Notice of Disqualification – Igor Liubarsky - 21 May 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to address the need for regulation and oversight of the superannuation industry in Australia. This legislation was introduced by the Commonwealth Parliament to establish a framework for the supervision of superannuation entities and the responsibilities of trustees and other officers within those entities. The policy objective of the SISA is to ensure that the superannuation industry operates in a manner that protects the interests of superannuation fund members, including the preservation and responsible management of their retirement savings. In the case of Igor Liubarsky, he has been disqualified under the SISA due to the contravention of the Act by the corporate trustee of one or more superannuation entities, where he was a responsible officer at the time of the contraventions. This disqualification is intended to prevent individuals with a history of non-compliance from participating in the administration of superannuation entities, thereby maintaining the integrity and stability of the superannuation system.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to individuals and corporate entities involved in the supervision of superannuation entities within Australia. This includes trustees, investment managers, custodians, and responsible officers of superannuation entities, which are corporate entities established to hold and manage superannuation benefits for employees. The Act has a national reach, applying across the Commonwealth, states, and territories. The Act provides mechanisms to disqualify individuals who are responsible officers at the time of contraventions by the corporate trustees they serve, as seen in the notice issued to Igor Liubarsky. The disqualification extends to preventing the disqualified person from acting as a trustee, investment manager, or custodian of a superannuation entity, or being a responsible officer of such entities. The Act allows for the disqualification to be revoked either by the delegate or upon written application by the disqualified person, and it also provides for judicial review of the decision by the Commissioner. The notice of disqualification is published as a Notifiable Instrument in the Federal Register of Legislation, ensuring transparency and public accountability. The Act also imposes significant penalties, including up to two years imprisonment, for offences committed by disqualified persons who continue to act in prohibited capacities.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) contains provisions that allow for the disqualification of individuals who are responsible officers of corporate trustees of superannuation entities. In this case, under subsection 126A(2) of the SISA, Igor Liubarsky has been disqualified by Emma Rosenzweig, a delegate of the Commissioner of Taxation. This disqualification is due to the contraventions of the SISA by the corporate trustee of one or more superannuation entities while Mr Liubarsky was a responsible officer, and the nature of these contraventions provides sufficient grounds for the disqualification (subsection 126A(6)). The disqualification takes immediate effect from the date of the notice, which in this instance is 21 May 2024. Under the Act, the obligations of parties involved are clearly defined. The Commissioner of Taxation, through their delegate, has the authority to disqualify individuals who are responsible officers of corporate trustees found to have contravened the SISA. This responsibility includes conducting investigations and making decisions based on the evidence of contraventions (subsection 126A(2)). Furthermore, the Act mandates that such disqualifications are to be published as a Notifiable Instrument in the Federal Register of Legislation (subsection 126A(7)). The disqualification notice must also include specific details of the contraventions and the reasons for the disqualification. The Act imposes strict consequences for any disqualified individual who continues to act in the restricted roles. Section 126K of the SISA specifies that it is an offence for a disqualified person to be, or act as, a trustee, investment manager, or custodian of a superannuation entity, or a responsible officer or a body corporate that is a trustee, investment manager, or custodian of a superannuation entity, if they know they are disqualified. The maximum penalty for this offence is two years in jail. This stringent penalty underscores the importance of compliance with the Act and the seriousness of contravening its provisions. Additionally, the Act provides avenues for recourse and potential relief for the disqualified individual. Under subsection 126A(5), the disqualification may be revoked either on the initiative of the Commissioner of Taxation or upon the written application of the disqualified individual. This provides a mechanism for Mr Liubarsky to potentially have the disqualification reconsidered or revoked. Furthermore, under section 344 of the SISA, if Mr Liubarsky is dissatisfied with the decision, he can request the Commissioner to reconsider the decision in writing within 21 days of receiving the notice of the disqualification. This request must include the reasons why he believes the decision is wrong, providing an opportunity for a review of the decision based on new evidence or arguments.