Resignation or removal of an auditor of an Australian financial services licensee
Resignation
Section 990G of the Corporations Act 2001 (the Corporations Act) relates to the resignation of auditors for natural persons, partnerships, non-corporate trustees and proprietary companies which hold an Australian financial services (AFS) licence.
Where the AFS licensee is a public company, section 990G does not apply. Refer to Resignation of an auditor under the Corporations Act 2001 for details on the resignation of an auditor if the AFS licensee is a public company.
The resignation of an auditor can only take effect after:
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a written application has been made to us by the auditor, requesting our consent to the resignation (Form FS08 Application for consent to resign as an auditor of an Australian financial services licensee). It is recommended that the application be lodged at least three weeks before the date the resignation is to take effect
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the auditor has notified the financial services licensee that an application has been made, and
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we have granted our consent to the resignation. As we do not have the power to backdate consent, the resignation can only take effect on, or after, the day that consent is granted.
In order for us to give proper consideration to an application, follow these steps:
Step 1
Complete Form FS08, ensuring that it includes:
- specific reason why the auditor wishes to resign;
- details of the status of the audit (i.e. partially completed; not yet started); and
- the date when the resignation is to take effect.
Step 2
Ensure that we have been notified of any contravention of the Act in accordance with s990K.
Step 3
Attach written confirmation from the proposed replacement auditor stating that he or she is prepared to accept the appointment, subject to our consent to the resignation being granted.
Step 4
For a financial services licensee which is a proprietary company, attach a signed copy of a directors' or members' resolution appointing a replacement auditor to the licensee, subject to ASIC's consent to the resignation being granted.
When an application is made do not assume that we will automatically grant consent. If we do not consent to the resignation, the auditor will continue to hold office as the financial services licensee's auditor.
Once a decision has been made, we will advise both the auditor and the financial services licensee in writing of the outcome of the application.
If the application is successful, the auditor is then required to give written notice of the resignation to the financial services licensee. It is important to be aware that this notice cannot be given to the financial services licensee until after our consent has been received.
In addition to following the procedure to resign as auditor of the financial services licensee, an auditor will also need to resign in accordance with s329 if they were appointed to audit the company's financial report. This applies even if these audits are conducted by the same person/firm.
Under s329, the auditor of a proprietary company can resign by simply giving the company notice of their resignation. The company is then required to lodge a
Form 315 Notification of resignation, removal or cessation of auditor within 14 days after receiving the notice of resignation from the auditor.
Removal
Section 990F of the Corporations Act relates to the removal of auditors for natural persons, partnerships, non-corporate trustees and proprietary companies which hold an Australian financial services (AFS) licence.
Where the AFS licensee is a public company, section 990F does not apply. Refer to Removal of an auditor under the Corporations Act 2001 for details on the removal of an auditor if the AFS licensee is a public company. Generally the financial services licensee must apply for our consent before it is able to remove the person or firm as its auditor. This application must be lodged by the financial services licensee and should be lodged at least three weeks before the date the removal is to take effect.
While the procedure to be followed is similar to that of a resignation, the financial services licensee is not required under the Act to advise the auditor in writing that the application is being made. However, we expect financial services licensees to do this and will not grant consent to a removal unless the auditor has been put on notice, or reasonable attempts have been made to notify the auditor of the application.
The financial services licensee will need to lodge Form FS07 Application for consent to remove an auditor of an Australian financial services licensee ensuring that it includes:
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a specific reason why the financial services licensee wants to remove the auditor;
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details of the status of the audit (i.e. partially completed; not yet started); and
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written confirmation from the proposed replacement auditor stating that they are prepared to accept the appointment, subject to our consent to the removal being granted.
For a financial services licensee that is a proprietary company, attach a signed copy of a directors' or members' resolution appointing a replacement auditor to the financial services licensee, subject to our consent to the removal being granted.
The written confirmation for the proposed replacement auditor stating that he or she is prepared to accept the appointment and signed copy of a directors' or members' resolution appointing a replacement auditor to the AFS licensee, subject to our consent to the removal being granted.
The auditor will also need to be removed in accordance with s329 if the auditor was appointed to audit the company's financial report. Refer to Removal of an auditor under the Corporations Act 2001 for details.
In addition to resignation or removal, it is our view that an auditor appointed under s990B automatically ceases to hold office if they become ineligible to act as the licensee's auditor. In these circumstances our consent is not required. The company is required to lodge a Form FS09 Notification of cessation of an auditor of an Australian financial services licensee as soon as practicable.
Once the position of auditor becomes vacant, a new auditor must be appointed within 14 days. The financial services licensee is then required to lodge a notice of appointment (as previously explained) within 14 days of this appointment.