SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

PART 15 - STANDARDS FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES  

Division 3 - Disqualified persons  

Subdivision B - Disqualification by the Federal Court of Australia  

SECTION 126H   COURT POWER OF DISQUALIFICATION  

126H(1)   [ Disqualification]  

On application by the Regulator, the Federal Court of Australia may, by order, disqualify an individual from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied:


(a) as mentioned in subsection (3), (4) or (5); and


(b) that the disqualification is justified.

Note:

For offences relating to disqualified persons, see Subdivision C .

126H(2)   [ Disqualification of trustee or officer]  

For the purposes of subsection (1), the Court may disqualify an individual from being or acting as:


(a) a trustee of:


(i) a particular superannuation entity; or

(ii) a class of superannuation entities; or

(iii) any superannuation entity; or


(b) a responsible officer of:


(i) a particular body corporate that is a trustee, an investment manager or a custodian of a superannuation entity; or

(ii) a class of bodies corporate that are trustees, investment managers or custodians of superannuation entities; or

(iii) any body corporate that is a trustee, investment manager or custodian of a superannuation entity.

126H(3)   [ Criteria for disqualification]  

The Court may disqualify an individual, in accordance with subsection (1), if satisfied:


(a) that the individual has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and


(b) that the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.

126H(4)   [ Disqualification of officer of body corporate]  

The Court may disqualify an individual, in accordance with subsection (1), who is, or was, a responsible officer of a trustee, investment manager or custodian (the body corporate ) if satisfied that:


(a) the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and


(b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and


(c) in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate - the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual.

126H(5)   [ " Fit and proper person " ]  

The Court may disqualify an individual, in accordance with subsection (1), if satisfied that the individual is otherwise not a fit and proper person to be a person referred to in subsection (2).

126H(6)   [ Relevant matters]  

In deciding whether it is satisfied as mentioned in subsection (3), (4) or (5), the Court may take into account:


(a) any matters specified in the regulations for the purposes of this paragraph; and


(b) any other matters the Court considers relevant.

126H(6A)  


In deciding whether it is satisfied as mentioned in subsection (5), the Court may also take into account any criteria for fitness and propriety that are relevant to the trustee or responsible officer set out in the prudential standards.

126H(7)   [ " Justified " disqualification]  

In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:


(a) the individual ' s conduct in relation to the management, business or property of any corporation; and


(b) any other matters the Court considers relevant.

126H(8)   [ Notice]  

As soon as practicable after the Court disqualifies an individual under this section, the Regulator must cause particulars of the disqualification to which the notice relates:


(a) to be given:


(i) if the individual is, or is acting as, a trustee of a superannuation entity - to the entity concerned; or

(ii) if the individual is, or is acting as, a responsible officer of a body corporate that is a trustee, an investment manager or a custodian of a superannuation entity - to the body corporate concerned; and


(b) to be published in the Gazette .




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