FUTURES INDUSTRY ACT 1986 No. 72 of 1986 - SECT 92 Appointment of auditor by futures broker
FUTURES INDUSTRY ACT 1986 No. 72 of 1986 - SECT 92
Appointment of auditor by futures broker92. (1) Within one month after becoming the holder of a futures broker's licence, a futures broker (other than a banking corporation) shall appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, as auditor or auditors to audit the broker's accounts. (2) Subject to this section, a person shall not- (a) consent to be appointed as auditor of a futures broker; (b) act as auditor of a futures broker; or (c) prepare a report required by this Act to be prepared by an auditor of a futures broker, if- (d) the person is not a registered company auditor; (e) the person, or a body corporate in which the person is a substantial shareholder within the meaning of Division 4 of Part IV of the Companies Act 1981 , or the provisions of a law of a participating State or participating Territory that correspond with that Division, is indebted in an amount exceeding $5,000 to the futures broker or, if the futures broker is a body corporate, to a related body corporate; or (f) the person is- (i) in the case of a futures broker who is a natural person-a partner or employee of the broker; or (ii) in the case of a futures broker that is a body corporate- (A) an officer of the body corporate; (B) a partner, employer or employee of an officer of the body corporate; or (C) a partner or employee of an employee of an officer of the body corporate. (3) Subject to this section, a firm shall not- (a) consent to be appointed as an auditor of a futures broker; (b) act as auditor of a futures broker; or (c) prepare a report required by this Act to be prepared by an auditor of a futures broker, unless- (d) at least one member of the firm is a registered company auditor who is ordinarily resident in a State or Territory; (e) where the business name under which the firm is carrying on business is not registered under the Business Names Ordinance 1963-there has been lodged with the Commission a return in the prescribed form showing, in relation to each member of the firm, the member's full name and address as at the time when the firm so consents, acts or prepares a report; (f) no member of the firm, and no body corporate in which any member of the firm is a substantial shareholder within the meaning of Division 4 of Part IV of the Companies Act 1981, or the provisions of a law of a participating State or participating Territory that correspond with that Division, is indebted in an amount exceeding $5,000 to the futures broker or, where the futures broker is a body corporate, to a related body corporate; (g) no member of the firm is- (i) in the case of a futures broker who is a natural person-a partner or employee of the broker; or (ii) in the case of a futures broker that is a body corporate- (A) an officer of the body corporate; (B) a partner, employer or employee of an officer of the body corporate; or (C) a partner or employee of an employee of an officer of the body corporate; and (h) in the case of a futures broker that is a body corporate, no officer of the body corporate receives any remuneration from the firm for acting as a consultant to it on accounting or auditing matters. (4) A reference in sub-section (2) or (3) to indebtedness to a body corporate does not, in relation to indebtedness of a natural person, include a reference to indebtedness of that person to a body corporate that is a prescribed corporation for the purposes of Division 4 of Part VI of the Companies Act 1981 where- (a) the indebtedness arose as a result of a loan made to that person by the body corporate in the ordinary course of its ordinary business; and (b) the amount of that loan was used by that person to pay the whole or part of the purchase price of premises that are used by that person as the person's principal place of residence. (5) For the purposes of sub-sections (2) and (3), a person shall be deemed to be an officer of a body corporate if- (a) the person is an officer of a related body corporate; or (b) except where the Commission, if it thinks fit in the circumstances of the case, directs that this paragraph shall not apply in relation to the person-the person has, at any time within the immediately preceding period of 12 months, been an officer or promoter of the body corporate or of a related body corporate. (6) For the purposes of this section, a person shall not be taken to be an officer of a body corporate by reason only of being or having been the liquidator of the body corporate or of a related body corporate. (7) For the purposes of this section, a person shall not be taken to be an officer of a body corporate by reason only of having been appointed as an auditor of that body corporate or of a related body corporate or, for any purpose relating to taxation, a public officer of a body corporate or by reason only of being or having been authorised to accept on behalf of the body corporate or a related body corporate service of process or any notices required to be served on the body corporate or related body corporate. (8) The appointment of a firm as auditor of a futures broker shall be deemed to be an appointment of all persons who are members of the firm and are registered company auditors, whether resident in a State or Territory or not, at the date of the appointment. (9) Where a firm that has been appointed as auditor of a futures broker is reconstituted by reason of the death, retirement or withdrawal of a member or members or by reason of the admission of a new member or new members, or both- (a) a person who was deemed under sub-section (8) to be an auditor of the broker and who has so retired or withdrawn from the firm as previously constituted shall be deemed to have resigned as auditor of the company as from the day of the person's retirement or withdrawal but, unless that person was the only member of the firm who was a registered company auditor and, after the retirement or withdrawal of that person, there is no member of the firm who is a registered company auditor, section 93 does not apply to that resignation; (b) a person who is a registered company auditor and who is so admitted to the firm shall be deemed to have been appointed as an auditor of the broker as from the day of admission; and (c) the reconstitution of the firm does not affect the appointment of the continuing members of the firm who are registered company auditors as auditors of the broker, but nothing in this sub-section affects the operation of sub-section (3). (10) Except as provided by sub-section (9), the appointment of the members of a firm as auditors of a futures broker that is deemed by sub-section (8) to have been made by reason of the appointment of the firm as auditor of the broker is not affected by the dissolution of the firm. (11) A report or notice that purports to be made or given by a firm appointed as auditor of a futures broker shall not be taken to be duly made or given unless it is signed, in the firm name and in the name of the member concerned, by a member of the firm who is a registered company auditor. (12) Where a person or firm is appointed as an auditor under sub-section (1) (not being an appointment that is deemed to be made by virtue of sub-section (9)) or under sub-section (16), the futures broker shall, within 14 days after the appointment, lodge with the Commission a notice in writing stating that the broker has made the appointment and specifying the name of the person or firm. (13) Without limiting the generality of section 148, if, in contravention of this section, a firm consents to be appointed, or acts as, an auditor of a futures broker or prepares a report required by this Act to be prepared by an auditor of a futures broker, each member of the firm is guilty of an offence. (14) A person shall not- (a) if the person has been appointed auditor of a futures broker-knowingly disqualify himself or herself while the appointment continues from acting as auditor of the broker; or (b) if the person is a member of a firm that has been appointed auditor of a futures broker-knowingly disqualify the firm while the appointment continues from acting as auditor of the broker. (15) An auditor of a futures broker holds office until death, until removal or resignation from office in accordance with section 93 or until becoming prohibited from acting as auditor by reason of sub-section (2) or (3). (16) Within 14 days after a vacancy occurs in the office of an auditor of a futures broker, if there is no surviving or continuing auditor of the broker, the broker shall appoint a person or persons, a firm or firms or a person or persons and a firm or firms to fill the vacancy. (17) While a vacancy in the office of an auditor continues, the surviving or continuing auditor or auditors (if any) may act. (18) A futures broker shall not appoint a person or firm as auditor of the broker unless that person or firm has, before the appointment, consented by notice in writing given to the broker to act as auditor and has not withdrawn the consent by notice in writing given to the broker. (19) This section does not apply in relation to a body corporate (other than an exempt proprietary company) in relation to which section 280 of the Companies Act 1981, or a provision of a law of a participating State or participating Territory that corresponds with that section, applies. (20) In sub-section (19), "exempt proprietary company" means a body corporate that is an exempt proprietary company within the meaning of the Companies Act 1981 or of the provisions of a law of a participating State or participating Territory that correspond with that Act.