NOTICE OF DISQUALIFICATION
Superannuation Industry (Supervision) Act 1993
To:
Mr Khoi Ba Phan
FRANKSTON VIC 3199
I, Ivan Parrett, a delegate of the Commissioner of Taxation, give you notice as required by subsection 126A(6) of the Superannuation Industry (Supervision) Act 1993 (SIS Act), that I have made a decision to disqualify you from being a trustee or a responsible officer of a body corporate that is a trustee, investment manager or custodian, of a superannuation entity.
I have disqualified you under subsection 126A(1) of the SIS Act as I am satisfied that you have contravened the SIS Act on one or more occasions and the nature, seriousness and number of contraventions, provides grounds for disqualifying you.
The disqualification order takes effect on the day on which this notice is made.
Dated: 23 September 2013.
Ivan Parrett
Assistant Commissioner of Taxation
Per Theo Saltis
Note 1:
In accordance with subsection 126A(7) of the SIS Act, particulars of this disqualification notice will be published in the Gazette.
Note 2:
In accordance with subsection 126A(5) of the SIS Act, we may revoke this disqualification order on our own initiative or on written application made by you.
Note 3:
In accordance with section 344 of the SIS Act, if you are a person who is affected by this decision and you are dissatisfied with it, you may ask the Commissioner to reconsider this decision. Such a request must be made in writing within 21 days of the day on which you received notice of the decision and must also give the reasons for making the request.
Overview
The Superannuation Industry (Supervision) Act 1993 (SIS Act) was enacted to establish a regulatory framework for the supervision of superannuation entities in Australia, with the aim of protecting the interests of superannuation fund members. The Act addresses the problem of ensuring that trustees and responsible officers of superannuation entities act with integrity and competence, thereby safeguarding the financial welfare of fund members. The SIS Act was enacted by the Parliament of Australia and the policy objective is to maintain the integrity and stability of the superannuation system. In this context, the Act empowers the Commissioner of Taxation to disqualify individuals from serving as trustees or responsible officers if they have contravened the provisions of the Act. This legislative measure is intended to deter misconduct and maintain high standards of conduct within the superannuation industry.
Scope and Application
The Superannuation Industry (Supervision) Act 1993 (SIS Act) applies to persons who are trustees or responsible officers of body corporates that operate as trustees, investment managers, or custodians of superannuation entities. The disqualification provisions under the Act are designed to prevent individuals who have contravened the law from holding positions of responsibility within the superannuation industry. In this case, the Act has been used to disqualify Mr Khoi Ba Phan from such roles due to his contraventions of the Act. The jurisdiction of the Act is national, given it is a Commonwealth Act, meaning it applies across Australia. The Act’s provisions can be extended through subordinate instruments, allowing for specific regulations that further define the conduct and transactions covered by the legislation. There are no specific exclusions mentioned in this context, though exemptions or thresholds might apply in other sections of the Act. The decision to disqualify Mr Phan is effective immediately upon the issuance of the notice, with the particulars of this disqualification being published in the Gazette as required by the Act.
Key Provisions
The Superannuation Industry (Supervision) Act 1993 (SIS Act) provides for various regulatory mechanisms to ensure compliance and oversight within the superannuation industry. Under section 126A(6), a delegate of the Commissioner of Taxation, such as Ivan Parrett, has the authority to disqualify individuals from holding positions such as trustee or responsible officer within bodies that manage superannuation funds, including trustees, investment managers, or custodians. This authority is exercised when there is evidence of contraventions of the SIS Act. The specific decision to disqualify Mr Khoi Ba Phan is grounded in subsection 126A(1), which allows for disqualification when the nature, seriousness, and number of contraventions justify such action.
The obligations imposed by the SIS Act on individuals and entities in the superannuation industry are substantial. Trustees, investment managers, and custodians are required to adhere to strict governance and compliance standards to ensure the proper management and security of superannuation funds. The Act mandates the maintenance of adequate records, transparent dealings, and adherence to fiduciary duties. Failure to meet these obligations can lead to enforcement actions, including disqualification. In Mr Phan’s case, his disqualification is due to his contraventions of the SIS Act, indicating that he did not meet these obligations.
The consequences for breaching the provisions of the SIS Act can be severe. Section 126A outlines the power to disqualify individuals from holding responsible positions in superannuation entities. The disqualification order takes immediate effect, as stated in the notice to Mr Phan. The notice also informs Mr Phan that the particulars of this disqualification will be published in the Gazette (subsection 126A(7)). Additionally, section 344 of the SIS Act provides a recourse for those dissatisfied with the decision, allowing for a request for reconsideration within 21 days of receiving the notice of the decision. However, it is important to note that failure to comply with the Act’s provisions may also lead to civil or criminal penalties, though these are not specified in the notice.