Notice of Disqualification – Michael Hickey

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide a regulatory framework for the supervision of superannuation entities, ensuring that these entities are managed responsibly and in the best interests of their members. This Act was introduced to address the need for oversight and regulation in the superannuation industry, aiming to protect the interests of superannuation fund members by ensuring compliance with legislative standards. The SISA is administered by the Commissioner of Taxation, who is responsible for enforcing the provisions of the Act, including the disqualification of individuals who fail to meet the standards required for responsible management of superannuation funds. The policy objective of the SISA is to maintain the integrity and stability of the superannuation industry by preventing misconduct and ensuring that trustees and other responsible officers act in accordance with the law. In the case of Michael Hickey, he has been disqualified under subsection 126A(2) of the SISA due to his role as a responsible officer of a corporate trustee that contravened the Act on multiple occasions. The disqualification was imposed because the seriousness of the contraventions warranted such action. This disqualification is effective immediately and will be published in the Commonwealth Government Notices Gazette as required by the Act. Furthermore, it is an offence for Mr. Hickey, while being aware of his disqualification, to act as a trustee, investment manager, custodian, or responsible officer of a superannuation entity, with potential penalties including up to two years in jail. The disqualification can be reviewed and potentially revoked under the provisions of the SISA, and Mr. Hickey has the right to request a reconsideration of the decision within 21 days of receiving the notice.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 applies to individuals and entities involved in the superannuation industry, including trustees, responsible officers, and bodies corporate that act as trustees, investment managers, or custodians of superannuation entities. The Act's jurisdiction covers the entire Commonwealth of Australia, with its provisions applicable nationwide. The Act provides for the disqualification of individuals from performing certain roles within the superannuation industry if they are found to have contravened its provisions, particularly when such contraventions occur while they are serving as responsible officers. The disqualification takes immediate effect upon issuance of the notice, as evidenced by the disqualification notice issued to Michael Hickey, a resident of Buddina, Queensland. The Act also provides for the publication of disqualification notices in the Commonwealth Government Notices Gazette and includes provisions for the revocation of such disqualifications. Additionally, it sets out criminal penalties for disqualified persons who continue to act in the prohibited capacities, with a maximum penalty of two years imprisonment.

Key Provisions

The main operative sections of the Superannuation Industry (Supervision) Act 1993 (SISA) pertinent to this notice include subsections 126A(2) and 126A(6). Subsection 126A(2) allows for the disqualification of a person if the corporate trustee of a superannuation entity has contravened the Act, and the person was a responsible officer at the time of the contravention. Subsection 126A(6) mandates the Commissioner of Taxation to provide a notice of disqualification to the affected person. In this case, the delegate of the Commissioner, Emma Rosenzweig, has issued the notice to Michael Hickey, specifying that he has been disqualified due to the corporate trustee's contraventions of the SISA while he was a responsible officer. The Act imposes specific obligations and requirements on the parties it governs. For Michael Hickey, as a responsible officer of the corporate trustee, his obligations include ensuring compliance with the SISA. If the corporate trustee contravenes the Act, and the contraventions are serious enough, the Act mandates that the responsible officer can be disqualified. Additionally, the Act requires the Commissioner of Taxation to publish details of the disqualification in the Commonwealth Government Notices Gazette, as outlined in subsection 126A(7). The Act also stipulates offences and penalties for breaches, particularly under section 126K. A disqualified person who knowingly acts as a trustee, investment manager, custodian, or responsible officer of a superannuation entity commits an offence. The maximum penalty for this offence is two years imprisonment, as explicitly stated. This serves as a deterrent against any attempts by disqualified individuals to circumvent their disqualification by continuing to act in these roles. The notice further informs Michael Hickey of his rights under the SISA. Under section 344, if he is dissatisfied with the disqualification, he has the right to request the Commissioner to reconsider the decision. This request must be made in writing within 21 days of receiving the notice and should include the reasons why he believes the decision is incorrect. Additionally, the notice mentions the possibility of revocation of the disqualification under subsection 126A(5), either on the initiative of the Commissioner or upon a written application by Michael Hickey himself.