Notice of Disqualification – Desmond Philip Fisher

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide comprehensive supervision and regulation of the superannuation industry in Australia, ensuring the protection of members' interests. The Act was introduced to address the need for stringent oversight of superannuation entities, which manage substantial funds on behalf of individuals. The Superannuation Industry (Supervision) Amendment (Further Strengthening of Superannuation Governance and Other Measures) Act 2022 further strengthened these provisions. The SISA is administered by the Australian Parliament and its policy objective is to ensure that superannuation entities are managed with integrity and that the interests of superannuation members are protected. This notice of disqualification issued under the SISA by Emma Rosenzweig, a delegate of the Commissioner of Taxation, serves as a mechanism to enforce these objectives by disqualifying individuals who have acted contrary to the provisions of the Act, thereby safeguarding the superannuation system.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and entities involved in the management and administration of superannuation entities, including trustees, investment managers, custodians, and responsible officers. The Act extends its jurisdiction over these entities and their officers across the Commonwealth of Australia, establishing a regulatory framework to ensure the integrity and proper management of superannuation funds. The legislation allows for the disqualification of individuals who are found to be responsible officers at the time of contraventions by corporate trustees, with the potential for serious consequences, such as disqualification from managing superannuation entities and criminal penalties for acting in a disqualified capacity. This Act's reach is thus broad, encompassing all aspects of superannuation management within Australia, and it provides mechanisms for enforcement and review of its provisions. The disqualification process includes publication of details in the Commonwealth Government Notices Gazette, and offers pathways for reconsideration and potential revocation of disqualification.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) contains provisions that allow for the disqualification of individuals who have been involved in the contravention of the Act by a corporate trustee of a superannuation entity. Under subsection 126A(6) of the SISA, a delegate of the Commissioner of Taxation, such as Emma Rosenzweig, can give a notice of disqualification if they are satisfied that the corporate trustee has contravened the SISA, and that the seriousness of the contraventions provides grounds for disqualifying the individual concerned. In this case, Desmond Philip Fisher has been disqualified by Emma Rosenzweig, a delegate of the Commissioner of Taxation, due to his role as a responsible officer at the time of the contraventions. The disqualification takes effect on the day it is made. The Act imposes obligations on responsible officers of corporate trustees to ensure compliance with the SISA. Responsible officers must take all reasonable steps to ensure that the corporate trustee complies with the Act and its regulations. This includes ensuring that the trustee has the necessary governance arrangements in place, such as a board or committee with appropriate skills and experience. Responsible officers must also ensure that the trustee has adequate systems and controls in place to manage the risks associated with operating a superannuation entity. Failure to comply with the SISA can result in criminal and civil penalties. Under section 126K of the SISA, 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 a body corporate that is a trustee, investment manager or custodian, of a superannuation entity. The maximum penalty for committing this offence is two years imprisonment. Additionally, under subsection 126A(5) of the SISA, the disqualification can be revoked on the initiative of the delegate of the Commissioner of Taxation or on the written application of the disqualified person. If a person is affected by the decision and is not satisfied with it, they can ask the Commissioner to reconsider the decision under section 344 of the SISA. This request must be made in writing within 21 days of receiving notice of the decision and must give the reasons why the decision is thought to be wrong.