The AAT has upheld the Commissioner’s decision to disallow an application for waiver of the applicant’s disqualified status under the SIS Act. The applicant claimed there were exceptional circumstances that supported his case, but the Tribunal disagreed. The case turned on its facts but illustrates the high standard required to meet the “exceptional circumstances” test.
- The applicant was a director of a company that was the trustee of a regulated super fund.
- He was convicted of publishing a false statement pursuant to which he sought a financial advantage, and he was sentenced to a term of imprisonment, later altered to home detention.
- As a result of his conviction, he was subsequently a disqualified person pursuant to s 120(1) of SIS Act, which would also make the super fund a disqualified person pursuant to s 120(2)(a)(ii).
- The applicant sought a waiver of his disqualified status, but the ATO received that application (that was dated 30 April 2012) some 2 years after the date it was due.
Extension of that 14-day period can only be granted in “exceptional circumstances”, and while the Tribunal was sympathetic to the applicant’s circumstances, it considered they did not amount to exceptional circumstances under the law. The Tribunal therefore upheld the Commissioner’s decision to refuse to allow the application for waiver of the disqualified status to be brought out of time.
(AAT Case [2014] AATA 223, Re Mourched and FCT, AAT, Deutsch DP, AAT Ref: 2012/4014, 16 April 2014)
[LTN 82, 2/5/14]
Extract from the Superannuation (Industry) Supervision Act 1993
s120 – Disqualified persons
Individuals
(1) For the purposes of this Part, an individual is a disqualified person if:
(a) at any time (including a time before the commencement of this section):
(i) the individual was convicted of an offence against or arising out of a law of the Commonwealth, a State, a Territory or a foreign country, being an offence in respect of dishonest conduct; or
(ii) a civil penalty order was made in relation to the person; or
(b) the person is an insolvent under administration; or
(c) either:
(i) to the extent that the Regulator is the Commissioner of Taxation–the Regulator has disqualified the individual under section 126A; or
(ii) to the extent that the Regulator is APRA–the Federal Court of Australia has disqualified the individual under section 126H.
Bodies corporate
(2) For the purposes of this Part, a body corporate is a disqualified person if:
(a) the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is:
(i) for a person who is a disqualified person only because he or she was disqualified under section 126H–disqualified from being or acting as a responsible officer of the body corporate; or
(ii) otherwise–a disqualified person; or
(b) a receiver, or a receiver and manager, has been appointed in respect of property beneficially owned by the body; or
(c) an administrator has been appointed in respect of the body; or
(d) a provisional liquidator has been appointed in respect of the body; or
(e) the body has begun to be wound up.
Convictions
(3) A reference in this section to a person who has been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914 , or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence.
Law on spent convictions does not apply
(4) Division 3 of Part VIIC of the Crimes Act 1914 does not apply in relation to the disclosure of information about a conviction of the kind mentioned in paragraph (1)(a), if the disclosure is for the purposes of this Part.
…
S126B – Application for waiver of disqualified status
(1) An individual may apply to the Regulator 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 Regulator making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Regulator believes on reasonable grounds has in its possession or control information directly relevant to the Regulator‘s consideration of the application; and
(f) be signed by the applicant.
(4) The Regulator 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 Regulator 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 Regulator those documents as soon as practicable after making the application.
(7) The Regulator must notify the applicant of any police force, agency or court of which the Regulator 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.