Notice of Disqualification – David Feenan - 14 June 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to ensure that the superannuation industry in Australia is properly supervised and regulated, addressing the need for oversight and compliance in the management of superannuation entities. The SISA was introduced by the Australian Parliament to create a framework that maintains the integrity and stability of the superannuation system, protecting the interests of members by ensuring responsible management and administration of superannuation funds. The policy objective of the Act is to safeguard the financial well-being of superannuation fund members through effective regulation and supervision of trustees, investment managers, and custodians. In this context, the Act provides mechanisms for the disqualification of individuals who have acted in a manner that contravenes the provisions of the Act, thereby ensuring that those entrusted with the management of superannuation funds adhere to the highest standards of conduct and compliance.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) governs the administration and supervision of superannuation funds in Australia. This Act applies to trustees, investment managers, custodians, and responsible officers of superannuation entities, ensuring they comply with strict standards and regulations designed to protect the interests of superannuation fund members. The Act's jurisdiction covers the entire Commonwealth of Australia, and its provisions extend to all superannuation entities and related activities within this scope. Exclusions or exemptions are limited and typically pertain to specific types of funds or entities as outlined in the Act or subordinate instruments. The Act can also extend or restrict its application through regulations and other subordinate instruments, thereby adapting to changes in the superannuation landscape over time. In the case of David Feenan, the Act was enforced to disqualify him from acting in a responsible capacity due to the corporate trustee’s contraventions, with the disqualification notice published as a Notifiable Instrument in the Federal Register of Legislation.

Key Provisions

The key sections of the Superannuation Industry (Supervision) Act 1993 (SISA) pertinent to this notice involve disqualifications of individuals who have acted as responsible officers of corporate trustees who have contravened the Act. Specifically, subsection 126A(2) allows for the disqualification of a responsible officer if the corporate trustee they represent has contravened the Act, and subsection 126A(6) mandates that such disqualifications must be notified to the affected individual. Section 126K further outlines the prohibited activities for disqualified persons, including acting as a trustee, investment manager, or custodian of a superannuation entity, or being a responsible officer of a body corporate that holds such roles. The Act imposes several obligations on the parties it governs. Firstly, responsible officers must ensure that the corporate trustees they represent comply with all provisions of the SISA. They are also required to act with due diligence and in the best interests of the superannuation entities. Additionally, upon receiving a disqualification notice, the individual must refrain from engaging in any activities that would make them a trustee, investment manager, or custodian of a superannuation entity, or a responsible officer of such entities. Breaching the provisions of section 126K, which prohibits a disqualified person from acting in the specified roles, is an offence under the SISA. The maximum penalty for such an offence is two years in jail, underscoring the seriousness with which the Act treats these violations. Moreover, the disqualification itself is a significant consequence, not only barring the individual from participating in the superannuation industry but also potentially tarnishing their professional reputation. There are also provisions for the Commissioner to reconsider the disqualification decision under section 344, and for the disqualification to be revoked either on the initiative of the Commissioner or upon written application by the disqualified individual, as per subsection 126A(5).