Notice of Disqualification – Gregory Small - 4 March 2025

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide a regulatory framework governing the administration and supervision of superannuation funds in Australia, aiming to protect the interests of superannuation fund members. The Act addresses the problem of ensuring the proper management and oversight of superannuation entities, thereby safeguarding the financial welfare of participants in these funds. The SISA is an Act of the Parliament of Australia, with its primary policy objective being to maintain the integrity and financial stability of the superannuation industry. The Act empowers the Commissioner of Taxation to disqualify individuals from acting in responsible roles within superannuation entities if they are found to have engaged in conduct that contravenes the provisions of the Act, thereby protecting the interests of superannuation fund members.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to individuals and entities involved in the administration of superannuation funds in Australia, ensuring compliance with regulatory standards. Specifically, the Act targets responsible officers of corporate trustees, investment managers, and custodians within the superannuation industry. The geographic reach of the Act is national, applying across all states and territories in Australia. The Act includes provisions for disqualification of individuals who have contravened its requirements, as evidenced by the notice issued to Gregory Small. Additionally, the Act imposes criminal penalties for disqualified individuals who continue to act in roles that are restricted by their disqualification. The disqualification can be revoked either by the delegate or upon written application by the disqualified person. Furthermore, the Act allows for reconsideration of decisions by the Commissioner, providing a mechanism for appeal within 21 days of receiving the notice of disqualification. The scope of the Act extends through subordinate instruments, which may further detail the application and enforcement of the Act’s provisions.

Key Provisions

The main operative sections of the Superannuation Industry (Supervision) Act 1993 (SISA) relevant in this notice of disqualification include subsection 126A(1) (the power to disqualify), subsection 126A(6) (the requirement to give notice of disqualification), and subsection 126A(7) (the requirement to publish the disqualification as a Notifiable Instrument). Specifically, subsection 126A(1) allows the Commissioner of Taxation to disqualify an individual from acting in a responsible capacity in relation to a superannuation entity if the corporate trustee of one or more superannuation entities has contravened the SISA and the individual was a responsible officer at the time. Subsection 126A(6) requires that a notice of disqualification be given to the individual concerned, and subsection 126A(7) mandates that details of this disqualification be published in the Federal Register of Legislation. The obligations imposed by the SISA on parties such as Gregory Small, who has been disqualified, include compliance with the Act’s requirements and refraining from acting in any capacity that involves management or oversight of superannuation entities. This extends to not being a trustee, investment manager, or custodian of a superannuation entity or a responsible officer of a body corporate that holds such a position. Additionally, the Act requires that any contravention of these obligations be reported and, where appropriate, that the Commissioner be asked to reconsider a decision. Under section 126K of the SISA, there are significant penalties for breaches of the disqualification provisions. Specifically, if a disqualified person knowingly acts in a capacity that they have been disqualified from, they commit an offence. The maximum penalty for this offence is two years in jail, reflecting the seriousness with which the law regards breaches of these provisions. Additionally, the Act allows for the revocation of a disqualification on the initiative of the Commissioner or following a written application by the disqualified person, as per subsection 126A(5). Lastly, for individuals affected by a disqualification decision, section 344 of the SISA provides a right to request reconsideration by the Commissioner. This must be done in writing within 21 days of receiving notice of the decision and must outline the reasons why the decision is believed to be incorrect. This mechanism ensures that there is a formal process for challenging decisions that may have significant impacts on an individual's professional activities.