Under the Superannuation Industry (Supervision) Act 1993 (SIS Act) a disqualified person cannot be a trustee or director of a corporate trustee of a self managed superannuation fund. Where a person is disqualified because of a conviction, they can apply for a waiver of the disqualification status within 14 days from the date of conviction. In Etmekdjian v FC of T [2020] AATA 3821, the applicant was disqualified by the Commissioner as a result of being convicted of a Commonwealth offence in respect of dishonest conduct. The applicant pleaded guilty and was sentenced on 11 April 2017.
The applicant applied to waive the disqualified person status on 23 February 2018, which was more than 14 days after he was convicted of the offence. The Commissioner refused to exercise his discretion under the SIS Act to issue the waiver. Before the AAT, the applicant argued that there were exceptional circumstances which justify exercising the discretion. The AAT upheld the Commissioner’s decision and held that exceptional circumstances must be genuinely unusual or rare. The length of delay in this case is substantial.
The AAT considered the following matters identified by the applicant and held that they do not qualify as exceptional circumstances preventing him from making the application on time:
The delay in obtaining a transcript from the District Court appeal - the applicant could make the application and provide the court documents when they became available;
The delay involved in dealing with the various regulatory authorities - the applicant did not need to resolve those interactions before making the application;
The applicant’s health conditions and stress did not prevent the applicant from making the application within the time limit; and
The applicant’s apparent misunderstanding of the date of conviction.
To discuss further or for more information please contact:
Phil Broderick
Principal
M +61 419 512 801 | T +61 3 9611 0163
E: pbroderick@sladen.com.au
Philippa Briglia
Senior Associate
T +61 3 9611 0173
E pbriglia@sladen.com.au
Lucy Liang
Graduate Lawyer
E lliang@sladen.com.au
