Superannuation Industry (Supervision) Act 1993

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

Division 3 - Disqualified persons

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Subdivision A - Disqualification by the Commissioner of Taxation

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SECTION 126A THE REGULATOR MAY DISQUALIFY INDIVIDUALS

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126A(1)

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The Regulator may disqualify an individual if satisfied that:

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

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

Note:

For offences relating to disqualified persons, see Subdivision C .

126A(2)

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The Regulator may disqualify an individual 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.

126A(3)
The Regulator may disqualify an individual if satisfied that the individual is otherwise not a fit and proper person to be a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian.

126A(4)
A disqualification takes effect on the day on which it is made.

126A(5)
The Regulator may revoke a disqualification on application by the disqualified individual or on its own initiative. A revocation takes effect on the day on which it is made.

126A(6)
The Regulator must give the individual written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.

126A(7)

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As soon as practicable after the Regulator gives a notice under:

(a) subsection (6) of this section; or

(b) subsection 344(6) (result of internal review);

the Regulator must, by notifiable instrument, publish particulars of the notice.

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History

S 126A substituted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008.

No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:

Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).

(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.

(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.

(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.

New references to court orders to include references to disqualifications by the Regulator

References

Item Column 1
Reference Column 2
Provision of the Superannuation Industry (Supervision) Act Column 3
Reference taken to be included

1 an individual disqualified under section 126A by the Commissioner of Taxation subparagraph 120(1)(c)(i) an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)

2 an individual disqualified under section 126H by the Federal Court of Australia subparagraph 120(1)(c)(ii) an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)

3 an individual disqualified under section 126H paragraph 126J(1)(a) an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)

4 an order made under section 126H paragraph 126J(1)(a) and subsection 126J(2) a disqualification made by APRA under section 120A that is continued in force under subitem (2)

5 a person disqualified under section 130D section 130E ,
section 131C a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)

6 an order made under section 130D section 130E a disqualification made by APRA under section 131 that is continued in force under subitem (3)

(5)
Sections 126A , 126H , 130D and 131 of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.

Waivers of disqualifications

(6)
If:

(a) either:

(i) a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or

(ii) a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and

(b) APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.

Note:

See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.

(7)
A declaration by APRA under section 126D of the Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.

(8)
If:

(a) a declaration in relation to a person continues in force under subitem (7); and

(b) after 26 May 2008, an order is made under section 126H or 130D of the Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection 126H(2) or 130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.

Review proceedings on foot at commencement

(9)
The amendments to the Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:

(a) any request, in relation to a decision made by APRA or the Commissioner of Taxation under section 120A , 126D or 131 of that Act, for a review that is pending under section 344 of that Act immediately before 26 May 2008; or

(b) any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section 120A , 126D or 131 of that Act that has been confirmed or varied under subsection 344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or

(c) any appeal to a court in relation to a proceeding referred to in paragraph (b).

(10)
If a disqualification under section 120A or 131 , or a declaration under section 126D , of the Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.

S 126A formerly read:

SECTION 126A DISQUALIFIED PERSONS NOT TO BE CUSTODIANS OF SUPERANNUATION ENTITIES
126A(1) Basic prohibition.
A person must not intentionally be, or act as, a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.

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History

S 126A(1) amended by No 160 of 2000, s 3 and Sch 3 item 16, by omitting " (other than a self managed superannuation fund) " after " superannuation entity " , effective 18 January 2001.

S 126A(1) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting " a self managed superannuation fund " for " an excluded fund " , effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

126A(2) Prohibition - responsible officer of body corporate.
A person must not intentionally be, or act as, a responsible officer of a body corporate that is a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.

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History

S 126A(2) amended by No 160 of 2000, s 3 and Sch 3 item 16, by omitting " (other than a self managed superannuation fund) " after " superannuation entity " , effective 18 January 2001.

S 126A(2) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting " a self managed superannuation fund " for " an excluded fund " , effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

S 126A(2) substituted by No 144 of 1995.

126A(3) - (6)
(Omitted by No 144 of 1995)

S 126A inserted by No 140 of 1994.

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New references to court orders to include references to disqualifications by the Regulator
References
Item	Column 1 Reference	Column 2 Provision of the Superannuation Industry (Supervision) Act	Column 3 Reference taken to be included
1	an individual disqualified under section 126A by the Commissioner of Taxation	subparagraph 120(1)(c)(i)	an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1)
2	an individual disqualified under section 126H by the Federal Court of Australia	subparagraph 120(1)(c)(ii)	an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2)
3	an individual disqualified under section 126H	paragraph 126J(1)(a)	an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2)
4	an order made under section 126H	paragraph 126J(1)(a) and subsection 126J(2)	a disqualification made by APRA under section 120A that is continued in force under subitem (2)
5	a person disqualified under section 130D	section 130E , section 131C	a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3)
6	an order made under section 130D	section 130E	a disqualification made by APRA under section 131 that is continued in force under subitem (3)