Notice of Disqualification – Barry Moore - 26 June 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted by the Parliament of Australia to provide for the supervision of the superannuation industry and to ensure the proper administration of superannuation entities. This legislation was introduced to address the need for stringent oversight and regulation of superannuation trustees to protect the interests of superannuation fund members. The policy objective of the SISA is to safeguard the financial well-being of superannuation fund members by imposing obligations on trustees and responsible officers to ensure compliance with the law, thereby maintaining the integrity and stability of the superannuation system. The Act empowers the Commissioner of Taxation to disqualify individuals from acting as trustees or responsible officers if they are found to have contravened the Act, as seen in the notice of disqualification issued to Barry Moore under subsection 126A(6) of the SISA.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to various entities and individuals involved in the management and administration of superannuation funds in Australia, with a specific focus on trustees, responsible officers, and corporate trustees of superannuation entities. The Act imposes obligations and standards to ensure the proper management and regulation of superannuation funds to protect the interests of superannuation fund members. It has a national jurisdictional reach, applying across the Commonwealth of Australia. The disqualification provisions outlined in the Act, such as those referenced in the notice to Barry Moore, apply to responsible officers who have contravened the Act's provisions while in their capacity, with the seriousness of the contraventions determining the applicability of disqualification. The Act extends its application through subordinate instruments and regulations that provide further detail on the obligations and standards required under the Act. However, the Act does not specify any exclusions, exemptions, or thresholds within the scope of the disqualification provisions. Instead, it provides mechanisms for revocation of disqualification and avenues for reconsideration of decisions affecting affected parties.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) includes provisions for the disqualification of individuals who are responsible officers of corporate trustees found to have contravened the Act. Specifically, subsection 126A(2) allows for the disqualification of such individuals if the contraventions are serious enough to warrant this action. In this case, Barry Moore has been disqualified by Emma Rosenzweig, a delegate of the Commissioner of Taxation, under subsection 126A(6) of the SISA. This disqualification is due to the corporate trustee of one or more superannuation entities contravening the Act on one or more occasions while Barry Moore was a responsible officer. The Act imposes significant obligations on parties and entities it governs. For responsible officers, the primary obligation is to ensure compliance with the SISA, as any serious contraventions can lead to their disqualification. The Act also mandates that details of such disqualifications be published as a Notifiable Instrument in the Federal Register of Legislation (subsection 126A(7)). Furthermore, the Commissioner has the authority to revoke a disqualification either on their own initiative or upon a written application from the disqualified person (subsection 126A(5)). Breaching the provisions of the SISA can have serious consequences. For instance, section 126K of the Act 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 or part of a body corporate that fulfils these roles. The maximum penalty for committing this offence is two years in jail. Additionally, the Act provides a process for reconsideration of the decision by the Commissioner if the affected person is dissatisfied with the disqualification. Such a request must be made in writing within 21 days of receiving notice of the decision and should detail the reasons for the dissatisfaction (section 344).