Notice of Disqualification – Andrew French – 13 October 2023

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to establish a regulatory framework governing the administration and oversight of superannuation funds in Australia. This Act was introduced to address the need for robust regulation in the superannuation industry to protect the interests of superannuation fund members and ensure the proper management of their funds. The SISA was enacted by the Parliament of Australia, aiming to provide comprehensive oversight and ensure the integrity and stability of the superannuation industry. The policy objective of the Act is to safeguard the financial interests of superannuation fund members by imposing strict regulatory requirements on trustees, investment managers, and custodians of superannuation entities. The Act's provisions include mechanisms for the disqualification of responsible officers who fail to comply with the regulatory standards, ensuring accountability and deterring misconduct within the industry.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to responsible officers of corporate trustees of superannuation entities within the Commonwealth of Australia. This includes individuals such as Andrew French, who, as a responsible officer of a corporate trustee, have been found to have contravened the provisions of the Act, thereby leading to their disqualification. The disqualification under the Act is effective immediately upon issuance of the notice, and it prohibits the disqualified person from acting as a trustee, investment manager, or custodian of a superannuation entity, or from being a responsible officer of any body corporate involved in these roles. The Act's jurisdictional reach is national, applying uniformly across all states and territories in Australia. The disqualification notice, as a notifiable instrument, is also published in the Federal Register of Legislation, ensuring transparency and public record of such actions. Additionally, the Act allows for potential revocation of the disqualification under certain conditions and provides a mechanism for reconsideration of the decision by the Commissioner if the disqualified person believes the decision is incorrect.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) provides for the disqualification of individuals who have been responsible officers of a corporate trustee that has contravened the Act. Section 126A(2) allows for the disqualification of such individuals if the contraventions are serious enough to warrant this action. In this case, Andrew French has been disqualified by Emma Rosenzweig, a delegate of the Commissioner of Taxation, as indicated in the notice dated 13 October 2023. This disqualification arises from the belief that Mr. French was a responsible officer at the time when the corporate trustee contravened the SISA, and the seriousness of these contraventions justifies his disqualification. Under the Act, individuals like Andrew French who have been disqualified face specific obligations and requirements. Section 126K of the SISA stipulates that it is an offence for a disqualified person to act as a trustee, investment manager, or custodian of a superannuation entity or to be a responsible officer of a body corporate that holds any of these roles. This is a stringent requirement to ensure that individuals who have been found to have acted in a manner contrary to the SISA do not continue to have significant influence over superannuation entities. Failure to comply with this requirement can result in serious legal consequences. The Act also imposes significant penalties for breaches of its provisions. Section 126K makes it an offence for a disqualified person to act in any of the prohibited roles, and the maximum penalty for such an offence is two years imprisonment. This penalty underscores the seriousness with which the Act treats breaches related to superannuation entities. Additionally, the disqualification notice informs that the details of the disqualification will be published as a Notifiable Instrument in the Federal Register of Legislation, as per subsection 126A(7) of the SISA. This transparency measure ensures that the public is aware of the disqualifications and the reasons behind them. In terms of recourse, the Act provides avenues for those affected by the disqualification decision. Section 344 of the SISA allows an affected individual to request the Commissioner to reconsider the decision if they are dissatisfied with it. This request must be made in writing within 21 days of receiving notice of the decision and should include the reasons for dissatisfaction. Furthermore, subsection 126A(5) of the SISA allows for the revocation of the disqualification, either on the initiative of the Commissioner or upon the written application of the disqualified individual. This flexibility provides a potential pathway for Andrew French to seek relief from the disqualification if he can demonstrate that the circumstances warrant it.