The more things change, the more they miss their mark

The draft legislation, like many of the recent changes to superannuation, has come from a recommendation of the Cooper review of superannuation.

One of the review's findings was a perceived problem with the competency of auditors of self-managed funds. Rather than fixing this problem, the draft legislation will tend to entrench it.

Under the current system, self-managed funds are regulated by the Tax Office. The two main requirements set out by the Tax Office for someone to audit an SMSF are that they must be a "fit and proper person", and the audit must be carried out in accordance with the auditing standards laid down by the professional bodies.

At the heart of the draft legislation will be the requirement for SMSF auditors to be registered. For a person to become a registered SMSF auditor they must:

Have completed a tertiary accounting qualification involving at least three years of study that included an audit component or studied auditing after having completed the tertiary study with a professional organisation.

Be a fit and proper person.

Hold appropriate professional indemnity insurance.

Have at least 300 hours of auditing SMSFs in the three years prior to applying for registration.

Have passed a competency test.

Transitional arrangements have also been inserted into the draft legislation that allow current SMSF auditors to apply for registration.

It is these arrangements that don't fix the perceived problem with the competency of auditors. This is because they allow anyone who has been previously auditing SMSFs, no matter how good or bad those audits have been conducted, to apply for SMSF auditor registration.

Belinda Aisbett, SMSF specialist auditor with Super Sphere, said: "The registration for existing auditors is quite low. If you have audited one super fund in the 12 months prior to registration you don't need to satisfy the practical experience requirements, and if you signed off on 20 audits in the 12 months prior to registration you don't need to sit the competency exam."

There is another area where the draft legislation also doesn't improve the current situation. This is the requirement for an SMSF audit to be conducted under the auditing standards. These standards apply equally to the audit of publicly listed companies as they do to SMSFs.

This often means the level of work required to meet the standards for an SMSF creates conflict and extra work for the auditor and extra cost for the trustees of the fund.

These standards also do not specify the critical areas that SMSF auditors should concentrate on, such as accessing super incorrectly or purchasing investments barred by the SIS legislation.

At least the draft legislation will change the rules on when an auditor must sign off on the accounts of an SMSF.

Currently heavy penalties are imposed if the audit is not completed by the due date for lodgement of the fund's tax return. The rules will change so that an auditor must sign off on the audit within 28 days of receiving all of the information.

The Gillard government was given the opportunity to create certainty when it came to the auditing standard for SMSFs. If the draft legislation were an exam, the Gillard government has barely achieved a pass.