Henley and Australian Securities and Investments Commission

The Administrative Appeals Tribunal reviewed a decision by the Australian Securities and Investments Commission (ASIC) to disqualify Mr. Henley from being an approved Self-Managed Superannuation Fund (SMSF) auditor. The dispute arose after Mr. Henley, a director and member of the Jellner Pty Ltd Superannuation Fund, provided false information on two occasions regarding the audit of his own SMSF. Initially, the fund's annual return for the 2020-21 income year falsely stated that the audit was completed by Mr. Henry Cooper. Subsequently, when Mr. Henley became aware that Mr. Cooper was no longer a registered auditor, he amended the return to list himself as the auditor, despite being prohibited from doing so under relevant legislation and professional standards due to his directorship and membership of the fund.

The Tribunal was required to determine whether Mr. Henley was a fit and proper person to be an approved SMSF auditor, considering the false information provided to the Australian Taxation Office (ATO) and ASIC. This involved assessing the seriousness of his conduct, the potential impact on the integrity of the SMSF auditing regime, and the need for both specific and general deterrence. The Tribunal also had to consider Mr. Henley's explanations and subsequent actions, such as appointing a new auditor, in its assessment of his fitness and propriety.

In reaching its decision, the Tribunal applied the principles of statutory interpretation to section 130F(2) of the *Superannuation Industry (Supervision) Act 1993* (SIS Act), which empowers ASIC to disqualify auditors who are not fit and proper persons. The Tribunal found that Mr. Henley's actions, including knowingly providing false information on two separate occasions and attempting to audit his own SMSF when prohibited, demonstrated a significant lack of integrity and a disregard for his professional obligations. The Tribunal emphasised that honesty and accuracy are fundamental to the role of an SMSF auditor and that misleading regulators undermines public confidence in the superannuation system. The Tribunal considered Mr. Henley's submissions that he made mistakes due to changing laws and the inoperability of the fund, but concluded that these explanations did not mitigate the seriousness of his conduct. The Tribunal also gave weight to the need for general deterrence to uphold the integrity of the SMSF auditing profession.

The Tribunal affirmed ASIC's decision to disqualify Mr. Henley from being an approved SMSF auditor. The disqualification was deemed necessary to maintain the standards and public trust in the SMSF auditing framework.