Corporations Act. Australia
that time, the company is not an authorised audit company; and
(c) the defendant is a director of the company at that time; and
(d) the defendant is aware of the circumstances referred to in paragraphs (a) and (b) at that time.
(3) A person (the defendant) contravenes this subsection if:
(a) at a particular time, a company:
(i) consents to be appointed as auditor of a company or registered scheme; or
(ii) acts as auditor of a company or registered scheme; or
(iii) prepares a report required by this Act to be prepared by a registered company auditor or by an auditor of a company or registered scheme; and
(b) at that time, the company is not an authorised audit company; and
(c) the defendant is a director of the company at that time.
(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)(a) and (b).
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 this subsection, see subsection 13.3(3) of the Criminal Code.
324BD Exception from registration requirement for proprietary company
(1) An individual who is not a registered company auditor may be appointed as auditor of a proprietary company if:
(a) ASIC is satisfied that it is impracticable for a proprietary company to obtain the services of:
(i) an individual who could be appointed as auditor consistently with section 324BA; or
(ii) a firm that could be appointed as auditor consistently with section 324BB; or
(iii) a company that could be appointed consistently with section 324BC;
because of the place where the company carries on business; and
(b) ASIC is satisfied that the individual is suitably qualified or experienced; and
(c) ASIC approves the individual for the purposes of this Act in relation to the audit of the company’s financial reports.
The appointment is subject to such terms and conditions as are specified in the approval under paragraph (c).
(2) If an individual is appointed in accordance with subsection (1):
(a) the individual is taken to be a registered company auditor in relation to the auditing of any of the company’s financial reports; and
(b) the provisions of this Act apply, with the necessary modifications, in relation to the individual accordingly.
Paragraph (a) has effect subject to the terms and conditions of the approval under subsection (1).
(3) If an individual approved by ASIC under subsection (1) is acting as auditor of a company, ASIC may at any time, by notice in writing given to the company:
(a) amend, revoke or vary the terms and conditions of its approval; or
(b) terminate the appointment of that individual as auditor of the company.
(4) A notice under subsection (3) terminating the appointment of an individual as auditor of a company takes effect as if, on the date on which the notice is received by the company, the company had received from the individual notice of the individual’s resignation as auditor taking effect from that date.
324BE Exception from registration requirement — reviewing financial reports of companies limited by guarantee
(1) An individual is taken to be a registered company auditor for the purposes of a review of a financial report of a company limited by guarantee if the individual:
(a) is a member of a professional accounting body; and
(b) has a designation, in respect of that membership, prescribed by the regulations for the purposes of this paragraph.
(2) The provisions of this Act apply, with the necessary modifications, in relation to the individual accordingly.
Division 3 — Auditor independence
Subdivision A — General requirement
324CA General requirement for auditor independence — auditors
Contravention by individual auditor or audit company
(1) An individual auditor or audit company contravenes this subsection if:
(a) the individual auditor or audit company engages in audit activity in relation to an audited body at a particular time; and
(b) a conflict of interest situation exists in relation to the audited body at that time; and
(c) at that time:
(i) in the case of an individual auditor — the individual auditor is aware that the conflict of interest situation exists; or
(ii) in the case of an audit company — the audit company is aware that the conflict of interest situation exists; and
(d) the individual auditor or audit company does not, as soon as possible after the individual auditor or the audit company becomes aware that the conflict of interest situation exists, take all reasonable steps to ensure that the conflict of interest situation ceases to exist.
Note: For conflict of interest situation, see section 324CD.
Individual auditor or audit company to notify ASIC
(1A) An individual auditor or audit company contravenes this subsection if:
(a) the individual auditor or audit company is the auditor of an audited body; and
(b) a conflict of interest situation exists in relation to the audited body while the individual auditor or audit company is the auditor of the audited body; and
(c) on a particular day (the start day):
(i) in the case of an individual auditor — the individual auditor becomes aware that the conflict of interest situation exists; or
(ii) in the case of an audit company — the audit company becomes aware that the conflict of interest situation exists; and
(d) at the end of the period of 7 days from the start day:
(i) the conflict of interest situation remains in existence; and
(ii) the individual auditor or audit company has not informed ASIC in writing that the conflict of interest situation exists.
Note 1: For conflict of interest situation, see section 324CD.
Note 2: If the audited body is a public company or a registered scheme and the notice under this subsection is not followed up by a notice under subsection 327B(2A) or (2C) (public company) or 331AAA(2A) or (2C) (registered scheme) within the period of 21 days (or a longer period that has been approved by ASIC) from the day the notice under this subsection is given, the audit appointment will be terminated at the end of that period.