Notice of Disqualification – Anthony Dean Borinelli

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to establish a robust regulatory framework for the supervision of the superannuation industry in Australia, aiming to protect the interests of superannuation fund members by ensuring the industry's integrity and accountability. The SISA was introduced to address the need for effective oversight and regulation of superannuation entities to safeguard the retirement savings of Australians. Enacted by the Parliament of Australia, the policy objective of the SISA is to maintain the financial stability and proper management of superannuation funds, ensuring that trustees and other responsible officers act in the best interests of the members. In cases of serious contraventions of the SISA, the Act empowers the Commissioner of Taxation to disqualify individuals from participating in the administration of superannuation entities, as a measure to uphold the integrity of the superannuation system.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) is a Commonwealth Act that applies to individuals who are, or wish to be, involved in the superannuation industry, including trustees, investment managers, custodians, and responsible officers of superannuation entities. The Act’s geographic reach is national, applying across Australia, and it includes provisions that extend its application through subordinate instruments, such as regulations and determinations, which can further define the scope and detail specific requirements. The Act does not explicitly state exclusions or exemptions, but it does specify thresholds and conditions under which disqualification can occur, such as contravening the Act’s provisions. This disqualification not only prohibits the individual from acting in the specified roles within the superannuation industry but also carries significant penalties, including potential imprisonment. Individuals who are disqualified can seek reconsideration of the decision within 21 days, and the disqualification can be revoked under certain conditions.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) is a significant piece of legislation in Australia, designed to regulate the operations of the superannuation industry. Section 126A(6) of the Act stipulates that the Commissioner of Taxation, or a delegate, must give a disqualified person written notice of the disqualification. This is exactly what happened to Anthony Dean Borinelli, who was disqualified under subsection 126A(1) due to serious contraventions of the SISA. The notice to Borinelli, signed by Emma Rosenzweig, a delegate of the Commissioner of Taxation, states that the disqualification was effective from the date of the notice, 31 August 2022. The SISA imposes several obligations on individuals and entities within the superannuation industry. For example, trustees, investment managers, and custodians of superannuation entities must adhere to the provisions of the Act to maintain their eligibility. Specifically, section 126K of the Act criminalises the act of a disqualified person knowingly continuing to act in these capacities. This includes serving as a trustee, investment manager, or custodian of a superannuation entity, or being a responsible officer or a body corporate that performs these roles. These obligations are intended to ensure that only those who meet the standards set by the Act can participate in the supervision and management of superannuation funds. In terms of penalties and consequences for breaches, section 126K imposes a significant penalty for any disqualified person who continues to act in the prohibited capacities. The maximum penalty for this offence is two years imprisonment, underscoring the seriousness with which the Act treats such contraventions. This is further reinforced by the provision in subsection 126A(5) that allows for the disqualification to be revoked either on the initiative of the Commissioner or upon the written application of the disqualified person. Additionally, section 344 of the SISA provides a mechanism for appealing the decision within 21 days of receiving the notice, allowing the Commissioner to reconsider the decision if the disqualified person provides written reasons for dissatisfaction. Finally, the notice to Borinelli includes a notification under subsection 126A(7) that details of the disqualification will be published in the Commonwealth Government Notices Gazette. This public notice serves to inform the broader public and industry participants of the disqualification, thereby maintaining transparency and accountability within the superannuation industry. This requirement ensures that the actions taken under the SISA are transparent and that disqualified individuals are publicly identified, reinforcing the integrity of the superannuation system.