied with the requirements of section 1284;

ASIC must cause to be issued to the person a certificate by ASIC:

                     (c)  stating that the person has been registered as a liquidator or as a liquidator of a specified body corporate; and

                     (d)  specifying a day as the day of the beginning of the registration, being:

                              (i)  the day on which ASIC granted the application; or

                             (ii)  the day on which the person complied with the requirements of section 1284;

                            whichever was the later; and

                     (e)  in the case of a person who is registered under subsection (3) as a liquidator of a specified body corporate—setting out the name of that body.

             (8)  The registration of a person as a liquidator under subsection (2) comes into force at the beginning of the day specified in the certificate as the day of the beginning of the registration and remains in force until:

                     (a)  the registration is cancelled by ASIC or by the Board; or

                     (b)  the person dies.

             (9)  The registration of a person as a liquidator of a specified body corporate under subsection (3) comes into force at the beginning of the day specified in the certificate as the day of the beginning of the registration and remains in force until:

                     (a)  the registration is cancelled by ASIC or by the Board; or

                     (b)  the person dies; or

                     (c)  the body corporate is dissolved or deregistered.

           (10)  ASIC must not refuse to register a person as a liquidator, or as a liquidator of a specified body corporate, unless ASIC has given the person an opportunity to appear at a hearing before ASIC and to make submissions and give evidence to ASIC in relation to the matter.

           (11)  Where ASIC refuses an application by a person for registration as a liquidator, or as a liquidator of a specified body corporate, ASIC must, not later than 14 days after the decision, give to the person notice in writing setting out the decision and the reasons for it.

1283   Registration of official liquidators

             (1)  ASIC may register as an official liquidator a natural person who is a registered liquidator.

             (2)  A person who is registered as an official liquidator is entitled, upon request, to be issued with a certificate of his or her registration.

             (3)  ASIC may register under subsection (1) as official liquidators as many registered liquidators as it thinks fit.

1284   Security to be given by liquidators

             (1)  Where ASIC grants an application by a person for registration as a liquidator or as a liquidator of a specified body corporate, the person must lodge and maintain with ASIC a security for the due performance of his or her duties as such a liquidator in such form and for such amount as is, from time to time, determined by ASIC in relation to that liquidator and with such surety or sureties (if any) as ASIC, from time to time, requires.

             (2)  Where a security is lodged in accordance with subsection (1), the security may be applied by ASIC in such circumstances, for such purposes and in such manner as is prescribed.

             (3)  The regulations may make provision in relation to:

                     (a)  the discharge in whole or part by ASIC of securities lodged under this section; and

                     (b)  the release by ASIC of sureties referred to in subsection (1) from all or any of their obligations as such sureties.

1285   Register of Auditors

             (1)  ASIC must cause a Register of Auditors to be kept for the purposes of this Act and must cause to be entered in the Register in relation to a person who is registered as an auditor:

                     (a)  the name of the person; and

                     (b)  the day on which the application by that person for registration as an auditor was granted; and

                     (c)  the address of the principal place where the person practises as an auditor and the address of the other places (if any) at which he or she so practises; and

                     (d)  if the person practises as an auditor as a member of a firm or under a name or style other than his or her own name—the name of that firm or the name or style under which he or she so practises; and

                     (e)  particulars of any suspension of the person’s registration, under Division 2, as an auditor and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c);

and may cause to be entered in the Register in relation to a person who is registered as an auditor such other particulars as ASIC considers appropriate.

             (2)  Where a person ceases to be registered as an auditor, ASIC must cause to be removed from the Register of Auditors the name of the person and any other particulars entered in the Register in relation to that person.

             (3)  A person may inspect and make copies of, or take extracts from, the Register of Auditors.

1286   Registers of Liquidators and Official Liquidators

             (1)  ASIC must cause a Register of Liquidators to be kept for the purposes of this Act and must cause to be entered in the Register:

                     (a)  in relation to a person who is registered as a liquidator:

                              (i)  the name of the person; and

                             (ii)  the day of the beginning of the registration of that person as a liquidator; and

                            (iii)  the address of the principal place where the person practises as a liquidator and the addresses of the other places (if any) at which he or she so practises; and

                            (iv)  if the person practises as a liquidator as a member of a firm or under a name or style other than his or her own name—the name of that firm or the name or style under which he or she so practises; and

                             (v)  particulars of any suspension of the registration of the person as a liquidator or as a liquidator of a specified body corporate, and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c); and

