Notice of Disqualification – Peter Kennedy - 16 April 2025

Overview

The Superannuation Industry (Supervision) Act 1993 was enacted to address the need for regulation and supervision within the superannuation industry in Australia, aiming to protect the interests of superannuation fund members. The Act was introduced by the Commonwealth Parliament with a policy objective to ensure that superannuation trustees, investment managers, and custodians comply with their obligations under the law, thus safeguarding the financial well-being of superannuation fund members. In the case of Peter Kennedy, the Act has been applied to disqualify him from acting as a responsible officer of a corporate trustee of a superannuation entity due to contraventions of the Act, highlighting the enforcement mechanisms in place to maintain compliance and integrity within the superannuation sector.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to responsible officers of corporate trustees of superannuation entities, which includes entities that are trustees, investment managers, or custodians of superannuation funds. The disqualification under this Act applies to individuals such as Peter Kennedy, who, while serving as a responsible officer, has seen their associated corporate trustee contravene the provisions of the SISA. The geographic reach of this Act is national, as it is a Commonwealth Act, affecting individuals and entities across Australia. The disqualification is immediate upon issuance, and the consequences include a prohibition from acting or being involved in any capacity with superannuation entities as mentioned above. Additionally, the Act allows for the disqualification notice to be published as a Notifiable Instrument in the Federal Register of Legislation, ensuring transparency and public notification of such actions. The Act also specifies that any individual who knowingly continues to act in a capacity prohibited by the disqualification commits an offence, with penalties including up to two years imprisonment. This Act provides avenues for reconsideration of the decision by the Commissioner if the disqualified individual contests the decision within 21 days of receiving notice.

Key Provisions

The Superannuation Industry (Supervision) Act 1993 (SISA) contains provisions for disqualifying individuals from acting in certain roles within superannuation entities. Under subsection 126A(6) of the SISA, a delegate of the Commissioner of Taxation can issue a notice of disqualification if they are satisfied that a corporate trustee of a superannuation entity has contravened the SISA, and that the person, being a responsible officer at the time of the contraventions, has grounds for disqualification. This means that if a trustee company has broken the law in some way, and the individual in question was in a position of responsibility within that company at the time, they can be disqualified from future roles. In this instance, Peter Kennedy has been disqualified due to his role in a corporate trustee that contravened the SISA. The Act imposes several obligations on the parties it governs. Trustees of superannuation entities must ensure they comply with all provisions of the SISA, and responsible officers must act in good faith and with due care. Furthermore, the Act requires responsible officers to take reasonable steps to ensure the entity complies with the SISA. In this case, the disqualification notice indicates that Peter Kennedy, as a responsible officer, did not fulfil these obligations when the contraventions occurred. Breaching the provisions of the SISA can lead to severe consequences. Under section 126K of the SISA, 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 means that if Peter Kennedy were to act in any of these roles after his disqualification, he could face criminal charges and potentially significant jail time. Additionally, under subsection 126A(5) of the SISA, the disqualification may be revoked either by the delegate of the Commissioner of Taxation on their own initiative or upon a written application by Peter Kennedy. If Peter Kennedy is unsatisfied with the decision and believes it to be incorrect, he can request the Commissioner to reconsider the decision within 21 days of receiving the notice, as stipulated in section 344 of the SISA.