| Commonwealth
of Australia | Gazette |
Published by the Commonwealth of Australia | GOVERNMENT NOTICES |
NOTICE OF DISQUALIFICATION
Superannuation Industry (Supervision) Act 1993
To:
Francis Anthony Sherry
CAMP HILL, QLD 4152
I, James O'Halloran, a delegate of the Commissioner of Taxation, give you notice as required by subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA), that I have disqualified you under subsection 126A(2) of the SISA.
I have disqualified you as I am satisfied that the corporate trustee of one or more superannuation entities has contravened the SISA on one or more occasions, and at the time of the contraventions you were a responsible officer of the corporate trustee and the number of the contraventions provides grounds for disqualifying you.
The disqualification takes effect on the day on which it is made.
Dated: 29 November 2019
James O'Halloran
Deputy Commissioner of Taxation
Per Ian Ross
Note 1:
Under subsection 126A(7) of the SISA, details of this disqualification notice will be published in the Commonwealth Government Notices Gazette.
Note 2:
Under section 126K of the SISA, it is an offence for a disqualified person, who knows that he or she is a disqualified person, to be, or act as a:
› trustee, investment manager or custodian of a superannuation entity
› 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 jail.
Note 3:
Under subsection 126A(5) of the SISA, we may revoke this disqualification on our own initiative or on your written application.
Note 4:
Under section 344 of the SISA, if you are affected by this decision and are not satisfied with it, you can ask the Commissioner to reconsider the decision. This request must be made in writing within 21 days of receiving notice of this decision and must give the reasons you think the decision is wrong.
Overview
The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide for the prudential supervision of the superannuation industry in Australia, addressing the need for regulation to protect the interests of superannuation fund members. The Act aims to ensure that superannuation funds are managed efficiently, honestly, and in the best interests of members. The SISA was enacted by the Commonwealth Parliament, reflecting a commitment to safeguarding the financial well-being of Australians' retirement savings. The policy objective of the Act is to maintain the integrity and stability of the superannuation system, thereby protecting members' entitlements and ensuring the long-term sustainability of superannuation funds. This legislative framework was introduced to fill a critical gap in the regulation of the superannuation sector, which was previously insufficiently overseen.
Scope and Application
The Superannuation Industry (Supervision) Act 1993 (SISA) applies to responsible officers of corporate trustees of superannuation entities, which include individuals and corporate entities managing superannuation funds. The disqualification provisions under the SISA are applicable nationally across Australia, covering any person or corporate trustee involved in the management of superannuation funds, regardless of where they are located within the country. The Act excludes certain individuals or entities that do not meet the threshold criteria for disqualification, such as those with fewer or less severe contraventions. The application and enforcement of the Act can be extended through subordinate instruments, allowing for specific regulations or guidelines that further define the scope and execution of the Act’s provisions. A disqualified person under the SISA is prohibited from acting as a trustee, investment manager, or custodian of a superannuation entity and from being a responsible officer of such entities, with potential criminal penalties for non-compliance.
Key Provisions
The main operative sections of the Superannuation Industry (Supervision) Act 1993 (SISA) relevant to this disqualification notice are subsections 126A(2) and 126A(6). Subsection 126A(2) allows for the disqualification of a responsible officer if there are contraventions by the corporate trustee they serve, provided the number of contraventions justifies the disqualification. Subsection 126A(6) mandates that the delegate of the Commissioner of Taxation must give notice of the disqualification to the person affected, which is Francis Anthony Sherry in this instance.
Under the Act, the obligations imposed on Francis Anthony Sherry, as a disqualified person, include refraining from acting or being involved as a trustee, investment manager, or custodian of a superannuation entity, as well as not being a responsible officer of any such entity. These restrictions are intended to prevent further breaches of the SISA and ensure compliance with superannuation regulations.
There are significant consequences for breaches of the disqualification order. Section 126K of the SISA outlines that it is an offence for a disqualified person who knows of their disqualification status to act in any of the prohibited capacities. The maximum penalty for such an offence is two years imprisonment. This severe penalty underscores the importance of adhering to the disqualification and the potential criminal repercussions for non-compliance.
Additionally, the Act provides pathways for the disqualification to be reviewed or revoked. Under subsection 126A(5), the disqualification may be revoked either by the delegate of the Commissioner of Taxation on their own initiative or upon the written application of the disqualified person. This provides a mechanism for potential reinstatement if the grounds for disqualification no longer apply. Furthermore, under section 344 of the SISA, Francis Anthony Sherry has the right to request the Commissioner to reconsider the disqualification decision if he is not satisfied with it, provided this request is made in writing within 21 days of receiving the notice.