                     (b)  in relation to a person who is registered as a liquidator of a specified body corporate:

                              (i)  the name of the person; and

                             (ii)  the name of the body corporate; and

                            (iii)  the day of commencement of the registration of the person as a liquidator of the body corporate; and

                            (iv)  the address of the principal place where the person proposes to perform his or her functions as the liquidator of the body corporate; and

                             (v)  if the person practises a profession as a member of a firm or under a name or style other than his or her own name, being a profession by virtue of which he or she is qualified to be appointed as a liquidator of the body corporate—the name and address of that firm or the name or style under which he or she so practises; and

                            (vi)  particulars of any suspension or deemed suspension of the registration of the person as a liquidator of that body corporate or as a liquidator of a specified body corporate, and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c);

and may cause to be entered in the Register in relation to a person who is registered as a liquidator, or as a liquidator of a specified body corporate, such other particulars as ASIC considers appropriate.

             (2)  ASIC must cause a Register of Official Liquidators to be kept for the purposes of this Act and must cause to be entered in the Register the name, and such other particulars as ASIC considers appropriate, of any person registered as an official liquidator.

             (3)  Where a person ceases to be registered as a liquidator, as a liquidator of a specified body corporate or as an official liquidator, ASIC must cause to be removed from the Register of Liquidators or from the Register of Official Liquidators, as the case may be, the name of the person and any other particulars entered in that Register in relation to that person.

             (4)  A person may inspect and make copies of, or take extracts from, the Register of Liquidators or the Register of Official Liquidators.

1287   Notification of certain matters

             (1)  Where:

                     (a)  a person who is a registered company auditor ceases to practise as an auditor; or

                     (b)  a change occurs in any matter particulars of which are required by paragraph 1285(1)(a), (c) or (d) to be entered in the Register of Auditors in relation to a person who is a registered company auditor;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (2)  Where:

                     (a)  a person who is a registered liquidator ceases to practise as a liquidator; or

                     (b)  a change occurs in any matter particulars of which are required by subparagraph 1286(1)(a)(i), (iii) or (iv) to be entered in the Register of Liquidators in relation to a person who is a registered liquidator;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (3)  Where:

                     (a)  a person who is registered as a liquidator of a specified body corporate ceases to act as a liquidator in the winding up of that body; or

                     (b)  a change occurs in any matter particulars of which are required by subparagraph 1286(1)(b)(i), (ii), (iv) or (v) to be entered in the Register of Liquidators in relation to a person who is registered as a liquidator of a specified body corporate;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (4)  If a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporate body is disqualified from managing corporations under Part 2D.6, then, within a period of 3 days after they become disqualified, they must lodge written particulars in the prescribed form of the circumstances because of which they become disqualified.

1288   Triennial statements by registered auditors and liquidators

             (3)  A person who is a registered company auditor or registered liquidator must, within one month after the end of:

                     (a)  the period of 3 years beginning on the day on which the person’s registration begins; and

                     (b)  each subsequent period of 3 years;

lodge a statement in respect of that period of 3 years setting out such information as is prescribed.

             (4)  ASIC may, on the application of a registered company auditor or a registered liquidator made before the end of the period for lodging a statement under subsection (3), extend, or further extend, that period.

             (5)  ASIC may, by notice in writing served on the person, require a person who is registered as a liquidator of a specified body corporate to lodge, within a period specified in the notice, a statement in respect of a period specified in the notice setting out such information as is prescribed.

1289   Auditors and other persons to enjoy qualified privilege in certain circumstances

             (1)  An auditor has qualified privilege in respect of:

                     (a)  any statement that he or she makes, orally or in writing, in the course of his or her duties as auditor; or

                     (b)  any statement that he or she makes, orally or in writing, on a directors’ report under section 298 or 306 or on any statement, report or other document that is taken, for any purpose, to be part of the first-mentioned report; or

                     (c)  notifying ASIC of a matter under section 311.

             (2)  A person has qualified privilege in respect of:

                     (a)  the publishing of any document prepared by an auditor in the course of his or her duties and required by or under this Act to be lodged, whether or not the document has been lodged; or

                     (b)  the publishing of any statement made by an auditor as mentioned in subsection (1).



 

Division 3 Cancellation or suspension of registration

1290   Cancellation at request of registered person

             (1)  Where a person who is registered as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator requests ASIC to cancel his or her registration, ASIC may cancel the registration of that person as an auditor, as a liquidator, as a liquidator of that body corporate or as an official liquidator, as the case may be.

