Notice of Disqualification - Bryan Faulkner

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to regulate and oversee the administration of superannuation funds in Australia, aiming to protect the interests of superannuation fund members by ensuring that trustees, investment managers, and custodians act in the best interests of the members. The Act was introduced to address the need for a robust regulatory framework to manage and safeguard superannuation funds, which are critical for the financial security of retirees. The SISA provides the legal basis for the Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office (ATO) to oversee and enforce compliance within the superannuation industry. The policy objective of the Act is to maintain the integrity, efficiency, and soundness of the superannuation industry, thereby ensuring that superannuation funds are managed responsibly and that members’ benefits are preserved.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and entities involved in the management and administration of superannuation entities in Australia. The act imposes regulatory requirements and standards on trustees, investment managers, and custodians of superannuation entities, as well as responsible officers of corporate bodies fulfilling these roles. The geographical reach of the act extends nationally across Australia, encompassing both Commonwealth and state jurisdictions. The act provides for disqualification of individuals found to have contravened its provisions, as evidenced in the disqualification notice issued to Bryan Faulkner of Southport, Queensland. Exclusions and exemptions under the act are not specified in this notice; however, the act may provide for such provisions in subordinate instruments. The disqualification order, as communicated in the notice, is effective immediately upon issuance, and the decision to disqualify can be reconsidered by the Commissioner upon written request within 21 days of receiving the notice.

Key Provisions

The notice provided is pursuant to subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA). The decision made by Alison Lendon, a delegate of the Commissioner of Taxation, is to disqualify Bryan Faulkner from being or acting as a trustee, investment manager or custodian of a superannuation entity, or a responsible officer of a body corporate that serves in any of these capacities for a superannuation entity. The grounds for this disqualification are based on subsection 126A(2) of the SISA, which allows for disqualification if the delegate is satisfied that Bryan Faulkner has contravened the SISA on one or more occasions, and the nature, seriousness and number of these contraventions warrant such action. The disqualification order comes into effect on the date the notice is made, which is 14 November 2014. Under the SISA, Bryan Faulkner, as a person affected by this disqualification, is subject to specific obligations and requirements. Firstly, he is prohibited from engaging in any activities that involve managing or overseeing superannuation entities, which includes roles as a trustee, investment manager, or custodian. Additionally, he cannot act as a responsible officer for any body corporate that performs these functions for superannuation entities. This restriction is immediate and Bryan must comply with it from the effective date of the disqualification. The Act also mandates that particulars of this disqualification notice will be published in the Gazette, as per subsection 126A(7) of the SISA, ensuring transparency and public notification of the disqualification. Failure to comply with the disqualification order can lead to serious consequences. Under the SISA, any breach of the disqualification order can result in both civil and criminal penalties. Although the specific penalties are not detailed in the notice, the Act provides for severe sanctions for non-compliance. The Act allows for the disqualification order to be revoked by the delegate on their own initiative or upon a written application by Bryan Faulkner, as outlined in subsection 126A(5). If Bryan Faulkner is dissatisfied with the decision, he has the right to request the Commissioner to reconsider the decision within 21 days of receiving the notice, as stipulated in section 344 of the SISA. This request must be made in writing and include the reasons for the reconsideration.