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 126D NOTIFYING OF THE OUTCOME OF AN APPLICATION

126D(1)
(Repealed by No 25 of 2008)

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History

S 126D(1) repealed by No 25 of 2008, s 3 and Sch 1 item 55, effective 26 May 2008.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 126D(1) formerly read:

126D(1)
If APRA 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, APRA 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.

Note:

APRA ' s power under this subsection does not extend to self managed superannuation funds, see subsection 6(1) .

S 126D(1) amended by No 160 of 2000, s 3 and Sch 3 item 25, by inserting the Note at the end, effective 18 January 2001.

S 126D(1) amended by No 54 of 1998.

126D(1A) [Waiver of disqualified person status]

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If, 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;

the Regulator is satisfied that the applicant is highly unlikely to:

(f) contravene this Act; and

(g) do anything that would result in a self managed superannuation fund not complying with this Act;

the Regulator 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.

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126D(2) [Disqualified status despite declaration]

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.

126D(3) [Notice of decision not to waive disqualified status]

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

(a) by notice in writing, record that it 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 Regulator 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 Regulator; 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 Regulator will tell the body corporate of the applicant ' s status as a disqualified person.

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126D(4) [Notice that applicant is disqualified person]

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If the Regulator 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 Regulator must tell the body corporate that the applicant is a disqualified person.

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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)