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CORPORATIONS ACT 2001 No. 50, 2001 - SECT 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.


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