AAT decision puts past offenders on notice

The Administrative Appeals Tribunal (AAT) has upheld a decision from the Australian Securities and Investments Commission (ASIC) to refuse Superannuation Warehouse Australia’s (SWA’s) application for a limited Australian financial services licence (AFSL), after its director failed to disclose past offences.

The AAT based the finding on SWA’s sole director and nominated responsible manager, Johann Heinrich Preller, failing to:

• Demonstrate an adequate understanding of the general obligations that would apply to a licensee; and
• Disclose matters that the AAT considered materially relevant, including telling ASIC of past breaches of other laws.

In the decision, the AAT considered information referred to ASIC by the Australian Taxation Office (ATO) about the audits of self-managed superannuation funds (SMSFs) completed by Preller. While this information was provided to ASIC after the hearing had closed, the AAT agreed with ASIC that it was relevant to the licence decision and so should be considered.

“These decisions reinforce the importance of providing full and frank disclosures to ASIC and the weight placed on an applicant’s past conduct in financial services or under other legislation in determining a licence application,” ASIC executive director of assessment and intelligence, Warren Day, said of the decision.

“Applicants, and anyone else involved in preparing and lodging applications with ASIC, are on notice that a failure to disclose all relevant information runs the risk of the application being refused.”

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