Notice of Disqualification – Fiona C Bolitho - 28 March 2025

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to address the need for robust oversight and regulation within Australia’s superannuation industry. This legislation was introduced by the Commonwealth Parliament with the policy objective of protecting superannuation funds and beneficiaries by ensuring that industry participants adhere to high standards of conduct and compliance. The Act provides the framework for the regulation and supervision of superannuation funds, including the powers of the Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office (ATO) to oversee trustees, investment managers, and custodians of superannuation entities. The SISA aims to maintain the integrity and stability of the superannuation system, safeguarding the financial interests of millions of Australians who rely on superannuation as a primary source of retirement income. In the case of Fiona C Bolitho, the ATO, through a delegate, issued a notice of disqualification under subsection 126A(6) of the SISA. The disqualification was due to Ms Bolitho's contravention of the SISA, with the severity of the breaches warranting this action. The notice informs Ms Bolitho that she is disqualified from acting in certain capacities related to superannuation entities, such as being a trustee, investment manager, or custodian, and outlines the potential criminal penalties for contravening this disqualification. The disqualification is effective from the date of the notice and, as per subsection 126A(7), the details of this disqualification will be published as a Notifiable Instrument in the Federal Register of Legislation. Furthermore, Ms Bolitho has the option to apply for the revocation of her disqualification and can seek reconsideration of the decision by the Commissioner if she is dissatisfied with the outcome.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and entities involved in the management and regulation of superannuation funds in Australia. This includes trustees, investment managers, custodians, and responsible officers of superannuation entities, ensuring compliance with stringent standards designed to protect fund members' interests. The geographic reach of the Act is national, as it operates under the Commonwealth framework, applying across all states and territories of Australia. The Act provides for the disqualification of individuals who contravene its provisions, with the disqualification being effective immediately upon notice. The Act's application extends to any person or entity involved in the administration of superannuation funds, barring them from acting in certain capacities if found in breach of its provisions. The disqualification process is overseen by the Commissioner of Taxation, with the power to revoke the disqualification under certain conditions, and appeals against disqualification decisions can be lodged within 21 days of receiving notice.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) includes a provision under subsection 126A(1) that allows for the disqualification of individuals who have contravened the SISA, particularly when the contraventions are deemed serious enough to warrant such action. In this case, Fiona C Bolitho has been disqualified by Emma Rosenzweig, a delegate of the Commissioner of Taxation, who is satisfied that Ms. Bolitho has contravened the SISA on one or more occasions (subsection 126A(6)). The disqualification is effective immediately upon issuance of the notice, which in this instance, was on 28 March 2025. The Act imposes certain obligations and requirements on individuals who are subject to disqualification. Once disqualified, the individual is prohibited from acting or being involved in any capacity that requires a license or registration under the SISA. Specifically, under section 126K, it is an offence for a disqualified person to be, or 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. This prohibition underscores the importance of compliance with the SISA to maintain the integrity of the superannuation industry. The consequences for breaching these provisions are severe. Section 126K outlines that any disqualified person who knowingly contravenes the provisions by being or acting in the specified capacities is liable to a criminal offence. The maximum penalty for such an offence is a two-year jail term, highlighting the seriousness with which the law treats non-compliance. Additionally, the disqualification can be revoked either on the initiative of the Commissioner or upon a written application by the disqualified person, as stipulated in subsection 126A(5). If Ms. Bolitho believes the decision to disqualify her is unjust, she has the right to request a reconsideration by the Commissioner within 21 days of receiving the notice of the decision, as per section 344 of the SISA. This process provides a formal avenue for appeal, ensuring that the decision-making process is transparent and fair.