Notice of Disqualification – Alberto Maribong – 6 June 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to address the need for stringent regulation and supervision of the superannuation industry, ensuring that it operates in a manner that protects the interests of members and beneficiaries. This legislation provides a framework for the oversight of superannuation entities, including trustees, investment managers, and custodians, to maintain high standards of conduct and compliance. The SISA was introduced by the Australian Parliament to rectify issues and gaps in the regulation of superannuation entities, aiming to maintain the integrity and reliability of the superannuation system. The policy objective of the Act is to safeguard the financial well-being of superannuation members by enforcing stringent compliance measures and ensuring that those who manage superannuation funds adhere to high standards of governance and accountability.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and entities involved in the administration of superannuation entities in Australia, such as trustees, investment managers, and custodians. The Act specifically targets responsible officers of corporate trustees who are found to have contravened the provisions of the Act. The geographic reach of the Act is national, applying across all states and territories in Australia. The disqualification notice issued under subsection 126A (6) of the SISA serves to exclude the named individual, Alberto Maribong, from acting in any capacity related to the management of superannuation entities following a determination of contravention by the relevant corporate trustee. The Act also provides for the publication of such disqualification notices as Notifiable Instruments in the Federal Register of Legislation, ensuring transparency and accountability within the superannuation industry. Furthermore, the Act imposes significant penalties for disqualified individuals who continue to act in prohibited capacities, with the potential for a two-year jail term as stipulated in section 126K of the SISA. This legislative framework is designed to uphold the integrity and proper administration of superannuation funds in Australia.

Key Provisions

The main operative sections of the Superannuation Industry (Supervision) Act 1993 (SISA) relevant here are sections 126A and 126K. Section 126A (2) allows for the disqualification of individuals who are responsible officers of a corporate trustee of a superannuation entity if they have been involved in serious contraventions of the Act. Section 126A (6) mandates that the Commissioner of Taxation must provide a notice of disqualification to the individual concerned, which was done in this case to Alberto Maribong. Section 126K establishes that it is an offence for a disqualified person to act as a trustee, investment manager, custodian, or responsible officer of a superannuation entity if they know they are disqualified. The Act imposes several obligations and requirements on the parties it governs. Firstly, it requires corporate trustees to adhere to the provisions of the SISA, ensuring that all activities related to the management and oversight of superannuation entities are conducted in compliance with the law. It also mandates that responsible officers, such as Alberto Maribong in this case, must be aware of their obligations and the consequences of any breaches. Additionally, the Act requires the Commissioner of Taxation to notify individuals of their disqualification and to publish details of such disqualifications as Notifiable Instruments in the Federal Register of Legislation. The Act also provides for various civil and criminal consequences for breaches. Under section 126K, it is an offence for a disqualified person to act in any of the prohibited capacities. The maximum penalty for committing this offence is two years imprisonment, as outlined in Note 2. This means that if Alberto Maribong, or any other disqualified person, continues to act in a capacity that they are prohibited from due to their disqualification, they could face significant legal repercussions. Furthermore, under subsection 126A (5) of the SISA, the disqualification can be revoked either by the Commissioner on their own initiative or upon a written application by the disqualified person. This provides a potential avenue for Alberto Maribong to seek relief from his disqualification if he can demonstrate grounds for revocation. Additionally, under section 344 of the SISA, Alberto Maribong has the right to request the Commissioner to reconsider the decision if he is not satisfied with it, provided that the request is made in writing within 21 days of receiving the notice of disqualification.