Notice of Disqualification – Hikimate Waaka - 15 November 2023

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide for the supervision of the superannuation industry, including the regulation of trustees, investment managers and custodians of superannuation entities. This Act was introduced to address the need for regulation and oversight in the superannuation industry, ensuring that entities manage retirement funds responsibly and in the best interests of their members. The Act was enacted by the Parliament of Australia with the policy objective of protecting the interests of superannuation fund members by establishing a framework for the supervision and regulation of the industry. The notice provided under the Act informs Hikimate Waaka that they have been disqualified from acting as a trustee, investment manager or custodian of a superannuation entity due to the contravention of the SISA by the corporate trustee, of which they were a responsible officer at the time. The disqualification is effective immediately, and details of this decision will be published as a Notifiable Instrument in the Federal Register of Legislation. The Act also provides for the potential revocation of the disqualification and outlines the process for requesting a reconsideration of the decision.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to individuals and corporate entities involved in the administration of superannuation funds within Australia. Specifically, the Act targets responsible officers of corporate trustees, investment managers, and custodians of superannuation entities, ensuring that these roles are held by fit and proper persons. This legislation has a national reach, applying across all jurisdictions within Australia, thereby maintaining a consistent standard of supervision and regulation across the superannuation industry. The Act includes provisions for disqualifying individuals who are found to have contravened its requirements, which can include breaches of fiduciary duties, improper investment practices, or failure to comply with reporting obligations. The disqualification process is formalised through a notice mechanism, and the disqualified person is prohibited from acting in any capacity within the superannuation industry, with significant penalties for non-compliance. The Act also provides for the possibility of revocation of the disqualification under certain conditions, allowing for a review process if new evidence or changed circumstances warrant reconsideration.

Key Provisions

The notice provided to Hikimate Waaka under subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA) is the primary operative section that informs him of his disqualification. This disqualification is due to the corporate trustee of one or more superannuation entities having contravened the SISA on one or more occasions while Hikimate was a responsible officer. The seriousness of these contraventions led to the decision to disqualify him. The disqualification is effective from the date of the notice, as stated in subsection 126A(6). The notice also informs Hikimate that the details of this disqualification will be published as a Notifiable Instrument in the Federal Register of Legislation, as per subsection 126A(7) of the SISA. The Act imposes several obligations and requirements on the parties it governs. Under section 126A(2), it allows for the disqualification of individuals who are responsible officers when their associated corporate trustees contravene the SISA. This is particularly relevant when the contraventions are serious enough to warrant such action. Moreover, section 126K establishes an offence for a disqualified person who knowingly acts as a trustee, investment manager, or custodian of a superannuation entity, or as a responsible officer of a body corporate involved in such capacities. This ensures that disqualified individuals do not engage in activities that could compromise the integrity of the superannuation industry. In terms of penalties and consequences, section 126K of the SISA stipulates that it is an offence for a disqualified person to act in prohibited capacities. The maximum penalty for committing this offence is two years in jail. This serves as a deterrent to those who might consider ignoring their disqualification. Additionally, subsection 126A(5) of the SISA allows for the disqualification to be revoked either on the authority's own initiative or upon a written application by the disqualified person. This provides a pathway for Hikimate to potentially have his disqualification lifted under certain conditions. Finally, section 344 of the SISA allows Hikimate to request the Commissioner to reconsider the decision if he is dissatisfied with it, provided that the request is made in writing within 21 days of receiving the notice and includes the reasons for his dissatisfaction. This ensures that there is a process in place for reviewing and potentially reversing the decision if new information or arguments are presented.