             (2)  A decision of ASIC under subsection (1) to cancel the registration of a person as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator comes into effect as soon as practicable upon the making of the decision.

1291   Official liquidators

             (1)  ASIC may, at any time, cancel, or suspend for a specified period, the registration as an official liquidator of a person who is so registered.

             (2)  ASIC may, at any time, require a person registered as an official liquidator to give an undertaking to refrain from engaging in specified conduct except on specified conditions.

             (3)  Where ASIC decides to exercise a power under subsection (1) or (2), ASIC must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it, but the validity of the decision is not affected by failure of ASIC to do so.

             (4)  A decision of ASIC under subsection (1) to cancel or suspend the registration of a person as an official liquidator comes into effect at the end of the day on which there is given to the person a notice of the decision, being a notice of the kind referred to in subsection (3).

1292   Powers of Board in relation to auditors and liquidators

             (1)  The Board may, if it is satisfied on an application by ASIC for a person who is registered as an auditor to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                              (i)  contravened section 1288; or

                             (ii)  ceased to be resident in Australia; or

                     (d)  the person has failed, whether in or outside this jurisdiction, to carry out or perform adequately and properly:

                              (i)  the duties of an auditor; or

                             (ii)  any duties or functions required by an Australian law to be carried out or performed by a registered company auditor;

                            or is otherwise not a fit and proper person to remain registered as an auditor;

by order, cancel, or suspend for a specified period, the registration of the person as an auditor.

             (2)  The Board may, if it is satisfied on an application by ASIC for a person who is registered as a liquidator to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                              (i)  contravened section 1288; or

                             (ii)  ceased to be resident in Australia; or

                     (d)  that the person has failed, whether in or outside this jurisdiction, to carry out or perform adequately and properly:

                              (i)  the duties of a liquidator; or

                             (ii)  any duties or functions required by an Australian law to be carried out or performed by a registered liquidator;

                            or is otherwise not a fit and proper person to remain registered as a liquidator;

by order, cancel, or suspend for a specified period, the registration of the person as a liquidator.

             (3)  The Board may, if it is satisfied on an application by ASIC for a person who is registered as a liquidator of a specified body corporate to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                              (i)  contravened subsection 1288(5); or

                             (ii)  ceased to be resident in Australia; or

                     (d)  that the person has failed, whether in or outside this jurisdiction, to carry out adequately and properly the duties of a liquidator in respect of the winding up of that body corporate or is otherwise not a fit and proper person to remain registered as a liquidator of that body corporate;

by order, cancel, or suspend for a specified period, the registration of the person as a liquidator of that body corporate.

             (4)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as an auditor to be dealt with under this section; and

                     (b)  the person is also registered as a liquidator or as a liquidator of a specified body corporate;

the Board may, in addition to making an order under subsection (1), if it is satisfied as to any of the matters specified in paragraph (2)(a) or (d) or (3)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as a liquidator or as a liquidator of that body, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (2) or (3), as the case may be.

             (5)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as a liquidator to be dealt with under this section; and

                     (b)  the person is also registered as an auditor or as a liquidator of a specified body corporate;

the Board may, in addition to making an order under subsection (2), if it is satisfied as to any of the matters specified in paragraph (1)(a) or (d) or (3)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator of that body, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (1) or (3), as the case may be.

             (6)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as a liquidator of a specified body corporate to be dealt with under this section; and

                     (b)  the person is also registered as an auditor or as a liquidator;

the Board may, in addition to making an order under subsection (3), if it is satisfied as to any of the matters specified in paragraph (1)(a) or (d) or (2)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (1) or (2), as the case may be.

             (7)  The Board must, if it is satisfied on an application by ASIC for a prescribed person to be dealt with under this section:

                     (a)  that the person is disqualified from managing corporations under Part 2D.6; or

                     (b)  that the person is incapable, because of mental infirmity, of managing his or her affairs;

by order, cancel each prescribed registration of the person.

             (8)  In subsection (7) and in this subsection:

prescribed person means a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate.

prescribed registration , in relation to a prescribed person, means a registration of the person as an auditor, as a liquidator or as the liquidator of a specified body corporate.

