Notice of Disqualification – Annette Ford - 20 November 2023

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted by the Australian Parliament to regulate the superannuation industry, ensuring the protection of superannuation funds and beneficiaries. The Act was introduced to address the need for a robust regulatory framework to oversee the activities of trustees, investment managers, and custodians of superannuation entities. This was necessary to maintain the integrity of the superannuation system and safeguard the interests of individuals relying on these funds for their retirement. The SISA provides the Commissioner of Taxation with the authority to disqualify individuals who have contravened the Act, as evidenced by the notice issued to Annette Ford, who has been disqualified due to serious contraventions of the Act. This disqualification aims to uphold the standards and ethical requirements within the superannuation industry, preventing those found guilty of serious breaches from managing or influencing superannuation funds.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to individuals and entities involved in the administration and management of superannuation funds in Australia. This includes trustees, investment managers, custodians, and responsible officers of superannuation entities. The Act extends to all superannuation entities regardless of where they are established or operate within the country, thus covering Commonwealth, state, and territory jurisdictions. The Act aims to regulate and oversee the superannuation industry to protect the interests of superannuation fund members. Under the Act, certain individuals can be disqualified from participating in the administration of superannuation entities if they have contravened the Act. This disqualification can be imposed if the contraventions are serious enough to warrant such action. Once disqualified, the individual cannot act or be involved as a trustee, investment manager, custodian, or responsible officer of a superannuation entity, and doing so constitutes an offence with potential penalties including up to two years imprisonment. The disqualification can be reviewed and potentially revoked by the Commissioner of Taxation either on the initiative of the Commissioner or following a written application from the disqualified person. Decisions made under the Act can be subject to reconsideration by the Commissioner if the affected party believes the decision is incorrect, provided the request is made in writing within 21 days of receiving notice of the decision.

Key Provisions

The notice of disqualification provided under subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA) informs Annette Ford that she has been disqualified from participating in any capacity that involves the management or administration of a superannuation entity. This disqualification is due to the delegate of the Commissioner of Taxation being satisfied that Ford has contravened the SISA on one or more occasions, with the seriousness of these contraventions warranting such a measure. The disqualification is effective immediately from the date of the notice. The SISA imposes certain obligations on individuals and entities involved in the superannuation industry. Under section 126K, it is an offence for a disqualified person who is aware of their disqualification to act as a trustee, investment manager, or custodian of a superannuation entity, or to be a responsible officer of a body corporate that fulfils any of these roles. This prohibition extends to any actions that would make the disqualified person responsible for the administration or management of a superannuation fund. Non-compliance with these provisions can result in severe consequences. Section 126K stipulates that any disqualified person who knowingly acts in a prohibited capacity is subject to criminal penalties, including imprisonment for up to two years. This underscores the seriousness with which the Act treats breaches of disqualification orders. Furthermore, subsection 126A(5) of the SISA allows for the possibility of revoking the disqualification, either on the initiative of the authorities or upon a written application by the disqualified individual. For individuals like Ford who are aggrieved by the decision to disqualify them, section 344 of the SISA provides a recourse. This section allows for a written request to the Commissioner to reconsider the decision within 21 days of receiving the notice. This request must detail the reasons why the individual believes the decision is incorrect, providing an opportunity for a review and potential rectification of the disqualification. This ensures that the process remains fair and allows for due process to be observed.