PART 15
-
STANDARDS FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
Division 3
-
Disqualified persons
History
Div 3 heading inserted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008.
Subdivision B
-
Disqualification by the Federal Court of Australia
History
Subdiv B inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
SECTION 126H
COURT POWER OF DISQUALIFICATION
126H(1)
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)
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)
The Court may disqualify an individual, in accordance with subsection
(1)
, if satisfied:
(a)
that the individual has contravened this Act, the
Financial Sector (Collection of Data) Act 2001
or the
Financial Accountability Regime Act 2023
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.
History
S 126H(3) amended by No 68 of 2023, s 3 and Sch 1 item 87, by substituting
"
this Act, the
Financial Sector (Collection of Data) Act 2001
or the
Financial Accountability Regime Act 2023
"
for
"
this Act or the
Financial Sector (Collection of Data) Act 2001
"
in para (a), effective 15 September 2023.
126H(4)
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)
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)
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.
History
S 126H(6A) inserted by No 61 of 2013, s 3 and Sch 1 item 77, effective 1 July 2013.
126H(7)
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)
As soon as practicable after the Court disqualifies an individual under this section, the Regulator must:
(a)
give particulars of the disqualification:
(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)
by notifiable instrument, publish particulars of the disqualification.
History
S 126H(8) amended by No 69 of 2023, s 3 and Sch 4 items 25
-
27, by omitting
"
cause particulars of the disqualification to which the notice relates
"
after
"
, the Regulator must
"
, substituting
"
give particulars of the disqualification
"
for
"
to be given
"
in para (a) and substituting para (b), effective 15 September 2023. Para (b) formerly read:
(b)
to be published in the
Gazette
.
History
S 126H inserted by No 25 of 2008, s 3 and Sch 1 item 57, 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.
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