NOTICE OF DISQUALIFICATION
Superannuation Industry (Supervision) Act 1993
To:
MICHAEL HERBERT
WHYALLA NORRIE SA 5608
I, James O'Halloran, 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 seriousness of the contraventions provides grounds for disqualifying you.
The disqualification takes effect on the day on which it is made.
Dated: 22 July 2020
James O'Halloran
Deputy Commissioner of Taxation
Per John Macuz
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 (SISA) was enacted to regulate and oversee the operations of the superannuation industry in Australia. This legislation was introduced to address the need for stringent oversight of superannuation funds to protect the interests of fund members and ensure compliance with regulatory standards. The SISA was enacted by the Parliament of Australia and its policy objective is to promote the efficient, honest, and economical administration of superannuation funds, as well as to protect the interests of members by ensuring that trustees and other responsible officers act in their best interests. This notice of disqualification under subsection 126A(6) of the SISA serves to inform the affected individual of their disqualification from acting as a trustee, investment manager, or custodian of a superannuation entity due to serious contraventions of the Act by the corporate trustee they were associated with.
Scope and Application
The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and corporate trustees who manage superannuation entities, as well as their responsible officers. The act’s jurisdiction is national, applying across Australia. The Act imposes disqualification on responsible officers of corporate trustees who fail to comply with the SISA, particularly when the contraventions are serious enough to warrant such action. The disqualification prohibits the individual from acting as a trustee, investment manager, or custodian of a superannuation entity, with serious penalties, including imprisonment, for those who contravene these provisions. The application of the Act can be extended or restricted through subordinate instruments, which may include regulations or further legislative amendments. Notably, the Act does not specify exclusions or exemptions beyond what is outlined in the legislation and its subordinate instruments.
Key Provisions
The notice of disqualification issued under subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SISA) informs Michael Herbert that he has been disqualified by James O'Halloran, a delegate of the Commissioner of Taxation, due to his position as a responsible officer of a corporate trustee that contravened the SISA. The disqualification is grounded on the seriousness of the contraventions committed by the corporate trustee while Mr. Herbert was in his role (subsection 126A(2)). This disqualification becomes effective on the day it is issued.
The Act imposes several obligations on the parties it governs. Trustees, investment managers, custodians, and responsible officers must adhere to the regulations set out in the SISA to ensure the proper management and supervision of superannuation entities. Any contravention of these provisions can lead to disqualification of responsible officers as seen in this case. Additionally, section 126K of the SISA mandates that disqualified persons refrain from acting in roles such as trustee, investment manager, or custodian of a superannuation entity, or being associated with entities that perform these roles.
The Act also delineates significant penalties for breaches. Under section 126K, it is an offence for a disqualified person to continue acting in any capacity related to the management of superannuation entities. This offence carries a maximum penalty of two years imprisonment. Furthermore, the disqualification details will be published in the Commonwealth Government Notices Gazette as per subsection 126A(7) of the SISA, thereby ensuring transparency and public notice of such actions.
Should Mr. Herbert wish to contest the disqualification, he has the right to request a reconsideration by the Commissioner within 21 days of receiving the notice, as stipulated in section 344 of the SISA. This request must be made in writing and must detail the reasons for believing the decision to be incorrect. Additionally, the disqualification can be revoked by the delegate under subsection 126A(5) either on their own initiative or in response to a written application from Mr. Herbert.