Superannuation Industry (Supervision) Legislation Amendment Act 1995 (144 of 1995)

Schedule 4   AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

52   After section 126A

Insert:

Application for waiver of disqualified status

"126B.(1) An individual may apply to the Commissioner for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if:

(a) he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and

(b) the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2).

"(2) For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is:

(a) a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or

(b) a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations.

"(3) An application must:

(a) be in writing; and

(b) be made within 14 days after the commencement of this subsection or the person's conviction, whichever is the later; and

(c) identify the offence to which the application relates; and

(d) to the extent that the court documents relating to the offence exist-be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and

(e) give consent to the Commissioner making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Commissioner believes on reasonable grounds has in its possession or control information directly relevant to the Commissioner's consideration of the application; and

(f) be signed by the applicant.

"(4) The Commissioner may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Commissioner is satisfied that there are exceptional circumstances that prevented the application from being made within that period.

"(5) The court documents are:

(a) the information or indictment against the applicant; and

(b) the transcript of the proceedings; and

(c) witness statements and affidavits; and

(d) the court's judgment and orders; and

(e) the court's reasons for judgment.

"(6) If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she:

(a) may make an application that is not accompanied by those documents; and

(b) must give the Commissioner those documents as soon as practicable after making the application.

"(7) The Commissioner must notify the applicant of any police force, agency or court of which the Commissioner intends to make inquiries.

"(8) Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.

Application must be decided within a period of time

"126C.(1) Subject to this section, the Commissioner must decide an application made under section 126B within 60 days after receiving it.

"(2) If the Commissioner thinks that it will take longer than 60 days to decide the application, the Commissioner may extend the period for deciding it by no more than 60 days.

"(3) The extension must be notified in writing to the applicant within 60 days after the Commissioner receives the application.

"(4) If the Commissioner makes an extension, the Commissioner must decide the application within the extended period.

"(5) If the Commissioner has not decided the application by the end of the day by which the Commissioner is required to decide it, the Commissioner is taken to have decided, at the end of that day, to refuse the application under subsection 126D(2).

Notifying of the outcome of an application

"126D.(1) If the Commissioner is satisfied, having regard to any of the following:

(a) the offence to which the application relates;

(b) the time that has passed since the applicant committed the offence;

(c) the applicant's age when the applicant committed the offence;

(d) the orders made by the court in relation to the offence;

(e) any other relevant matter;

that the applicant is highly unlikely to be a prudential risk to any superannuation entity, the Commissioner must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.

"(2) Despite any declaration waiving an applicant's status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if :

(a) the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or

(b) a civil penalty order has been made against the applicant; or

(c) the applicant is insolvent under administration.

"(3) If the Commissioner decides not to make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part, the Commissioner must:

(a) by notice in writing, record that he or she has so decided; and

(b) give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant:

(i) that the Commissioner has so decided and of the reasons for that decision; and

(ii) that the applicant must resign immediately and confirm that resignation, in writing, to the Commissioner; and

(iii) that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Commissioner will tell the body corporate of the applicant's status as a disqualified person.

"(4) If the Commissioner becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Commissioner must tell the body corporate that the applicant is a disqualified person.

The effect of seeking a waiver of disqualified person status

"126E.(1) If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

(c) the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection;

the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided.

"(2) On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply:

(a) if the Commissioner decides to make the declaration, the Act applies as if the person had never been disqualified; and

(b) if the Commissioner decides not to make the declaration, the person again becomes a disqualified person from the date of the decision.

"(3) If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

(c) the person makes application for such a declaration under subsection 126B(4); then:

(d) pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but

(e) if the Commissioner decides to make a declaration waiving the person's status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.

Commissioner's powers to seek further material

"126F.(1) If, to decide an application under subsection 126B(1), the Commissioner needs:

(a) further information; or

(b) the applicant's consent to the Commissioner making inquiries about the applicant from another person;

the Commissioner may ask an applicant to provide information or consent.

"(2) The Commissioner may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Commissioner an amount equal to the amount of any fees charged to the Commissioner by any law enforcement agency, regulatory agency or court for answering any inquiry by the Commissioner about the applicant if the fees:

(a) are of a kind prescribed for the purposes of this subsection; and

(b) exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount.

"(3) The Commissioner may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Commissioner is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount.

"(4) If the applicant fails to comply with the request, the Commissioner must treat the application as having been withdrawn.

"(5) Nothing in this section or in section 126B prevents the Commissioner from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.".