NOTICE OF DISQUALIFICATION
Superannuation Industry (Supervision) Act 1993
To:
Michael Gilbert
Bacchus Marsh VIC 3340
I, Lisa Henderson, a delegate of the Commissioner of Taxation, give you notice as required by subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA), that I have disqualified you under subsection 126A(2) of the SISA.
I have disqualified you as I am satisfied that the corporate trustee of one or more superannuation entities has contravened the SISA on one or more occasions, and at the time of the contraventions you were a responsible officer of the corporate trustee and the number and seriousness of the contraventions provides grounds for disqualifying you.
The disqualification takes effect on the day on which it is made.
Dated: 29 July 2019
James O’Halloran
Deputy Commissioner of Taxation
Per Lisa Henderson
Note 1:
Under subsection 126A(7) of the SISA, details of this disqualification notice will be published in the Commonwealth Government Notices Gazette.
Note 2:
Under section 126K of the SISA, it is an offence for a disqualified person, who knows that he or she is a disqualified person, to be, or act as a:
› trustee, investment manager or custodian of a superannuation entity
› responsible officer or a body corporate that is a trustee, investment manager or custodian, of a superannuation entity
The maximum penalty for committing this offence is two years jail.
Note 3:
Under subsection 126A(5) of the SISA, we may revoke this disqualification on our own initiative or on your written application.
Note 4:
Under section 344 of the SISA, if you are affected by this decision and are not satisfied with it, you can ask the Commissioner to reconsider the decision. This request must be made in writing within 21 days of receiving notice of this decision and must give the reasons you think the decision is wrong.
Overview
The Superannuation Industry (Supervision) Act 1993, enacted by the Commonwealth Parliament, aims to regulate and oversee the superannuation industry to protect the interests of superannuation fund members. The Act was introduced to address the need for stringent oversight and management of superannuation entities, ensuring compliance with legal and regulatory standards to safeguard the financial wellbeing of individuals relying on superannuation funds for their retirement. One of the key mechanisms within the Act is the ability to disqualify individuals who have acted irresponsibly or breached the law while serving as responsible officers of superannuation entities. This approach is intended to deter misconduct and maintain the integrity of the superannuation system. The policy objective is to ensure that those who manage superannuation funds do so with the highest standards of accountability and compliance, thereby protecting the retirement savings of Australians.
Scope and Application
The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and corporate trustees responsible for managing superannuation entities, which include superannuation funds and retirement savings accounts. The act is a Commonwealth legislation, thus it has a national jurisdictional reach and applies to all entities and individuals operating within the superannuation industry across Australia. The act targets responsible officers of corporate trustees who may be found in breach of the act's provisions, with the disqualification extending to any individual who acts as a trustee, investment manager, or custodian of a superannuation entity post-disqualification. There are no stated exclusions or exemptions, although the act may extend or restrict its application through subordinate instruments. The act's primary objective is to ensure the proper management and supervision of superannuation entities, protecting the interests of superannuation fund members.
Key Provisions
The Superannuation Industry (Supervision) Act 1993 (SISA) contains several key provisions, primarily focusing on the supervision of superannuation entities. One of the main sections, section 126A, addresses the disqualification of individuals who have been responsible officers of corporate trustees that have contravened the Act on multiple occasions. This section empowers the Commissioner of Taxation to disqualify individuals, and such disqualifications are made by a delegate of the Commissioner, as seen in the notice given to Michael Gilbert (subsection 126A(6)). The notice explains that Michael has been disqualified because he was a responsible officer when the corporate trustee contravened the SISA, and the contraventions were both numerous and serious enough to warrant this action.
Under the Act, the obligations on parties and entities it governs are stringent. For instance, responsible officers must ensure that the corporate trustees they are part of comply with the SISA at all times. This includes adhering to regulations on financial management, reporting, and governance standards designed to protect the interests of superannuation fund members. Failure to meet these obligations can lead to personal disqualification, as seen in Michael’s case.
The Act also imposes severe penalties for breaches of its provisions. Section 126K specifies 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 corporate. The maximum penalty for committing this offence is two years imprisonment. This stringent penalty underscores the importance of compliance with the Act’s requirements and the serious consequences of non-compliance. Additionally, the Act allows for the disqualification to be revoked either by the Commissioner’s office on their own initiative or following a written application by the disqualified person (subsection 126A(5)). Those affected by the disqualification also have the right to request a reconsideration of the decision within 21 days of receiving notice (section 344), providing a mechanism for appeal and review.