             (9)  Where, on an application by ASIC for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate to be dealt with under this section, the Board is satisfied that the person has failed to carry out or perform adequately and properly any of the duties or functions mentioned in paragraph (1)(d), (2)(d) or (3)(d), as the case may be, or is otherwise not a fit and proper person to remain registered as an auditor, liquidator or liquidator of that body, as the case may be, the Board may deal with the person in one or more of the following ways:

                     (a)  by admonishing or reprimanding the person;

                     (b)  by requiring the person to give an undertaking to engage in, or to refrain from engaging in, specified conduct;

                     (c)  by requiring the person to give an undertaking to refrain from engaging in specified conduct except on specified conditions;

and, if a person fails to give an undertaking when required to do so under paragraph (b) or (c), or contravenes an undertaking given pursuant to a requirement under that paragraph, the Board may, by order, cancel, or suspend for a specified period, the registration of the person as an auditor, as a liquidator or as a liquidator of a specified body corporate, as the case may be.

           (10)  Where, on an application by ASIC for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate to be dealt with under this section, the Board is empowered to deal with the person as mentioned in subsection (9), the Board may so deal with the person:

                     (a)  if the Board is required to make an order under subsection (6) on the application—in addition to making such an order; or

                     (b)  otherwise—in addition to, or instead of, cancelling or suspending the registration of the person as an auditor, as a liquidator or as a liquidator of that body, as the case may be.

           (11)  The Board may exercise any of its powers under this Division in relation to a person as a result of conduct engaged in by the person whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct.

           (12)  This section has effect subject to section 1294.

1294   Board to give opportunity for hearing etc.

             (1)  The Board must not:

                     (a)  cancel or suspend the registration of a person as an auditor, as a liquidator or as a liquidator of a specified body corporate; or

                     (b)  deal with a person in any of the ways mentioned in subsection 1292(9);

unless the Board has given the person an opportunity to appear at a hearing held by the Board and to make submissions to, and adduce evidence before, the Board in relation to the matter.

             (2)  Where subsection (1) requires the Board to give a person an opportunity to appear at a hearing and to make submissions to, and bring evidence before, the Board in relation to a matter, the Board must give ASIC an opportunity to appear at the hearing and to make submissions to, and bring evidence before, the Board in relation to the matter.

1295   Board may remove suspension

             (1)  Where a registration of a person is suspended, the Board may, on an application by the person or of its own motion, by order, terminate the suspension.

             (2)  An order under subsection (1) has effect accordingly.

1296   Notice of Board’s decision

             (1)  Where the Board decides to exercise any of its powers under section 1292 in relation to a person, or decides that it is required to make an order under subsection 1292(7) in relation to a person, the Board must, within 14 days after the decision:

                     (a)  give to the person a notice in writing setting out the decision and the reasons for it; and

                     (b)  lodge a copy of the notice referred to in paragraph (a); and

                     (c)  cause to be published in the Gazette a notice in writing setting out the decision.

             (2)  Where the Board decides to refuse to exercise its powers under section 1292 in relation to a person, or decides that it is not required to make an order under subsection 1292(7) in relation to a person, the Board must, within 14 days after the decision:

                     (a)  give to the person a notice in writing setting out the decision and the reasons for it; and

                     (b)  lodge a copy of the notice referred to in paragraph (a).

             (3)  The validity of a decision of the Board is not affected by failure of the Board to comply with subsection (1) or (2), as the case requires, in relation to the decision.

1297   Time when Board’s decision comes into effect

             (1)  Subject to subsection (2) and to sections 41 and 44A of the Administrative Appeals Tribunal Act 1975 , an order made by the Board cancelling or suspending the registration of a person as an auditor, as a liquidator or as a liquidator of a specified body corporate comes into effect at the end of the day on which there is given to the person a notice of the decision pursuant to which the order is made, being a notice of the kind referred to in paragraph 1296(1)(a).

             (2)  Where the Board makes an order of a kind referred to in subsection (1), it may, in order to enable an application to be made to the Tribunal for review of the decision to make the order, determine that the order is not to come into effect until a specified time or until the happening of a specified event.

             (3)  The Board may at any time vary or revoke a determination made under subsection (2), including such a determination that has been varied at least once before.

             (4)  A determination in force under subsection (2) has effect accordingly.

1298   Effect of suspension

                   A person whose registration as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator is suspended is, except for the purposes of subsections 1285(2) and 1286(3), section 1287 (other than paragraphs 1287(1)(a), (2)(a) and (3)(a)), section 1288 and this Division, taken not to be registered as an auditor, liquidator, liquidator of that body corporate or official liquidator, as the case may be, so long as the registration is suspended.