Notice of Disqualification – David Kinnane – 11 December 2023

Overview

The Superannuation Industry (Supervision) Act 1993 was enacted to provide a framework for the supervision of the superannuation industry in Australia, aiming to protect the interests of superannuation fund members by ensuring the responsible management of funds. The Act was introduced to address the need for stringent oversight and regulation of the superannuation industry to prevent misconduct and financial mismanagement within superannuation entities. Enacted by the Parliament of Australia, the Act sets out various provisions to ensure compliance and maintain the integrity of the superannuation system. The policy objective of the Act is to safeguard the financial well-being of superannuation fund members by imposing regulatory requirements on trustees, investment managers, and custodians, and by providing mechanisms for the enforcement of these requirements, including the power to disqualify individuals who have acted contrary to the provisions of the Act.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and corporate trustees involved in the management and supervision of superannuation entities, including their responsible officers. The Act has a national jurisdictional reach, impacting all entities and individuals within Australia. The Act’s provisions extend to disqualifying responsible officers of corporate trustees who have been involved in serious contraventions of the SISA. The disqualification is effective immediately upon notice, and details of such disqualifications are published as Notifiable Instruments in the Federal Register of Legislation. Additionally, the Act criminalises the act of a disqualified person continuing to serve in a capacity that involves the management of a superannuation entity, with penalties including up to two years imprisonment. The disqualification may be revoked either by the Commissioner’s initiative or by a written application from the disqualified person. If a person is dissatisfied with the decision, they may request reconsideration within 21 days of receiving notice.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) contains several key provisions relevant to the disqualification of individuals associated with superannuation entities. Specifically, subsection 126A(2) allows for the disqualification of individuals if they were responsible officers of a corporate trustee that has contravened the Act on one or more occasions, particularly if the seriousness of the contraventions warrants such action. This is the provision under which David Kinnane has been disqualified. The notice of disqualification, as outlined in subsection 126A(6), informs the individual of the disqualification and is effective from the day it is made. Under this Act, the disqualification imposes significant obligations on the individual, such as ceasing to act as a trustee, investment manager, or custodian of a superannuation entity. It also prohibits the disqualified individual from being or acting as a responsible officer or body corporate involved in the management of superannuation entities. This is reinforced by section 126K, which criminalises any contravention of these prohibitions, with an offence carrying a maximum penalty of two years imprisonment. Additionally, the Act provides avenues for the individual to seek reconsideration of the disqualification decision. Under section 344, a request for reconsideration must be made in writing to the Commissioner within 21 days of receiving the notice of disqualification, providing reasons why the decision should be reconsidered. Furthermore, the Act allows 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). The details of this disqualification are also published as a Notifiable Instrument in the Federal Register of Legislation under subsection 126A(7).