Notice of Disqualification – Marilyn De Lara

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted by the Parliament of Australia to address the need for robust regulation of the superannuation industry, ensuring the protection of superannuation funds and the rights of fund members. The Act aims to maintain the integrity and proper functioning of the superannuation system by establishing a framework for the supervision of trustees, investment managers, and custodians of superannuation entities. The 1993 Act was introduced to fill a legislative gap in the regulation of superannuation entities, which was seen as necessary to safeguard the interests of superannuation fund members and to promote confidence in the superannuation system. This disqualification notice, issued under subsection 126A(6) of the SISA, serves to address a contravention of the Act by a corporate trustee of one or more superannuation entities, with Marilyn De Lara being disqualified due to her role as a responsible officer during the contraventions. The notice was issued by a delegate of the Commissioner of Taxation, Emma Rosenzweig, and details of the disqualification will be published in the Commonwealth Government Notices Gazette as per subsection 126A(7) of the SISA. The policy objective of the disqualification is to ensure that individuals who have been involved in serious breaches of the SISA do not continue to act in a capacity that involves the management of superannuation funds.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to responsible officers of corporate trustees within the superannuation industry, ensuring that these individuals uphold the standards and regulations governing the management of superannuation entities. The act imposes disqualifications on responsible officers if they are found to have contravened the SISA, particularly if the contraventions are frequent or serious enough to warrant such action. This disqualification not only affects the individual named but also extends to preventing them from acting as a trustee, investment manager, or custodian of any superannuation entity, or from being a responsible officer of any body corporate that assumes such roles. The geographic and jurisdictional reach of this act is national, as it is a Commonwealth Act, applying uniformly across all states and territories in Australia. There are no explicit exclusions or exemptions mentioned in the notice, but the act does allow for the possibility of revocation of the disqualification under certain conditions. The notice also highlights that any disqualified person who knowingly continues to act in a capacity prohibited by the act commits an offence, with potential penalties including up to two years in jail. The act's provisions are further extended and detailed through subordinate instruments, which may provide additional regulations and clarifications.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) includes specific provisions for disqualification of individuals who are responsible officers of corporate trustees of superannuation entities. Section 126A(6) allows a delegate of the Commissioner of Taxation to provide a notice of disqualification to an individual like Marilyn De Lara, when they have reasonable grounds to believe that the individual has contravened the SISA on one or more occasions while being a responsible officer. This disqualification is issued under subsection 126A(2) when the nature and frequency of the contraventions warrant such action. Under the SISA, the disqualification imposes significant obligations on the individual concerned. Once disqualified, an individual such as Marilyn De Lara is prohibited from acting as a trustee, investment manager, or custodian of a superannuation entity, or from being a responsible officer of a body corporate that holds any of these roles. This is detailed in section 126K, which explicitly outlines the activities that a disqualified person must refrain from engaging in. The disqualification serves as a protective measure to prevent further contraventions by individuals who have previously breached the SISA. Breach of the disqualification provisions is taken very seriously under the SISA. Specifically, section 126K sets out that it is an offence for a disqualified person who is aware of their disqualification status to act in any capacity mentioned above. The maximum penalty for committing this offence is a two-year jail term, reflecting the seriousness of bypassing the disqualification order. Additionally, subsection 126A(5) provides for the possibility of revocation of the disqualification, either initiated by the delegate or upon a written application by the disqualified person. For those affected by a disqualification decision, the SISA provides a mechanism for reconsideration. Under section 344, an individual can request the Commissioner to reconsider the decision within 21 days of receiving the notice. This request must be made in writing and should outline the reasons for believing the decision to be incorrect. This provision ensures that individuals have an opportunity to contest the decision and seek a review if they believe it was made in error.