Document ID: chunk:federal_register_of_legislation:C2025C00165:section:16ba:p1
Version: federal_register_of_legislation:C2025C00165
Segment Type: section
Provision Reference: s 16BA (pt 1/3)
Character Range: 222059–224783

16BA  Requirement for auditors to give information about ADIs

Persons to whom requirements apply
 (1) This section applies to a person who is or has been an auditor of a body corporate that is:
 (a) an ADI; or
 (b) an authorised NOHC; or
 (c) a subsidiary of an ADI or an authorised NOHC; or
 (d) if an ADI is a subsidiary of a foreign corporation (whether or not the ADI is itself a foreign ADI):
 (i) another subsidiary (a relevant Australian‑incorporated subsidiary) of the foreign corporation (other than a body mentioned in paragraph (a), (b) or (c)), being a subsidiary that is incorporated in Australia; or
 (ii) another subsidiary (a relevant foreign‑incorporated subsidiary) of the foreign corporation (other than a body mentioned in paragraph (a), (b) or (c)), being a subsidiary that is not incorporated in Australia and carries on business in Australia.

Matters requiring immediate notice
 (2) If the person has reasonable grounds for believing that:
 (a) the body corporate is insolvent or there is a significant risk that the body corporate will become insolvent; or
 (b) an existing or proposed state of affairs may materially prejudice the interests of:
 (i) if the body corporate is an ADI or a subsidiary of an ADI—the depositors of the ADI; or
 (ii) if the body corporate is an authorised NOHC or a subsidiary of an authorised NOHC—the depositors of any ADI that is a subsidiary of the authorised NOHC; or
 (iii) if the body corporate is a relevant Australian‑incorporated subsidiary or a relevant foreign‑incorporated subsidiary of a foreign corporation—the depositors of any ADI that is a subsidiary of the foreign corporation;
the person must immediately notify APRA in writing of the matter.

Offences in relation to matters requiring immediate notice
 (3) A person commits an offence if the person contravenes subsection (2).
Penalty: Imprisonment for 6 months.
 (4) A person commits an offence if the person contravenes subsection (2). This is an offence of strict liability.
Penalty: 60 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code.

Defence if matter already notified
 (5) Subsections (3) and (4) do not apply to a person in relation to a matter referred to in subsection (2) if:
 (a) the person becomes aware of the matter because the person is informed of it by a director or senior manager of the body corporate; and
 (b) the director or senior manager informs the person that the body corporate has notified APRA in writing of the matter; and
 (c) the person has no reason to disbelieve the director or senior manager.
Note: The defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.