Notice of Disqualification – Terry Kobler – 16 January 2024

Overview

The Superannuation Industry (Supervision) Act 1993 (SISA) was enacted to provide a regulatory framework for the supervision of the superannuation industry, with a particular emphasis on ensuring that superannuation entities are managed responsibly and in the best interests of their members. This Act was introduced to address issues and gaps in the regulation of superannuation trustees, aiming to protect the retirement savings of Australians by preventing misconduct and ensuring compliance with legislative standards. The SISA is administered by the Australian Parliament, with the policy objective of safeguarding the financial well-being of superannuation fund members through rigorous oversight and accountability measures. The Act empowers the Commissioner of Taxation to disqualify individuals who have acted irresponsibly in their capacity as responsible officers of superannuation entities, thereby reinforcing the integrity and reliability of the superannuation system.

Scope and Application

The Superannuation Industry (Supervision) Act 1993 (SISA) applies to individuals and entities involved in the management of superannuation entities, including trustees, responsible officers, and corporate trustees. This Act has a national jurisdictional reach, governing conduct and transactions within the superannuation industry across Australia. The Act's scope encompasses serious contraventions by responsible officers or corporate trustees of the regulations, leading to potential disqualification from managing superannuation entities. The disqualification process involves a delegate of the Commissioner of Taxation determining that the individual has grounds for disqualification based on the seriousness of the contraventions while they were a responsible officer. The disqualification takes immediate effect upon issuance and is subject to possible revocation at the discretion of the Commissioner. Additionally, the Act imposes criminal penalties for disqualified persons who continue to act as trustees, investment managers, or custodians of superannuation entities, with a maximum penalty of two years imprisonment. Any disqualified person who is dissatisfied with the decision may request reconsideration from the Commissioner within 21 days of receiving the notice.

Key Provisions

The primary operative sections relevant to this disqualification notice are subsections 126A(2), 126A(6) and 126A(7) of the Superannuation Industry (Supervision) Act 1993 (SISA). Subsection 126A(2) allows the delegate of the Commissioner of Taxation to disqualify an individual if they are satisfied that the corporate trustee of one or more superannuation entities has contravened the SISA on one or more occasions and the individual was a responsible officer at the time of the contraventions. Subsection 126A(6) mandates that the delegate must give the individual written notice of the disqualification, which is evidenced in this notice dated 16 January 2024. Furthermore, subsection 126A(7) stipulates that details of the disqualification notice will be published as a Notifiable Instrument in the Federal Register of Legislation. The Act imposes several obligations on Terry Kobler. Firstly, under section 126K, he is prohibited from being, or acting as, a trustee, investment manager, or custodian of a superannuation entity if he is aware that he has been disqualified. This extends to any role as a responsible officer or a body corporate in the aforementioned capacities. Secondly, Terry must adhere to any additional requirements or conditions stipulated by the Commissioner of Taxation, although none are explicitly mentioned in this notice. Breaching the provisions of section 126K by knowingly acting in a prohibited role as a disqualified person is a criminal offence under the SISA. The maximum penalty for this offence is two years imprisonment. Additionally, Terry has the right to seek reconsideration of the disqualification decision within 21 days of receiving notice, as per section 344 of the SISA. This request must be made in writing and must specify the reasons why he believes the decision is incorrect. Furthermore, under subsection 126A(5) of the SISA, the disqualification can be revoked either on the initiative of the Commissioner of Taxation or upon a written application from Terry himself.