Corporations Act. Australia

Чтение книги онлайн.

СКАЧАТЬ

      are not admissible in evidence against the person in a criminal proceeding, or any other proceeding for the recovery of a penalty, other than proceedings for an offence based on the information given being false or misleading.

      (1D) If ASIC is given a notice under paragraph (1A)(e), ASIC must, as soon as practicable after the notice is received, give a copy of the notice to the audited body.

      Conflict of interest situation of which another director of audit company aware

      (2) A person contravenes this subsection if:

      (a) an 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 the time; and

      (c) the person is a director of the audit company at that time; and

      (d) at that time, another director of the audit company is aware that the conflict of interest situation exists; and

      (e) the audit company does not, as soon as possible after the director referred to in paragraph (d) 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 1: For conflict of interest situation, see section 324CD.

      Note 2: The company itself will commit an offence based on the contravention of subsection 324AA(1).

      (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), (b), (d) and (e).

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

      Note 2: Subsection (6) provides a defence.

      Conflict of interest situation of which directors of audit company not aware

      (4) A person contravenes this subsection if:

      (a) an 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 the time; and

      (c) the person is a director of the audit company at that time; and

      (d) at that time none of the directors of the audit company is aware that the conflict of interest situation exists; and

      (e) a director of the audit company would have been aware of the existence of the conflict of interest situation if the audit company had in place a quality control system reasonably capable of making the audit company aware of the existence of such a conflict of interest situation.

      Note 1: For conflict of interest situation, see section 324CD.

      Note 2: The company itself will commit an offence based on the contravention of subsection 324AA(2).

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

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

      Note 2: Subsection (6) provides a defence.

      Defence

      (6) A person does not commit an offence because of a contravention of subsection (2) or (4) in relation to audit activity engaged in by an audit company at a particular time if the person has reasonable grounds to believe that the audit company had in place at that time a quality control system that provided reasonable assurance (taking into account the size and nature of the audit practice of the audit company) that the audit company and its employees complied with the requirements of this Subdivision.

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

      Relationship between obligations under this section and other obligations

      (7) The obligations imposed by this section are in addition to, and do not derogate from, any obligation imposed by:

      (a) another provision of this Act; or

      (b) a code of professional conduct.

      Note: Paragraph (a) — see, for example, the specific obligations imposed by Subdivision B.

      324CD Conflict of interest situation

      (1) For the purposes of sections 324CA, 324CB and 324CC, a conflict of interest situation exists in relation to an audited body at a particular time if, because of circumstances that exist at that time:

      (a) the auditor, or a professional member of the audit team, is not capable of exercising objective and impartial judgment in relation to the conduct of the audit of the audited body; or

      (b) a reasonable person, with full knowledge of all relevant facts and circumstances, would conclude that the auditor, or a professional member of the audit team, is not capable of exercising objective and impartial judgment in relation to the conduct of the audit of the audited body.

      (2) Without limiting subsection (1), have regard to circumstances arising from any relationship that exists, has existed, or is likely to exist, between:

      (a) the individual auditor; or

      (b) the audit firm or any current or former member of the firm; or

      (c) the audit company, any current or former director of the audit company or any person currently or formerly involved in the management of the audit company;

      and any of the persons and bodies set out in the following table:

      Relevant relationships

      Item

      If the audited body is…

      have regard to any relationship with…

      1

      a company

      the company; or

      a current or former director of the company; or

      a person currently or formerly involved in the management of the company.

      2

      a disclosing entity

      the entity; or

      a current or former director of the entity; or

      a person currently or formerly involved in the management of the СКАЧАТЬ