Notice of Disqualification – Maryan Finau - 27 August 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to address the need for effective supervision and regulation of the superannuation industry in Australia, ensuring that trustees, investment managers, and custodians of superannuation funds act in the best interests of their members. The SISA was introduced by the Australian Parliament to fill the legislative gap concerning the oversight and regulation of the superannuation industry, particularly to protect the interests of superannuation fund members and to maintain the integrity of the industry. The policy objective of the SISA is to provide a framework that ensures the prudent and ethical management of superannuation funds, thereby safeguarding the retirement savings of Australians. The Act empowers the Commissioner of Taxation to disqualify individuals who have acted in a manner that justifies such action, as evidenced by the recent notice of disqualification issued to Maryan Finau under subsection 126A(2) of the SISA. This notice was issued by a delegate of the Commissioner of Taxation due to the contravention of the SISA by the corporate trustee of one or more superannuation entities, with Maryan Finau being a responsible officer at the time of the contraventions. The disqualification is intended to prevent individuals who have demonstrated unsuitability from holding responsible positions within the superannuation industry, thereby protecting the interests of superannuation fund members and maintaining the integrity of the industry.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and corporate entities involved in the administration of superannuation funds in Australia. This includes trustees, investment managers, custodians, and responsible officers of corporate trustees. The Act imposes significant obligations on these entities to ensure compliance with superannuation laws, including proper management and administration of superannuation funds. The Act applies nationally, covering all superannuation entities operating within Australia, irrespective of state or territory boundaries. The Act provides for disqualification of individuals who are responsible officers of a corporate trustee if they are found to have contravened the Act in a manner that is serious enough to warrant such a penalty. The disqualification prohibits the individual from acting as a trustee, investment manager, or custodian of a superannuation entity or being a responsible officer of such a body. This disqualification can be revoked either on the initiative of the Commissioner or upon application by the disqualified person. Additionally, the Act allows for the publication of details of such disqualifications as Notifiable Instruments in the Federal Register of Legislation, ensuring transparency and accountability within the superannuation industry.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) contains provisions that allow for the disqualification of responsible officers of corporate trustees in cases of serious contraventions of the Act. Specifically, subsection 126A(2) empowers a delegate of the Commissioner of Taxation to disqualify an individual if they are a responsible officer at the time of such serious contraventions. This notice of disqualification (subsection 126A(6)) is issued when the delegate is satisfied that these conditions are met. The notice to Maryan Finau, issued on 27 August 2024 by Emma Rosenzweig, clearly states that Maryan has been disqualified under this provision due to serious contraventions by the corporate trustee of one or more superannuation entities, where Maryan was a responsible officer. The Act imposes specific obligations on parties and entities it governs, including the requirement for responsible officers to ensure compliance with the SISA. In cases where a responsible officer is found to have contravened the Act, the officer may face disqualification. The Act also mandates that any disqualification notice be published as a Notifiable Instrument in the Federal Register of Legislation (subsection 126A(7)). Moreover, the Act outlines that it is an offence for a disqualified person to act as a trustee, investment manager, or custodian of a superannuation entity, or to be a responsible officer of such a body (section 126K). The seriousness of such an offence is underscored by the potential penalty of up to two years in jail. The SISA further provides mechanisms for the revocation of disqualification orders. Under subsection 126A(5), the disqualification may be revoked either on the initiative of the Commissioner or upon a written application by the disqualified person. Additionally, section 344 of the Act allows for a reconsideration of the disqualification decision by the Commissioner if the affected party is not satisfied with the initial decision. This reconsideration request must be made in writing within 21 days of receiving the notice and should detail the reasons for dissatisfaction with the decision.