ASIC Superannuation (Notice of Administrative Appeals Tribunal Decision—John Gilliland) Instrument 2024/309
I, Craig Angove, delegate of the Australian Securities and Investments Commission, make this notifiable instrument.
Pursuant to subsection 130F(7) of the Superannuation Industry (Supervision) Act 1993 (the Act), attached to this instrument is a copy of a decision made by the Administrative Appeals Tribunal in relation to a disqualification order made by the Australian Securities and Investment Commission under subsection 130F(2) of the Act.
Date 29 April 2024
Craig Angove
Attachment to the ASIC Superannuation (Notice of Administrative Appeals Tribunal Decision–John Gilliland) Instrument 2024/309
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/5931
TAXATION AND COMMERCIAL DIVISION )
Re: John Gilliland
Applicant
And: Australian Securities & Investments Commission
Respondent
TRIBUNAL: Deputy President Bernard J McCabe
DATE: 25 March 2024
PLACE: Brisbane
In accordance with subsection 42C(1) of the Administrative Appeals Tribunal Act 1975:
1. the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to the parties; and
2. the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
3. the Tribunal is satisfied that a decision in those terms is within the powers of the Tribunal and is appropriate to make.
WHEREAS:
A. The Applicant accepts the Self-Managed Superannuation Fund audits of Fiscal Consultants Superannuation Fund for the financial years 2013, 2014 and 2015 were in breach of the Accounting Professional & Ethical Standards Code (APES 110).
B. The Applicant abandons the submissions dated and filed with the Tribunal on 15 March 2024.
C. The Applicant accepts he breached the relevant provisions contained in APES 110 as alleged and agrees not to undertake any further audits.
D. Upon the Tribunal making the orders set out below the Applicant will immediately apply to voluntarily resign his registration a SMSF Auditor.
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders
I. The reviewable disqualification decision made by the Respondent on 15 August 2018 that disqualified the Applicant from being an approved SMSF Auditor be varied so that the Applicant not disqualified but is instead suspended for the period of five (5) years effective from 15 August 2018.
.................................[SGD].................................
Bernard J McCabe Deputy President
Overview
The ASIC Superannuation (Notice of Administrative Appeals Tribunal Decision—John Gilliland) Instrument 2024/309 was enacted in 2024 by Craig Angove, a delegate of the Australian Securities and Investments Commission (ASIC). This notifiable instrument aims to communicate a decision made by the Administrative Appeals Tribunal regarding a disqualification order imposed by ASIC under the Superannuation Industry (Supervision) Act 1993. The primary purpose of this instrument is to ensure transparency and adherence to the legislative framework governing the superannuation industry, particularly in cases where ASIC exercises its powers to disqualify individuals from being approved SMSF auditors. The enactment aligns with the policy objective of maintaining high standards and ethical practices within the superannuation sector, providing a formal notification mechanism for significant tribunal decisions that impact the industry.
This instrument underscores the commitment to due process and accountability, facilitating a clear communication pathway between ASIC, the tribunal, and the affected parties. By mandating the disclosure of the tribunal’s decision, it supports the integrity of the administrative process and ensures that stakeholders are adequately informed about outcomes that can have substantial implications for their professional activities. The involvement of both ASIC and the Administrative Appeals Tribunal highlights the collaborative approach taken to resolve disputes and enforce regulatory standards within the superannuation industry.
Scope and Application
The ASIC Superannuation (Notice of Administrative Appeals Tribunal Decision—John Gilliland) Instrument 2024/309 pertains to the administrative and regulatory framework governing the supervision of the superannuation industry in Australia. It applies specifically to John Gilliland, an individual who was disqualified by the Australian Securities and Investments Commission (ASIC) from being an approved Self-Managed Superannuation Fund (SMSF) Auditor. This instrument arises under the Superannuation Industry (Supervision) Act 1993 and serves to notify the public of the Administrative Appeals Tribunal’s decision in relation to a disqualification order made by ASIC. The decision, made on 25 March 2024, modifies the disqualification to a suspension for five years, effective from 15 August 2018. The instrument is a Commonwealth matter and its reach is limited to the specific case of John Gilliland, with no broader applicability to other entities or industries. This instrument does not create any new laws or change existing legislative provisions but rather reports on a specific tribunal decision, ensuring compliance and transparency within the regulatory framework.
Key Provisions
The key provision of the ASIC Superannuation (Notice of Administrative Appeals Tribunal Decision—John Gilliland) Instrument 2024/309I is the attachment of the decision made by the Administrative Appeals Tribunal (AAT) in relation to a disqualification order made by the Australian Securities and Investments Commission (ASIC) (subsection 130F(7) of the Superannuation Industry (Supervision) Act 1993). This instrument includes a copy of the AAT decision, which modifies a disqualification order imposed by ASIC on John Gilliland, who was an approved self-managed superannuation fund (SMSF) auditor.
The obligations imposed by this instrument primarily concern the parties involved: John Gilliland, ASIC, and the AAT. The instrument requires that the decision made by the AAT, which has been agreed upon by the parties, is documented, signed, and lodged with the AAT (subsection 42C(1) of the Administrative Appeals Tribunal Act 1975). It also requires that the Tribunal is satisfied that the decision falls within its powers and is appropriate (subsection 42C(2)). The AAT's decision mandates that John Gilliland, who has admitted to breaching the Accounting Professional & Ethical Standards Code (APES 110), is suspended rather than disqualified as an SMSF auditor for five years, effective from 15 August 2018. Additionally, it requires that John Gilliland abandons his previous submissions and agrees to voluntarily resign his registration as an SMSF auditor.
The instrument does not explicitly outline offences, penalties, or consequences for non-compliance, but the context implies that failure to adhere to the terms of the AAT decision could result in legal ramifications. The AAT’s decision itself is binding and enforceable, and any non-compliance by John Gilliland could lead to further disciplinary actions by ASIC or other relevant authorities. The maximum penalty for breaching the terms of the AAT decision, if applicable, would be determined by the relevant laws governing the profession and the terms of the decision itself.